Dave Karoly, post: 368079, member: 94 wrote: Aborigine Lumber Co. v. Hyman, 245 Cal. App. 2d 938 (1966)
The blazed boundary was the original boundary between the north half and the south half from the facts given in the case (it was established jointly by the Grantor and Grantee).
Okay, I'll bite. Is the idea that a sale of land described as "the North 1/2 of the NE 1/4 of Section 35" once Section 35 has left the government is strictly a matter between private owners with the description as "North 1/2" being merely understood in the sense of "one of two approximately equal parts into which any tract capable of division may be divided" or does it necessarily refer to the original government subdivision?
If the phrase "North 1/2" admits multiple constructions under California law, then, sure, it would seem not to be any definite part at all, merely something that resembles one of two equal parts. However, in any event calling the division "original" flies in the face of the the fact that the line in question did not exist except as a notion at the time of the sale. The parties did not have it in view on the ground. It is a line as established after the sale to divide the tract into two roughtly equal parts.
Surely you would not assert, for example, that the 1941 survey necessarily fixed any 1/16 corners that would control the subdivision of other 1/4 sections, right? If not, doesn't that recognize the true provisional nature of what was done?
I'd think that one obvious test of whether a survey lines is "original" or merely equitably established is whether an error in the location of the line would have been corrigible after the conveyance of the land. In the case of an original survey, the answer is typically "no" because that is what the parties had in view, both had the means of testing, and caveat emptor.
In the case of a conveyance made under a description such as "North 1/2" of a certain identifiable tract of land, I'd ordinarily expect that any first, second, third, or fourth survey of the division line could be corrected until the line had been equitably established in some particular location. As a practical matter "equitably established" means "more of hassle to contest than any benefit that might be gained through its relocation". That has nothing to do with the concept of original surveys as conventionally used, though.
Jim Frame, post: 368080, member: 10 wrote: I don't have a problem accepting established boundaries even when they disagree with record (though I may quibble about the definition of "established"), but the situation that bothers me is when a "first survey" (as opposed to the work of the platting surveyor) is held to establish not just the boundary between two contiguous owners, but also the location of the platted line even though that location is in substantial disagreement with other evidence within the same subdivision.
I recall in hazy detail a case that was brought up in this forum in which an ancient subdivision showed only a handful of monuments on its exterior, none proximate to the lots in question. A surveyor had gone to a great deal of effort in assembling evidence throughout much of the subdivision and used that in re-creating the overall scheme, most of which fit relatively well with the few monuments and improvements that were extant at the time. However, a court ruled that one line between two owners fixed the line between their lots, and that fixed "lot line" was to be used in proportioning the locations of other lots within the tier. This resulted in a significant disagreement (significant enough to go to court over) with the work of the surveyor who had taken a more comprehensive approach, and that didn't seem reasonable to me.
Perhaps someone with a better memory than me can remember the specifics.
That would be Knerr v Mauldin. There were a number of surveyors involved, and CLSA wrote an amicus brief. Jeff Lucas excoriated the Association for that.
eapls2708, post: 368020, member: 589 wrote: JBrinkworth - The cases that are discussed in nearby content of EPBL all have some important extrinsic fact that the case turned on such as the after-deed establishment was unilateral rather than a mutual act of the affected landowners, the surveyor did not utilize controlling elements, or the boundary had already been established by some non-record act and no direct evidence of the corners (mons/stakes) remained, etc. They give no case that hinged specifically on whether the survey was specifically called for or occurred after the description. There is always some other significant factor involved.
I'll have to take a look in PE when I get home.
https://scholar.google.com/scholar_case?case=4056278585233409905&q=rivers+v+lozeau&hl=en&as_sdt=6,43&apos ;">Rivers v. Lozeau was the case I had in mind. Lucas attributes Brown's 'First Surveyor' to this case. (See PE, pages 56-62).
Like I said earlier, I believe this case has more to do with the birth of the 'first surveyor' concept rather than using it to turn a case.
I wonder if Brown could have predicted the fallout when he first argued its prominence?
JBrinkworth, post: 368110, member: 6179 wrote: https://scholar.google.com/scholar_case?case=4056278585233409905&q=rivers+v+lozeau&hl=en&as_sdt=6,43&apos ;">Rivers v. Lozeau was the case I had in mind. Lucas attributes Brown's 'First Surveyor' to this case. (See PE, pages 56-62).
