Gap in title question

A.Westerlund
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Gap in title question

Postby A.Westerlund » Tue May 08, 2018 11:59 am

Good afternoon,

I have been reading the forum for a while now, but have never posted - I really like to read about the surveying issues. I have a issue that I would like to ask the community about in a theoretical fashion. I personally think it is pretty simple, but I can't seem to get my point across. Or maybe I am wrong. Any input is appreciated. Technical or legal references all the better.

Chain of title:

1870 - Owner A acquires NE 1/4 SEC X via patent.

1900 – Owner A conveys S 1/2 NE 1/4 SEC X to Owner B via Grant Deed.

1910 – Owner B conveys to Owner 1 via Grant Deed the following:
“THE EAST 15 ACRES OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SECTION X”

1920 – Owner B conveys to Owner 2 via Grant Deed the following:
“THE WEST 23 ACRES OF THE EAST 39 ACRES OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SECTION X”

1930 – Owner B conveys to Owner C via Grant Deed the following:
“THE SOUTH HALF OF THE NORTHEAST QUARTER OF SECTION X, EXCEPTING THE EAST 15 ACRES AND THE WEST 23 ACRES OF THE EAST 39 ACRES THEREOF”

1950 – Owner C conveys to Owner D via Grant Deed the [same desc] following:
“THE SOUTH HALF OF THE NORTHEAST QUARTER OF SECTION X, EXCEPTING THE EAST 15 ACRES AND THE WEST 23 ACRES OF THE EAST 39 ACRES THEREOF”

There is a 1 acre gap in title between the east 15 acres and the west 23 acres of the east 39 acres. The question at hand is:
Who has title to the 1 acre gap?

Thank you,
Antonio
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Steve Martin
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Re: Gap in title question

Postby Steve Martin » Tue May 08, 2018 1:54 pm

Antonio,

A couple of questions:

What does the original township plat show for acreage in the South 1/2 of the Northeast Quarter?

Do the deeds have wording stating "according to the official plat thereof" or similar?

Reference Clark 5th edition Chapter 14.18 (14.17 8th Ed.)

A.Westerlund
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Re: Gap in title question

Postby A.Westerlund » Tue May 08, 2018 2:42 pm

Steve-

It is a normal, interior section, showing 640 acres on the original map. I will provide the precise language in the deeds below.

Owner 1 was conveyed "The East 15 acres, more or less, of the South one-half of the Northeast quarter of Section X, Township Y North, Range Z East, M.D.B.M."

Owner 2 was conveyed "The West twenty-three acres more or less of the east thirty-nine acres, of the south half of the North east quarter of Section X, Township Y North, Range Z East, M.D.B.M."

Both description are followed with:

TOGETHER with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, TO HAVE AND TO HOLD, all and singular the said premises, together with the appurtenances, unto the said party of the second part, her heirs and assigns forever.
Could any of this language possibly point the "intent" as Clark discusses?

[I do have some more interesting points and follow up questions to discuss, but I was hoping to get a general agreement that the 1 acre gap passes from B to C to D]

Thanks for your input.

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Steve Martin
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Re: Gap in title question

Postby Steve Martin » Tue May 08, 2018 2:51 pm

Thanks Antonio,

I would say you have a latent ambiguity and should look at extrinsic evidence to answer the intent question.

Who has historically been using the 1 acre strip?

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Ian Wilson
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Re: Gap in title question

Postby Ian Wilson » Tue May 08, 2018 2:52 pm

If this is the "Perfect Section", the 1 acre parcel "gap" would be 33' wide. Could this have been intended as a road? If so, the "gap" could have been intentional at one point.

Just musing...

Ian

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David Kendall
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Re: Gap in title question

Postby David Kendall » Tue May 08, 2018 9:13 pm

In a perfect section in a perfect world with no land development and no error in legal description the West 1 acre of the East 16 acres of the East 39 acres of the South half of the northeast quarter has not been conveyed by B to anyone else so owner B still holds title until 1930. Then he conveyed it to C who conveyed it to D

I would love to see that perfect section someday

Why would someone put "more or less" on an area legal description? I suppose I’ll take more....
Last edited by David Kendall on Wed May 09, 2018 9:41 am, edited 1 time in total.

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Proud7191
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Re: Gap in title question

Postby Proud7191 » Wed May 09, 2018 7:27 am

My first thought was as Ian stated. A 33' road by omission(?) To be totally legit (to maintain ownership/road/easement) there should be a specific mention of the purpose of the omitted area within the deeds or maybe prior deeds(?). Or as others have stated, what does the field visit and extrinsic evidence reveal? This is why we make the big bucks :). Jp

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Peter Ehlert
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Re: Gap in title question

Postby Peter Ehlert » Wed May 09, 2018 8:03 am

There is no gap, never was. It is a remainder... prove me wrong! ;-)
I feel that when we Surveyors spot such an "omission" that we First consider it a Remainder, intended to be retained.
finding Proof that it is Not a remainder is tough... especially when a drafter at the assessor's office does not recognize it as such.
Yes, there "should be" some sort of mention about the intent... but it is usually crystal clear to the writer, so that seldom happens.
Peter Ehlert

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Ian Wilson
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Re: Gap in title question

Postby Ian Wilson » Wed May 09, 2018 8:18 am

Thank you, Peter. Well put.

