Gap or no Gap - Case Law

User avatar
Elias French
Posts: 43
Joined: Fri Aug 07, 2009 7:22 am

Gap or no Gap - Case Law

Postby Elias French » Thu Oct 18, 2018 12:46 pm

Does anybody know of any California decisions that address the oft-discussed "gap" that is the source of so many surveyor disagreements?

For example: Sequential M&B conveyances, based on record dimensions, tied to opposite sides of the parent parcel, no helpful controlling calls. The conveyances appear based on the record, to convey the entire parent parcel. During a field survey the parent parcel is found to be wider than record.

Camp "A": A gap must result between the two parcels, as the surveyor cannot go outside the writings, and the deeds have no ambiguities.

Camp "B": Only one line exists, there is no gap. Either the junior grantee takes the excess, or extrinsic evidence (surveys, possession, etc.) may be used to locate the common boundary. No matter what, there is no gap, as the intent of the grantor, as evidenced by the record, was to convey the entire parent parcel to the two grantees.

Perhaps I am missing something, but it seems that this subject has been discussed at length, and has strong opinions on both sides, but a court case that directly addresses the situation to everyone's satisfaction hasn't been found.

User avatar
Warren Smith
Posts: 701
Joined: Thu Apr 13, 2006 6:41 am
Location: Sonora

Re: Gap or no Gap - Case Law

Postby Warren Smith » Thu Oct 18, 2018 1:38 pm

My first thought is Bryant v. Blevins. Although the crux of the case was purported dependence on a fence line, the summary of facts speaks to the proper location of what the Supreme Court called the true boundary between the east and west half of a parcel. It cites a number of similar cases where a division line is capable of being located, but improvements are relied upon instead. Gaps and overlaps aren't mentioned in these - it comes down to junior/senior rights.
Warren D. Smith, LS 4842
County Surveyor
Tuolumne County

User avatar
land butcher
Posts: 1609
Joined: Fri Jul 26, 2002 7:26 pm
Location: calif

Re: Gap or no Gap - Case Law

Postby land butcher » Sun Oct 21, 2018 1:53 pm

If the parent parcel was 100 ft in the record deed that created 2 - 50ft lots and the parent parcel measures 110ft you have a gap.
East half - west half no gap
East 50ft for one parcel, parent parcel less the east 50 ft no gap.

User avatar
Peter Ehlert
Posts: 477
Joined: Sun Oct 26, 2003 2:40 pm
Location: N31°43', W116°39'
Contact:

Re: Gap or no Gap - Case Law

Postby Peter Ehlert » Sun Oct 21, 2018 2:36 pm

land butcher wrote:If the parent parcel was 100 ft in the record deed that created 2 - 50ft lots and the parent parcel measures 110ft you have a gap.
East half - west half no gap
East 50ft for one parcel, parent parcel less the east 50 ft no gap.


no gap. 3 parcels. 2 50's and a remainder
Peter Ehlert

User avatar
Elias French
Posts: 43
Joined: Fri Aug 07, 2009 7:22 am

Re: Gap or no Gap - Case Law

Postby Elias French » Mon Oct 22, 2018 1:22 pm

Would the answer be the same if the excess were only 0.1', or 1.0' instead of 10 feet? Doesn't the fact that the two deeds out, each 50' wide of record, equal the 100' parent parcel indicate the intent of the grantor to convey the entire parcel? My understanding was that in this case, the junior parcel may absorb the excess, much as the junior parcel would take the shortage in the event the parent parcel measured 99' on the ground?

User avatar
David Kendall
Posts: 342
Joined: Thu Apr 10, 2014 1:45 pm
Location: Sonoma

Re: Gap or no Gap - Case Law

Postby David Kendall » Mon Oct 22, 2018 8:11 pm

Elias French wrote:the junior parcel may absorb the excess, much as the junior parcel would take the shortage in the event the parent parcel measured 99' on the ground?