Like I said earlier, I believe this case has more to do with the birth of the 'first surveyor' concept rather than using it to turn a case.
I wonder if Brown could have predicted the fallout when he first argued its prominence?
Rivers was a self-fulfilling prophesy. The author of a major text testified in that case, I believe. The case is cited in a later edition.
Kent McMillan, post: 368081, member: 3 wrote: Okay, I'll bite. Is the idea that a sale of land described as "the North 1/2 of the NE 1/4 of Section 35" once Section 35 has left the government is strictly a matter between private owners with the description as "North 1/2" being merely understood in the sense of "one of two approximately equal parts into which any tract capable of division may be divided" or does it necessarily refer to the original government subdivision?
If the phrase "North 1/2" admits multiple constructions under California law, then, sure, it would seem not to be any definite part at all, merely something that resembles one of two equal parts. However, in any event calling the division "original" flies in the face of the the fact that the line in question did not exist except as a notion at the time of the sale. The parties did not have it in view on the ground. It is a line as established after the sale to divide the tract into two roughtly equal parts.
Surely you would not assert, for example, that the 1941 survey necessarily fixed any 1/16 corners that would control the subdivision of other 1/4 sections, right? If not, doesn't that recognize the true provisional nature of what was done?
The east-west centerline of Section 35 did not physically exist prior to 1942. It wasn't patented out of the U.S. that way. The east half of the northeast quarter was patented out and the "middle" half of the entire Section was patented out (320 acres, E1/2 of W1/2 and W1/2 of E1/2).
The facts are clear; Mr. Cogburn and Union Lumber Company were the original parties to the east-west centerline, creating it as a boundary legally. Then they took steps to establish the boundary. The other property owners in the area are not required to accept that boundary; however, what often happens in difficult country like that is the owners to the west or east accept the boundary established by Union's employees because it's expedient and cheap, but they don't have to.
Dave Karoly, post: 368120, member: 94 wrote: The east-west centerline of Section 35 did not physically exist prior to 1942. It wasn't patented out of the U.S. that way. The east half of the northeast quarter was patented out and the "middle" half of the entire Section was patented out (320 acres, E1/2 of W1/2 and W1/2 of E1/2).
The facts are clear; Mr. Cogburn and Union Lumber Company were the original parties to the east-west centerline, creating it as a boundary legally. Then they took steps to establish the boundary. The other property owners in the area are not required to accept that boundary; however, what often happens in difficult country like that is the owners to the west or east accept the boundary established by Union's employees because it's expedient and cheap, but they don't have to.
But the question was whether a description of land as the North 1/2 of the NE 1/4 of Section 35 is considered as a matter of law in California to mean that part of the NE 1/4 bounded by a line connecting the midpoints of opposite sides or whether California courts have held that the description can mean a number of other things, too. If the meaning of "North 1/2" includes "one of two approximately equal parts into which the tract may be divided" and "that part contining half by area of the contents of tract bounded by a line run East and West", then obviously the description of the tract as the "North 1/2" is ambiguous and the actions of the parties is valuable evidence of their intentions.
Kent McMillan, post: 368081, member: 3 wrote: Okay, I'll bite. Is the idea that a sale of land described as "the North 1/2 of the NE 1/4 of Section 35" once Section 35 has left the government is strictly a matter between private owners with the description as "North 1/2" being merely understood in the sense of "one of two approximately equal parts into which any tract capable of division may be divided" or does it necessarily refer to the original government subdivision?
If the phrase "North 1/2" admits multiple constructions under California law, then, sure, it would seem not to be any definite part at all, merely something that resembles one of two equal parts. However, in any event calling the division "original" flies in the face of the the fact that the line in question did not exist except as a notion at the time of the sale. The parties did not have it in view on the ground. It is a line as established after the sale to divide the tract into two roughtly equal parts.
Surely you would not assert, for example, that the 1941 survey necessarily fixed any 1/16 corners that would control the subdivision of other 1/4 sections, right? If not, doesn't that recognize the true provisional nature of what was done?
It depends on the dates of the patents, after a certain date (as shown on Loyals map in a different thread) the government only patented a portion of any land, they reserved interest, first coal then all minerals. In those cases you have to be very careful to remember you are surveying not just fee but also federal mineral estate. Since we are discussing western lands that is a distinct possibility.
