I am working on a boundary survey of the lower one-half of a farm that was formerly 92.40 acres. The entire farm was made up of two tracts, 87.40 acres and 5 acres. The 87.40 acre tract has a good description; the 5 acre tract does not but I have figured out where it was located, based on a name mentioned in the description and information gathered from other property owners in the area.
The description of the division line between the upper one-half and the lower one-half seems to contradict itself. It is written as follows:
The division line between the said lower one-half of said land and the upper one-half, begins at a point in the right-of-way line of said agreed Kilgore Creek Road half-way between the extreme lower and agreed upper corners of said two tracts of land fronting on said Kilgore Creek Road, or Creek, about 1500 feet.
Thence from said beginning point away from the creek and road up the hill in a straight line to the extreme back boundary line of said land to a point midway between the extreme back corners of said land, so that each of the two halves would be approximately the same size and will contain about 46.20 acres, be the same more or less, grantor retaining the upper half, including the second tract.
It was agreed by contract between the parties hereto that said division line should follow, so far as practical, the natural topography and contour of the land, so as to be to the greatest benefit of the both parties, and that in the event the parties agree to have a survey made, the same shall follow substantially the above mentioned division line, and at the same time comply as near as may be with said agreement, and the parties agree to execute further instruments, if necessary, in conformity with such survey.
This is rural, mountainous land. In the event that nothing is found along the boundary that would suggest establishment (very likely based on preliminary observation), which of those descriptions would control the location?
I have already spoken with my client and the owner of the upper one-half and told them that it may be necessary to prepare and sign a boundary line agreement to settle this but in the event of a disagreement, which would you hold? Why?
> I am working on a boundary survey of the lower one-half of a farm that was formerly 92.40 acres. The entire farm was made up of two tracts, 87.40 acres and 5 acres. The 87.40 acre tract has a good description; the 5 acre tract does not but I have figured out where it was located, based on a name mentioned in the description and information gathered from other property owners in the area.
>
> The description of the division line between the upper one-half and the lower one-half seems to contradict itself. It is written as follows:
>
> The division line between the said lower one-half of said land and the upper one-half, begins at a point in the right-of-way line of said agreed Kilgore Creek Road half-way between the extreme lower and agreed upper corners of said two tracts of land fronting on said Kilgore Creek Road, or Creek, about 1500 feet.
>
> Thence from said beginning point away from the creek and road up the hill in a straight line to the extreme back boundary line of said land to a point midway between the extreme back corners of said land, so that each of the two halves would be approximately the same size and will contain about 46.20 acres, be the same more or less, grantor retaining the upper half, including the second tract.
>
> It was agreed by contract between the parties hereto that said division line should follow, so far as practical, the natural topography and contour of the land, so as to be to the greatest benefit of the both parties, and that in the event the parties agree to have a survey made, the same shall follow substantially the above mentioned division line, and at the same time comply as near as may be with said agreement, and the parties agree to execute further instruments, if necessary, in conformity with such survey.
>
> This is rural, mountainous land. In the event that nothing is found along the boundary that would suggest establishment (very likely based on preliminary observation), which of those descriptions would control the location?
>
Form my first reading of this, there is only 1 line: It was agreed by contract between the parties hereto that said division line should follow, so far as practical, the natural topography and contour of the land, so as to be to the greatest benefit of the both parties, and that in the event the parties agree to have a survey made, the same shall follow substantially the above mentioned division line, and at the same time comply as near as may be with said agreement, and the parties agree to execute further instruments, if necessary, in conformity with such survey.
Dig deeper, the question that needs answered is "did the original parties fulfill the contract of establishing the line"? If so, how and where? If not, you may need to put on your negotiator hat and get the current parties to fulfill the contact (establish the line) or make a new contract and/or line.
> I have already spoken with my client and the owner of the upper one-half and told them that it may be necessary to prepare and sign a boundary line agreement to settle this but in the event of a disagreement, which would you hold? Why?
If the line has not been established per the contract, how can you establish it for them? You can't.
I think you need to survey the entire parcel to see what the acreage really is.
Then see if the straight line as described comes anywhere close to a 50-50 split.
Then evaluate the natural features in the vicinity of that line to see if you can figure out what they were thinking.
Get both sides to agree to something once you show them the facts and have them enter into a boundary line agreement.
Perhaps I missed it, but are the original owners of the upper and lower halves still living and if so do they still own their respective halves?
:good:
I like that answer.
note re:
> ....said division line should follow, so far as practical, the natural topography and contour of the land, so as to be to the greatest benefit of the both parties,
How could that be staked? If it were a part of the legal description, and not just something to be executed per contract, I am not sure it is strong enough to be considered an "adequate" legal description since it is so subjective to know what line would constitute being the "greatest benefit to both parties". To be objective, if the parties couldn't agree, then a straight line may have to be used. paraphrasing the definition of a legal description "for a description to be considered adequate it must be stakable on the ground.
As seems to happen quite often, I form my answer as I'm reading the OP, get all set to type it out, and then see that Brian has already given the exact answer I was about to type. So to reiterate...
> If the line has not been established per the contract, how can you establish it for them? You can't.
It's not up to you to decide 1) whether the line is straight or follows some manner of topography controlling it's location, and 2) if it is topography, what theat topography would be. That's a description that requires cooperative action by the two landowners to define the boundary between them.
Work with both to come up with a dividing line that meets the other criteria as to approximately equal areas and that the endpoints are in the approximate locations described. Wrap it up by facilitating a BLA with more definite descriptions.
The first part of course. The last paragraph is a habendum clause basically and as such can not control over specifics in the body of the description. In addition, that last paragraph, if you wanted to try and use it, fails the test of an adequate description and is void for vagueness. If you argued for the last paragraph you might void the deed altogether. In addition the last paragraph fails to properly identify a present interest and fails on that contract ground as well.
But the first part that controls is sufficiently ambiguous that I would be looking for physical evidence of where exactly the parties may have established the division.
This is why we get paid the big bucks. If it was simple, anyone could do it.