Assuming unimproved land, this is how I would resolve the matter you describe. If it takes a lot line adjustment, boundary line agreement, legal thumb wrestling with the County Surveyor or simple handshake between the parties; I attempt to settle the matter instead of leaving an unknown sliver on record.

I’m working on a project now where the previous surveyor created a gap identical to the situation you laid out. I can’t understand it! At the end of the day no one cares anyway so it may not get resolved on this go round. It is a head shaker, not one that I would care to pay $10k to fix if I owned the lot so I will advise against a resurvey.

I’ll try to never create that situation myself. Sorry I don’t have a case reference. This is my philosophical sense of the right thing to do as a professional.

City Surveyor made me leave two gaps once in order to get a parcel map signed. I don’t believe it filed due to owner’s personal reasons but it made me feel ill to leave the boundary that way. I can imagine situations where the gap might not be able to be worked out but I sure try to do it when I can

User avatar
Ian Wilson
Posts: 877
Joined: Sat Aug 03, 2002 6:58 am
Location: Bay Area

Re: Gap or no Gap - Case Law

Postby Ian Wilson » Tue Oct 23, 2018 6:54 am

Case law will be hard to come by for the simple reason that such “gaps and overlaps” do not usually amount to much in terms of land or value. While there are certainly instances where the case may end up in court, there are not cases I can recall that ended up in an appeal and, consequently, a written decision of the case.

The closest I can recall is one in which there was a question as to the ownership of the abandoned street, MURRAY v. TITLE INS. & TRUST CO. 250 Cal.App.2d 248 (1967) 58 Cal. Rptr. 273 (1967)

Justice Flemming wrote “On the other hand, the law of real property abhors the proliferation of gores and strips under separate ownership and strongly favors a policy which passes the title of adjoining strips to the purchaser of the abutting property at the time of his acquisition.”

I suspect that this would be the line taken by most courts. The decision would likely hang on which of the adjoiners would be the beneficiary.

If anyone knows of an appellate case on gaps and overlaps, please share it with me.
Ian Wilson, P.L.S. (CA / NV / CO)
San Mateo County Surveyor

User avatar
steffan
Posts: 189
Joined: Wed Oct 10, 2007 2:44 pm
Location: N CA

Re: Gap or no Gap - Case Law

Postby steffan » Tue Oct 23, 2018 8:43 am

Absent any defining statute or case law to the matter, one might consider secondary legal sources such as the Treatise listed in American Jurisprudence which covers the subject matter. In Section 12.19 of the 7th edition of "Clark on Surveying" it states:
"Likewise, where there are separate conveyances at different periods from unplatted lands, by metes and bounds, the rule (of apportionment) does not apply. The first conveyance would be entitled to the full amount purchased; the second next in order; the last would be entitled to all of the surplusage, if any, and must stand the deficiency, if any there be"40

40 Adams v Wilson, 137 Ala. 632, 34 So. 831 (1903)

User avatar
steffan
Posts: 189
Joined: Wed Oct 10, 2007 2:44 pm
Location: N CA

Re: Gap or no Gap - Case Law

Postby steffan » Tue Oct 23, 2018 11:08 am

For an interesting twist on the previous post regarding the surplusage going to the last parcel, see the attached .pdf of a current real world situation I am involved in. The lands shown were all under one common ownership. Lot 2 was sold first. Then Lot 3. The gap between Lots 2 and 3 were deemed to be owned by the last lot, Lot 4.
Strange but true.
You do not have the required permissions to view the files attached to this post.

User avatar
Warren Smith
Posts: 701
Joined: Thu Apr 13, 2006 6:41 am
Location: Sonora

Re: Gap or no Gap - Case Law

Postby Warren Smith » Tue Oct 23, 2018 11:19 am

I take it that the owner of Lot 4 was the Grantor of Lot 3 (as described). Given that Grant Deeds are essentially a contract - although unilateral except in the case of grants to a public agency - it must be a determination that the grantor intended to retain ownership of such "gaps". That is, it must be compelling that the scrivener purposely did not write the description such that it is qualified to run to and along an adjacent property line.