As far as the "original" surveyor concept, the argument is that the entryman has every right to survey his lands and if the survey isn't perfect that is understandable, expected, and should not be an issue.
Now the BLM/GLO disregards even huge errors in their own surveys, original of course, but often even retracements, yet they seem to have problems accepting any private surveys that aren't close to perfect.
Kent McMillan, post: 368125, member: 3 wrote: But the question was whether a description of land as the North 1/2 of the NE 1/4 of Section 35 is considered as a matter of law in California to mean that part of the NE 1/4 bounded by a line connecting the midpoints of opposite sides or whether California courts have held that the description can mean a number of other things, too. If the meaning of "North 1/2" includes "one of two approximately equal parts into which the tract may be divided" and "that part contining half by area of the contents of tract bounded by a line run East and West", then obviously the description of the tract as the "North 1/2" is ambiguous and the actions of the parties is valuable evidence of their intentions.
The California Courts have ruled that words in descriptions should be applied using their plain meaning. Therefore half means half by area unless there is some evidence to suggest otherwise, such as the tract was created by a Government patent or the parties expressly state in the description that they mean by government measure. Usually in a regular Section it is not a big issue but in a closing Section where the government shows unequal halves on the Plat it is a question of fact what the parties intended by "half."
As a matter of law, the two halves are half of the quarter section but as a matter of fact they may not be exactly half and half. The Deed creates the boundary; the actions of the parties establishes it.
I'm trying to look at these cases more like a Judge and less like a Surveyor. Judges look at one boundary at a time; Surveyors want to resolve the whole County simultaneously, okay maybe just the whole Township.
Dave Karoly, post: 368130, member: 94 wrote: The California Courts have ruled that words in descriptions should be applied using their plain meaning. Therefore half means half by area unless there is some evidence to suggest otherwise, such as the tract was created by a Government patent or the parties expressly state in the description that they mean by government measure. Usually in a regular Section it is not a big issue but in a closing Section where the government shows unequal halves on the Plat it is a question of fact what the parties intended by "half."
As a matter of law, the two halves are half of the quarter section but as a matter of fact they may not be exactly half and half. The Deed creates the boundary; the actions of the parties establishes it.
So, if I understand you, in California law the description of a tract as the "North 1/2" of a certain tract is indefinite as to the location of the division line, and only states an intention to convey half the contents of the tract off of one of its ends? That is a much, much different situation than one where the boundary as described in the deed is definite, even if not previously marked on the ground.
1/2 is always 1/2 the area in the PLSS system, except when surveying by the PLSS rules the north 1/2 and south 1/2 will seldom = the same amount of land. However, by law even when they aren't equal (almost always) they are equal.
MightyMoe, post: 368136, member: 700 wrote: 1/2 is always 1/2 the area in the PLSS system, except when surveying by the PLSS rules the north 1/2 and south 1/2 will seldom = the same amount of land. However, by law even when they aren't equal (almost always) they are equal.
Dave said that the phrase "half" would not be understood in a technical (read: PLSS) sense in California law in the situation he mentioned, though.
What that leaves is a construction of the deed that conveys half of the area, but without specificity as to the division line location. Once that division is made, all subsequent conveyances of "half" refer to one of the parts of the division.
Kent McMillan, post: 368141, member: 3 wrote: Dave said that the phrase "half" would not be understood in a technical (read: PLSS) sense in California law in the situation he mentioned, though.
What that leaves is a construction of the deed that conveys half of the area, but without specificity as to the division line location. Once that division is made, all subsequent conveyances of "half" refer to one of the parts of the division.
In the PLSS there are rules governing 1/2's and 1/4's and how they are to be surveyed.
Once patented they need to be surveyed by those rules.
For instance if the N1/2NE1/4 was patented, it is likely declared to be 80Ac. on the face of the patent and the south 1/2 will also be 80Ac.
Federal law states that the parcel contains the acreage as patented, regardless if the north 1/2 is shown to have 81 and the south 1/2 has 79, it's fixed by law as both having 80 acres.
In that case you have followed the PLSS system and Cali law, and you have broken up a 1/4 section into two parcels unequal, but equal.
Of course a person can break up a 160 acre government 1/4 anyway he wishes, but N1/2NE1/4 does have a definition, and it won't be exactly a surveyed 1/2 but it will be a legal 1/2 by fed statute.
Hope that clears it up.