There does not need to be a stated reservation.

When non-surveyors write description using PLSS aliquot parts, they often assume that the section is 5280' x 5280' and perfectly square. This often lead to misunderstandings as to the "true" description.

Don't overthink this sort of description. Take it at face value until you have evidence to the contrary.

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steffan
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Re: Gap in title question

Postby steffan » Wed May 09, 2018 9:14 am

Instead of gap or remainder perhaps retained strip? I only bring that up being as the SMA Section 66424.6 defines remainder as a stand alone portion.

I am curious what the assessor shows as to who is paying taxes on the "strip". Along that line of thinking is who is actually occupying that portion of the land and to what extent is the usage defined?

Although a R/S does not perfect title, perhaps one might consider it a vehicle for identifying boundary establishment by principles of law other than that of deed location. Some might argue the R/S should only show the deed location and any (what has been called "unwritten rights") boundary establishment outside of the granted title should only be shown on said R/S as being areas of clouded title. Others might argue that a surveyor well versed in case and statute law might avoid declarations of clouded title and instead show the boundary location established by principles of law other than pure deed layout as the one and only boundary with the deed layout location depicted as a dashed line referred to as a superceded boundary. Wouldn't this latter method be in keeping with 8726(c) of the LS act in the surveyor's empowerment to "locate property line"? Adjudication is not what creates the line, it is the actions of the owners and the doctrines of law that do. Could it not be argued that a surveyor should recognize the true location as being the one and only location regardless of how it was established?

Just food for thought.

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David Kendall
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Re: Gap in title question

Postby David Kendall » Wed May 09, 2018 9:40 am

steffan wrote:Others might argue that a surveyor well versed in case and statute law might avoid declarations of clouded title and instead show the boundary location established by principles of law other than pure deed layout as the one and only boundary with the deed layout location depicted as a dashed line referred to as a superceded boundary. Wouldn't this latter method be in keeping with 8726(c) of the LS act in the surveyor's empowerment to "locate property line"? Adjudication is not what creates the line, it is the actions of the owners and the doctrines of law that do. Could it not be argued that a surveyor should recognize the true location as being the one and only location regardless of how it was established?


I prefer this style of mapping. I feel it is a comprehensive inventory of the condition of the boundary on the ground and that is what I believe we are called to document. Personally I prefer the term "record location" with appropriate reference as opposed to supecseded boundary but I believe we are saying the same thing. Some refer to this as an "alternate location" as defined in LS act and interpret that any and all are required by law to be shown

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Re: Gap in title question

Postby A.Westerlund » Wed May 09, 2018 11:47 am

Thanks for all the input.

First, this is for a development project so: 1. RoS would serve no use at this stage in the game and 2. The surveyor signing on behalf of the agency has to be in complete agreement with the resolution.

NOTE: Acquisition by "Owner 1" was "Owner 2" not 10 years apart. It was on the same day, I minute apart in the record. The west 23 acres came first. [I do not have any evidence of the need for or intent of a road between these to parcels]

That being said, there are really 2 issues here:
1. Who owns the gap/is there a gap? ----My position would be that there is no gap based on occupation and further facts I have not disclosed here. But more importantly, it doesn't matter, because even if there is a gap - the West 23 acres was split into "west 1/2 and east 1/2" - the entity with title to the 3 parcels west of the "East 15 acres" today is "Owner C" (it was in fact conveyed to "Owner D", but back to C). The current entity has title the "gap".
2. Where should the west line of the "East 15 acres be established".
In a perfect breakdown the east 15 acres is 495 feet wide. The APN map shows 480'. Areas on the APN map is consistent with 480'. Within 2' either way of a line placed at 480' there is a fence. This is not a new fence. This fence marks the lines of occupation of the neighbors since the beginning of available imagery. I'm being told there is absolutely no way I can possibly, ever, under any circumstances, no matter what, determine that the west line of the East 15 acres could be anywhere other that a location that provides precisely 15 acres. Because 14.54 is not 15.

What are real examples of extrinsic evidence?

Thanks

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Ian Wilson
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Re: Gap in title question

Postby Ian Wilson » Wed May 09, 2018 11:55 am

Antonio:

Extrinsic evidence is anything outside "the four corners of the document". Location of lines of possession. Parol evidence. Other deeds, letters, tax bills, etc.

There's clearly a lot more going on here in this case. If this is a real one, I would recommend checking in with someone with experience in the area. The County Surveyors in the counties surrounding you are more than capable of assisting.

Best to Claudia...