Shoddy work when that happens.
Warren D. Smith, LS 4842
County Surveyor
Tuolumne County

User avatar
marchenko
Posts: 46
Joined: Tue Nov 12, 2002 12:24 pm

Re: Gap or no Gap - Case Law

Postby marchenko » Tue Oct 23, 2018 12:30 pm

Gap because under real property law there are no gaps. If it was never patented out, it is held by the USA. Otherwise your gap is as stated above a remainder. Obtain a quitclaim, record a correcting deed, lot line adjust etc.

DaveRyan
Posts: 6
Joined: Wed Sep 06, 2017 11:46 am

Re: Gap or no Gap - Case Law

Postby DaveRyan » Tue Oct 23, 2018 1:43 pm

I agree with the response that there are 3 parcels. There is no gap-someone holds title to it. I disagree with the premise that the surveyor somehow created the situation. It was there when he arrived. However, it is important how he/she chooses to deal with it, the essence of your question.

I was once reviewing a subdivision map where the land being subdivided comprised multiple descriptions and contained a substantial strip between two of them, maybe 20 to 40 feet wide and several hundred feet long, don’t recall precise numbers. The surveyor didn’t seem to be addressing it in his initial boundary solution, but I discovered it by reading the descriptions so I asked how he intended to address it. He replied he was working with a title co. on a quiet title action as he and they believed it to be an issue that warranted cleaning up. The title co. was apparently not going to be willing to insure anything, and the surveyor was not willing to be judge and jury on this one. I was relieved to hear this as I wasn’t sure how he would have resolved the boundary otherwise.

The bottom line is, the size and/or value of the area involved IS of consequence and affects a surveyor’s decision to discern intent and include “the gap” with one side or the other, or chooses not to take the risk. I acknowledge most situations are not as black and white as the example I gave, and it’s considerably more difficult to know what to do in the grey areas.

Dave Ryan
Arcata Ca.

User avatar
David Kendall
Posts: 342
Joined: Thu Apr 10, 2014 1:45 pm
Location: Sonoma

Re: Gap or no Gap - Case Law

Postby David Kendall » Fri Oct 26, 2018 7:48 am

I appreciate this question and all who have participated in the discussion and especially those providing citations. What I'm hearing is that most of us (as well as the judges cited) are in camp B where there are no gaps.

The distinction which I was missing is that while leaving a gap or overlap on record is akin to leaving a big rake out there with the tines up and partially covered in leaves, it is not the surveyor's duty to dispose of the remainder (though I can see how a situation could arise where a surveyor could have little choice but to leave the mess for the next guy to clean up).

I have a case just like this which I am currently struggling to decide how to address. It seems to me to be an obvious case of junior and senior rights. It has already been surveyed to death and I can't see any sense in doing it again. I now believe the correct course of action is to draft quitclaim deeds for the neighbor to sign which would release their claim to the gap. My part as a surveyor should be writing legal descriptions and exhibit plats rather than orchestrating the agreement

Bottom line is I suppose the best we can do in this situation is identify and describe the discrepancy and suggest an attorney to develop an agreement with the neighbor or perhaps some neighbors might be able to work it out for themselves.

Do title companies perform quiet title actions? I thought they just sold insurance and research services....

User avatar
Elias French
Posts: 43
Joined: Fri Aug 07, 2009 7:22 am

Re: Gap or no Gap - Case Law

Postby Elias French » Fri Oct 26, 2018 9:02 am

I also appreciate everyone's responses and input here. I think the answer to this question depends on the facts specific to a given survey, so it is difficult to discuss this issue in a generalized way. Factors such as magnitude and local practice may strongly affect the resolution. Nonetheless...