That "half" rule in CA comes from a case out of a non-standard section that had some excess along the western edge. A lot of people want to apply that in all PLSS situations in the State, but to my knowledge, that hasn't been tested in a regular section and I believe that whether or not it would be found to apply in a regular section would come down to which side had the better lawyer and the better expert surveyor. If the original case (Wood v Mandrilla) had involved a regular section, I doubt that a "half by area" rule would have come out of it.
MightyMoe, post: 368148, member: 700 wrote: Of course a person can break up a 160 acre government 1/4 anyway he wishes, but N1/2NE1/4 does have a definition, and it won't be exactly a surveyed 1/2 but it will be a legal 1/2 by fed statute.
Hope that clears it up.
Actually, according to Dave's information, the North 1/2 wasn't patented as such. It was created by a subsequent transaction between private owners. I take that to mean that the North 1/2 of the NE 1/4 was not a separate part shown on the map of the government survey that identified the section of which it was a part.
I'm pretty sure that some courts in the Western US have held that the phrase "half" in that situation does not have the technical (read: PLSS) meaning that you seem to claim it necessarily does. I'm sure that the Californians can better state California law on that point, though.
Naturally, once one uses the word "half" in a sense other than a BLM cookbook technical one, yet another meaning of "half" as "one of two approximately equal parts into which a thing has been divided" might also apply. That would seems to apply to subsequent transactions in Dave's case after the division of the NE 1/4 into separate ownerships.
eapls2708, post: 368156, member: 589 wrote: That "half" rule in CA comes from a case out of a non-standard section that had some excess along the western edge. A lot of people want to apply that in all PLSS situations in the State, but to my knowledge, that hasn't been tested in a regular section and I believe that whether or not it would be found to apply in a regular section would come down to which side had the better lawyer and the better expert surveyor. If the original case (Wood v Mandrilla) had involved a regular section, I doubt that a "half by area" rule would have come out of it.
Those guys setting up the PLSS were smart, they understood even back then that a surveyor with a black box would come along and start creating chaos by splitting land up "exactly" over and over, and each time lines would shift, so they took it out of the surveyors hands, and said an 80 acre patent is 80 acres forever as broken out of a section by the rules......
They didn't want the button pushers stenciling little dimples all over monumentsB-)
I don't work in Cali, but I assume when a typical government 40 or 80 is described it's broken out like the PLSS rules define it.
eapls2708, post: 368156, member: 589 wrote: That "half" rule in CA comes from a case out of a non-standard section that had some excess along the western edge. A lot of people want to apply that in all PLSS situations in the State, but to my knowledge, that hasn't been tested in a regular section and I believe that whether or not it would be found to apply in a regular section would come down to which side had the better lawyer and the better expert surveyor. If the original case (Wood v Mandrilla) had involved a regular section, I doubt that a "half by area" rule would have come out of it.
The Washington Supreme Court case of Robinson v. Taylor 123 Pac 444 (1912) dealt with the question of the meaning of the term "half" when applied to a tract of land should be understood in its ordinary sense, rather what the court called a "technical" one, referring to a half formed by connecting midpoints of opposite sides.
In particular, the court held that :
"The word 'half' has never acquired any such technical significance in reference to other plats than those of the governmental survey. Its ordinary meaning as a quantitative term, in the absence of any qualifying words in the context, was therefore its only possible meaning, and parol evidence of a different intention was properly excluded."
What I get out of that is that if the half in question is delineated upon the plat of the government survey and the description is by reference to the survey, then that admits the technical (read: PLSS) sense of "half". But if the half was not established by that government survey (in Dave's case, the 1/16 corners weren't set), then ordinary usage controls the construction of the deed as to quantity.
MightyMoe, post: 368163, member: 700 wrote: Those guys setting up the PLSS were smart, they understood even back then that a surveyor with a black box would come along and start creating chaos by splitting land up "exactly" over and over, and each time lines would shift, so they took it out of the surveyors hands, and said an 80 acre patent is 80 acres forever as broken out of a section by the rules......
Except in Dave's case the North 1/2 of the NE 1/4 did not leave the government as such and I didn't get the idea it was either shown upon the plat of the government survey or was actually marked on the ground by that survey.
What that would appear to create is a transaction between private parties that is a conveyance of a North half of an identifiable tract. Once that division had been made by survey then any subsequent sale of the "North 1/2" would refer to the part as divided, which is also a recognized meaning of the word "half". That strikes me as an excellent example of boundary stability.