I count 3 in Camp "A" and 4 in Camp "B". I put myself in Camp "B", based on the citations given above, and my opinion that if there is no gap based on the record dimensions, that seems to reveal the intent of the grantor to convey their entire holding to the two grantees. The fact that the junior deed does not call to the line of the senior deed seems like it should not control over the principle stated in Clark cited above in this thread:

In Section 12.19 of the 7th edition of "Clark on Surveying" it states:
"Likewise, where there are separate conveyances at different periods from unplatted lands, by metes and bounds, the rule (of apportionment) does not apply. The first conveyance would be entitled to the full amount purchased; the second next in order; the last would be entitled to all of the surplusage, if any, and must stand the deficiency, if any there be".

My goal is to find an appellate case specifically addressing this to use as guidance in these situations. It seems that there is significant disagreement among surveyors on this issue, as this thread and my own unofficial polls seem to indicate a 50-50 split more or less. This to me suggests either a lack of guidance in the texts or case law, or a lack of consistency of application of the same by the surveyors. In essence, a conflict between the "stay within the four corners of the deed" camp, and the "the intent was to convey the remainder/resolution of a latent ambiguity" camp.

If there was a case that had directly addressed this very issue, maybe these differing views could be resolved...

User avatar
Peter Ehlert
Posts: 477
Joined: Sun Oct 26, 2003 2:40 pm
Location: N31°43', W116°39'
Contact:

Re: Gap or no Gap - Case Law

Postby Peter Ehlert » Fri Oct 26, 2018 9:28 am

Remainder vs "presumed intent" is shaky ground.
Let us not express a personal opinion without fully informing the client, and adjoining owner.
Our job is to clarify the true situation.
Peter Ehlert

User avatar
Proud7191
Posts: 109
Joined: Tue Apr 03, 2012 9:42 am

Re: Gap or no Gap - Case Law

Postby Proud7191 » Fri Oct 26, 2018 9:50 am

I agree Peter. If I was the property owner of one of the two properties I would occupy the documented hiatus area as soon as possible from what I have learned in the business. I just came across a survey that shows a 5' gap that has been there for 50 years according to the surveys documenting it. What a waste of land, two fences 5' apart for 50 years with the land laying dormant. I don't understand why the assessor hasn't assigned a tax lot to it and foreclosed(?).
Would it be professional to suggest to a client that they should use the dirt,(preferably for a low cost item such as landscaping) to gain unwritten rights over it? Jp

User avatar
marchenko
Posts: 46
Joined: Tue Nov 12, 2002 12:24 pm

Re: Gap or no Gap - Case Law

Postby marchenko » Fri Oct 26, 2018 11:32 am

The "last" could be a deed recorded yesterday, describing the entire original tract, excepting the two previous conveyances, aka the "Remainder". And it would be entitled to the remaining lands.

User avatar
E_Page
Posts: 2043
Joined: Thu Jun 23, 2005 6:49 am
Location: El Dorado County

Re: Gap or no Gap - Case Law

Postby E_Page » Fri Nov 02, 2018 1:30 pm

From the O.P.: Sequential M&B conveyances, based on record dimensions, tied to opposite sides of the parent parcel, no helpful controlling calls. The conveyances appear based on the record, to convey the entire parent parcel. During a field survey the parent parcel is found to be wider than record.

Many surveyors get weak-kneed when anyone mentions "intent" and come close to losing control of their bowels if someone suggests that the surveyor attempt to determine intent.

There's no reason for such angst about intent. It's simply a matter of coming to conclusions based on available information and common sense. The job is investigation and analysis, not guesswork and divination.

It is also beyond our authority to essentially create a newly "discovered" parcel due to finding an alleged excess based on measurements made after the conveyances were made.

A very important basic legal boundary principle is that anytime a measurement of a record course is made and there is a discrepancy between the record measurement and the subsequent one, the record dimension is considered to be correct and the subsequent measurement the one containing error.

In this case, it is very significant that the sum of the conveyed parts is equal to the total of the record dimension of the parent parcel. That is a very strong piece of evidence that no gap was intended. If there is no evidence that the grantor had any reason to have been informed that the parent parcel was anything other than what the original surveyor said it was prior to making the conveyances of the parts, then you are left with reasonably solid evidence of an intent to convey all of the parent parcel between the two conveyances and no evidence of an intent to retain any portion of the parent parcel or to have fraudulently convey part of it to the separate grantees.

If the discovery of a supposed excess was made any time after the 2nd conveyance, that discovery is utterly meaningless as to the number of parcels and cannot be used as the basis of creating a new parcel where no such title previously existed.

If the sum of the parts added up to something other than the record whole of the parent parcel, then you may have a reason to suspect an intent to retain a portion or to have fraudulently convey part that had been previously conveyed.

Example 1: Original surveyor measures and reports Lot A to be 200' wide. Original purchaser (and any subsequent purchaser of Lot A) never has a reason to have another survey performed and so does not. Owner of Lot A conveys the W 70' (Lot A-1) and sometime later, still without being informed that Lot A is anything other than 200', sells the East 130' (Lot A-2).

Since he owned a 200' wide Lot, after selling Lot A-1, he retains, per the record he is aware of, a 130' remainder, no more, no less (by record). When he sells Lot A-2, he identified it as the E 130' of Lot A, which is exactly what he had retained after selling 70', no more and no less (by record).

There is no room to divine an intent to have created a third parcel from land which does not exist according to the measurements of the land which existed at the time of the conveyance of Lot A-2. If a surveyor later comes, makes a measurement showing a value of something greater than 200' between the original corners of Lot A and identifies a portion of land which is neither part of Lot A-1 nor of Lot A-2, he is in effect, divining an intent of the grantor to have retained some previously unidentified portion. That is, the surveyor is assuming this intent without any acceptable evidence to support that conclusion.

Example 2: Original surveyor measures and reports Lot A to be 200' wide. Original purchaser (and any subsequent purchaser of Lot A) never has a reason to have another survey performed and so does not. Owner of Lot A conveys the W 70' (Lot A-1) and sometime later, still without being informed that Lot A is anything other than 200', sells the East 120' (Lot A-2).

In this case, based on record dimensions, there is 10' leftover between the two conveyances. Without any other info, there appears to be an intent by the grantor to have retained a 10' strip.

Is it possible that the grantor made a typo in one of the conveyances and intended to convey all of Lot A? Anything is possible, but we have to stick to facts. And it is the facts known at the time of the conveyances that count. Those are the conditions by which the conveyances were made.

Again, if the surveyor concludes that there are anything other than three resultant portions comprising what was Lot A, he is divining an intent for which there is no evidence.


Turn the situation around such that the recent measurement between the original corner locations of Lot A indicates something less than 200' (an "overlap"). Would you show an area where the owners of Lot A-1 and Lot A-2 both have claim to under separate title?

Here's where some pull out the Surveyors' Rule Book, turn to the section of gaps and overlaps and point out the solidly accepted "rule" that in the case of an overlap, the 1st part conveyed out gets their full measure according to deed, and the 2nd conveyance gets the leftover, regardless of the dimension stated in their deed.

This is what most, if not all of us were taught. It's simple, easy to understand, easy to remember, and more importantly, easy to implement in practice, so we see it as sacrosanct, never question the "rule" and get really uncomfortable when and if anyone has the temerity to do so.

The problem with this, and virtually all "rules" in surveying is that it is incomplete and is only applicable in the (in reality) very rare circumstance where there are no other facts available to bring the true answer to light.

If we follow the "rule" of overlaps without making any further inquiry of the facts, we are in essence saying that the last owner of Lot A intended to defraud the grantees, or at least the Grantee of Lot A-2 by selling some portion of land he had already sold to the Grantee of A-1.

"No I'm not. No. I'm not!, Where do you come up with that Page?"