I figured out what happened in the Aborigine Case. I have the Surveys but they are TIFF files so can't upload them.
Union Lumber Company sold 1240 acres to Russel H. Woodward in 1939 and Thorne Homes (RCE 2900 & LS1940) filed a Record of Survey in 1941. The 1240 acres is generally north of Pudding Creek. It appears that the property was sold by metes and bounds and monuments set by Holmes. He shows the Sections on the map but no monuments; it just shows the general relationship of the Sections to the Woodward 1240 acre tract. This is filed in Map Case 1, Drawer 8, Page 12 of Mendocino County Records (1941). This map shows the northeast corner of Section 35 several hundred feet north of Pudding Creek.
George Rau (LS3117) did a Record of Survey for Aborigini Lumber Co in 1962. He surveyed most of Section 35 and monumented the east-west centerline of the northeast quarter. He set the northeast corner of Section 35 on the north bank of Pudding Creek in accordance with the government field notes. He also thinks he found one bearing tree which is down in the creek. It was a 12" redwood in the original notes (that is a twig of a redwood tree in an old growth forest). He says it is a stub that is down, partly in the creek. This is filed in Map Case 2, Drawer 2, Page 27 of Mendocino County Records (1962).
The Holmes map appears to have the Sections roughly correct east and west but too far north if Rau is to be believed. Holmes must've had some reason to believe the Sections should be further north. Rau is mostly relying on topographic calls to reestablish corners.
Kent, you've brought up some good situations where a "first" survey would not hold, but as I read the situations you describe, there is some other basic problem that is of equal or greater importance. The surveyor didn't have the authority to establish the boundary; The surveyor didn't tie his survey to the controlling corners of the parent parcel; there was gross error involved; or the land on each side of the line was occupied and one of the landowners had some reason to believe the line as marked was incorrect - no mutual acceptance.
Possibly it's different in TX, but I doubt it. Conveyance instruments create parcels, but the act of marking the intended limits of the parcels on the ground for the first time by someone with authority to do so creates the boundaries.
There is an element of acquiescence, or more accurately, acquiescence in the boundaries marked is an element of every established boundary, original, "first", or otherwise.
Many, if not most of the early surveyors were either ones who had worked on the GLO surveys of the mid & late 1800s, or were the landowners (entrymen) themselves. There are numerous instances where discrepancies between the GLO record and the actual locations of the established corners are well in excess of 100'. When Congress passed the law in 1805 (or was it 1803?) that declared that the corners exist where they were set and are legally without error in location, they were merely codifying a principle that was already recognized in common law. I don't know of any states that have a parallel statute for corners established by local surveyors, but most, if not all jurisdictions in the US recognize establishment doctrines to one extent or another.
The courts have long recognized measurements as being among the poorest or least reliable elements of descriptions because experience shows that even skilled surveyors cannot always reliably reproduce the measurements of an earlier skilled surveyor. Moreover, they have long recognized that it was often not skilled surveyors making some or all of the measurements. So they typically give pretty wide latitude where differences can be attributed to differences in measurement.
In Aborigine, the parties mutually established or caused the establishment of their common boundary. There was approximately 100' of error, but the results appeared reasonable to both parties, so they accepted the line. The magnitude of the measurement errors wasn't discovered until sometime later, but it hadn't been enough to alert or alarm the original parties and they each executed actions of ownership in reliance on the marked line. Their actions subsequent to the conveyances by which they took possession testified to their interpretation of the conveyances and the boundary intended. Because of those facts, approximately half was close enough to half. Given the history of typical discrepancies in the PLSS system, 100 feet did not and in similar circumstances may still not constitute gross error.
Any time a parcel is described as a portion of a larger division, by distance, or by quantity, the boundary locations must be determined by measurement and/or calculations based on those measurements. Measurements are recognized as being unreliable, but that works against the recognition of the importance of stability of boundaries. Boundary stability has been deemed of higher importance, so courts are very hesitant to reject established boundaries and must have a better reason, or more reasons than that the original line was placed according to poor measurements. When those other reasons cannot be found, poorly measured boundaries, even if first placed on the ground decades after the first conveyance, will stand with the same dignity as if it had been made prior to the conveyance and the conveyance called for the survey.