Well, if you would assume an intent that the last owner of Lot A intended to retain some excess portion to be found at some point several years after the conveyances by identifying a parcel that is neither within A-1 or A-2, then to be consistent in your logic, you would have to assume an intent to sell a portion twice in the event that you find less than the record amount of land.

The first surveyor to measure Lot A subsequent to the original surveyor has no idea whether more or less than 200.00' is going to be found by their measurements. The one thing they can be almost sure of is that they will not measure precisely 200.00' between the original corners.

For the surveyor who has never tried to understand the underlying title issues in a case like this, the primary result of making the measurements is to determine whether they are going to assume (rather than investigate) an unexpressed intent to have retained an unidentified and hidden parcel, or assume an intent to have defrauded the grantees for which he will adjudge the full loss to the owners of A-2 according to the set and arbitrary rule of overlaps.

When surveyors apply a rule like this to a specific situation, it should only be after a diligent investigation has failed to uncover evidence of the actual expressed intent and/or the actual physically established original location. When we apply the rule, we need to realize that we are stating "I couldn't find the facts." We are conceding a defeat. It may be a defeat to the vagaries of time, and one that no other diligent surveyor could overcome, but it is a defeat nonetheless. "I had to resort to cookbook guesswork."

If a surveyor applies this rule (or any similarly very general rule) before making a deeper investigation (as opposed to simply pulling the deeds and making measurements), he is saying either "I'm not fully aware of what my function is, so I'm going to identify a problem for someone else to fix at great cost to the landowners" , or "I have this handy rule to apply, which saves me additional effort I'd need to expend to determine the answers that only my profession is licensed to find. Besides, that part of surveying is boring so I don't want to do it. And, I don't give a darn about the cost and trouble to fix it because that's someone else's problem."

If that characterization ticks you off because you've always applied or been ready to apply the rule in such situations, don't get mad. Think it through. Apply logic to the situation and determine whether it makes sense or if it serves the public.

But then again, if you are one of those who apply the rule simply to avoid doing additional work, then go ahead and get mad. For these folks, logic and education isn't likely to help the surveyor or their clients. If the motivation is to avoid the work to find the correct answer according to available facts, this won't be the only corner cut.
Evan Page, PLS
A Certain Forum Essayist

User avatar
E_Page
Posts: 2043
Joined: Thu Jun 23, 2005 6:49 am
Location: El Dorado County

Re: Gap or no Gap - Case Law

Postby E_Page » Fri Nov 02, 2018 1:41 pm

Actual gaps do exist in some circumstances. Where they do, it is most often the case that they were created by a surveyor or other land "professional" who didn't understand land ownership and or didn't apply common sense to the facts available at the time the gap was created. Rarely are they actually created through the conveyances by the grantor to remain hidden until "discovered" by some surveyor years later.

And a word regarding gaps & overlaps in the PLSS: Surveyors, other land and legal professionals had the forethought to create a manual for the division and disposal of public domain lands, and to regularly update it. Particularly useful are those portions that speak to working with survey and title evidence during resurveys and subsequent divisions of land.

Without that manual, many surveyors would be making misguided application of the rules of gaps and overlaps in every section of the PLSS. There wouldn't be a quarter section anywhere in the US not plagued with "discovered" gaps and gores.

Why do you think the application of rules in the BLM manual are written as they are? A primary reason is so that surveyors don't confuse themselves for engineers by approaching boundary matters as simply measurement exercises.
Evan Page, PLS
A Certain Forum Essayist

User avatar
LS_8750
Posts: 737
Joined: Tue Jul 20, 2010 5:36 pm
Location: Sonoma
Contact:

Re: Gap or no Gap - Case Law

Postby LS_8750 » Wed Nov 28, 2018 10:14 am

As a practical matter, every time I have encountered a so called gap, I have noticed two things:
1. It was created by the surveyor, not the record documents, and
2. The so called gap is nothing more than a nuisance to the adjoiners, normally unmaintained and collecting garbage and causing a fire hazard.

And often times that so called gap is found along an ancient old property that has not gone through many hands over the course of time.

And of course these so called gaps, normally created by surveyors, are too expensive to resolve through quiet title action so they get left there as a testament to idiocy, a stain on the reputation of the profession. But I suppose it will make the GIS folks scratch their heads.


Real gaps do exist of course, and in my experience they typically involve ancient roads that were never conveyed through the course of time as properties were later subdivided. These roads are later used as ingress/egress to properties, title companies insure access, and then along comes surveyor who says looky here - we have a gap. Then quiet title actions become necessary, and often enough the title companies foot the bill in the end to avoid bad faith suits.
Clark E. Stoner, PE, PLS
CFS Engineering
Sonoma County
Santa Cruz County
tel. 707.996.8449 (Sonoma) or 831.477.9215 (Santa Cruz)
stoner@cfsengineering.com

User avatar
Olin Edmundson
Posts: 187
Joined: Sun Nov 09, 2014 8:37 am

Re: Gap or no Gap - Case Law

Postby Olin Edmundson » Wed Nov 28, 2018 6:18 pm

Biggest problem with gaps is that there is no one to rake the leaves in this 2" strip. Finland outlawed them many years ago, we may want to take note.

Evan- thanks for contributions! Not disagreeing with any of your points but wondering if you have any reference to case law the poster requested.

My guess is that a major difference between the two camps is that private self-employed surveyors tend to be more conservative in cases where intent may not be entirely clear because their house, life savings and kids college fund is on the line. Not worth it to unnecessarily expose yourself if case law is split and you're just guessing which way things may go. This may not be exactly the case for government workers and other employees. Just a fact that they are more insulated from liability.

User avatar
Elias French
Posts: 43
Joined: Fri Aug 07, 2009 7:22 am

Re: Gap or no Gap - Case Law

Postby Elias French » Tue Jul 16, 2019 10:34 pm

You may have a point there Olin Edmundson. Your concern is the reason for this post, to try to explore the current practice in this situation, and determine what is the most supportable approach to these cases, so that the ‘conservative’ approach and the ‘right’ approach can be made the same, and be more well understood by us all.

For any who read this who have not contributed, please do respond, even briefly, so that we may better understand where we all are on this one.

User avatar
Steve Martin
Posts: 507
Joined: Mon Apr 04, 2005 12:24 pm
Location: Hayward

Re: Gap or no Gap - Case Law

Postby Steve Martin » Wed Jul 17, 2019 1:16 pm

Interestingly, I cited Clark for justification for not creating a gap in the middle of an airport where those who had gone before did not also create a gap.
One deed was for the west 30 acres of a 1/4 1/4 section and another was for the East 10 acres of the same 1/4 1/4. Retracement returned 41 acres.

The citation from the 5th edition of Clark was Chapter 14.18
A reference in the deed "According to the government survey", or similar, give the intent and Federal rules apply. Apportionment applies.

There was more to the survey, such as the Right of Way plat where the property was acquired also showing apportioned acreage.

This case was one where the facts supported proportioning..

User avatar
TIB
Posts: 152
Joined: Mon Sep 27, 2010 9:56 pm

Re: Gap or no Gap - Case Law

Postby TIB » Thu Jul 18, 2019 1:24 am

the reference to Clark cited above that pro rate does not apply clearly states for "unplatted land". These are platted lands. principle does not apply

User avatar
Elias French
Posts: 43
Joined: Fri Aug 07, 2009 7:22 am

Re: Gap or no Gap - Case Law

Postby Elias French » Thu Jul 18, 2019 6:01 pm

Thanks for contributing Steve Martin, and interesting survey.

TIB if I understand correctly Mr. Martin did apply proration aka proportioning aka apportionment. The section of Clark cited appears to state that proportionate measure does apply, due to the reference to the call to the government survey. Not a PLSS expert, just mentioning in case of confusion.


Return to “General Discussion”

Who is online

Users browsing this forum: No registered users and 7 guests