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Re: Gap in title question

Postby A.Westerlund » Wed May 09, 2018 12:00 pm

steffan wrote:Although a R/S does not perfect title, perhaps one might consider it a vehicle for identifying boundary establishment by principles of law other than that of deed location. Some might argue the R/S should only show the deed location and any (what has been called "unwritten rights") boundary establishment outside of the granted title should only be shown on said R/S as being areas of clouded title. Others might argue that a surveyor well versed in case and statute law might avoid declarations of clouded title and instead show the boundary location established by principles of law other than pure deed layout as the one and only boundary with the deed layout location depicted as a dashed line referred to as a superceded boundary. Wouldn't this latter method be in keeping with 8726(c) of the LS act in the surveyor's empowerment to "locate property line"? Adjudication is not what creates the line, it is the actions of the owners and the doctrines of law that do. Could it not be argued that a surveyor should recognize the true location as being the one and only location regardless of how it was established?


I appreciate this insight and I really like the concept. I think this sort of map does the best job of telling the whole story, especially with the addition of written establishment notes.

This type of RoS could definitely serve as a medium for parties to reference in an agreement.

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E_Page
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Re: Gap in title question

Postby E_Page » Thu May 10, 2018 10:53 am

"Because 14.54 is not 15."

Ask that person if you are required to correctly re-establish the section if the area doesn't come out to 640.00 acres by your measurements?

Whoever told you that has demonstrated a lack of understanding of significant figures, and unless the original conveyance of that 15 acres read "15.00 acres", 14.54 acres is, unarguably 15 acres.

Before getting to your May 09, 11:47 post, I was going to say that unless there is extrinsic evidence indicating otherwise, there is a 1 acre gap.

Extrinsic evidence in this case could be physical, such as established lines of occupation, or record, being a survey interim between the original GLO township plat at the first conveyances of the 15 and 23 acres (filed or unfiled) which would have informed the original parties that the dimensions and area of the section were less than reported by the GLO.

With the additional info you provided, it seems the question of whether or not there is a gap is moot and the only pertinent question left is the location of the West line of the 15 acre parcel.

Anytime the controlling elements in a description are measurements or quantities (a calculation based on measurements), you have a situation in which the likelihood of encountering a latent ambiguity is near 100%. You need to consider the description in light of the circumstances and conditions surrounding the original conveyance. If the mentioned fence is the best evidence of the originally understood location of the West line of the East 15 acres, then it most likely is the closest thing to a monumented location your apt to find.

If the APM shows 480', then that's a very good indication that there is some manner of survey record that exists somewhere that was the source of that info. Assessment mappers generally don't put a dimension on an APM without taking it directly from some map or title document that expressly indicates that dimension. Otherwise, it would most likely show the areas without any line dimensions.

For a 1910 or 1920 conveyance, for anywhere other than perhaps Orange and southerly LA Counties, the existence or former existence of an unfiled boundary map is fairly high. If you are able to look at superseded versions of the APMs to determine when the 480' dimension first appeared in the assessments, you can get a better idea of when a survey may have been performed.

If you haven't already done so, dig around near the fence ends to check for remnants of redwood stakes or posts.

15' discrepancy in a near 500' distance is not all that rare for surveys done in the 1800s or early 1900s. If the land values were fairly low at that time, or the availability of a licensed surveyor difficult at the time, landowners very often made their own measurements and established the lines themselves. That makes the possibility of the 15' being explained by poor original measurement even greater.

If there is no evidence of a line ever having been established a few feet west of the fence, and you can find no documentary or parol evidence of the landowners having an understanding that the true line has ever been anywhere but at or near the fence location, the fence very well may be the best evidence of the true boundary, and is almost certainly better evidence of the true or original location than is a calculation based on recent measurements of where a line enclosing 15.00000000 acres would be.

If boundary surveying were just a measure and math problem, it would be so easy even post-81 CEs could (probably) do it. Jeff, demonstrating uncommonly good understanding of the purpose of boundary surveying for a CE is a rare exception to that, and a dual licensee, IIRC.

Boundary surveying is an investigation to find existing, previously established boundary locations. If the surveyor ignores available evidence (even if it's because they don't know how to use it or are uncomfortable with the type of evidence) and takes it upon themselves to indicate a boundary location solely based on math and measurement without any corroborating evidence that the boundary actually ever existed at that location, they are overstepping their authority by moving an existing boundary without the proper evidentiary or analytical reason to do so.

We use math and measurement as part of our analytical tool set, but primarily for the purpose of reporting the spatial relationships between the various evidence we've found and deemed credible relative to the originally established boundary location.

ALL boundary principles have been established and refined in common/case law. Case law is replete with recognition that measurements (and by extension, calculations based on measurements) are far less reliable than most other forms of evidence where existing boundaries are concerned, even when no other controlling elements are provided in the description.

All of that is not to say surveyors should blindly accept any fence, even if an old one, in the vicinity of where a boundary is expected to be found based on dimensions or areas. Enough questions have to be asked and answered regarding the fence, or more accurately, the fence location (by corollary, don't ignore a fence just because it appears new. It may have replaced a much older one at the same location) to provide a basis for a reasonable belief that it was placed for the purpose of marking the true boundary and that the basis for that belief was also reasonable. That measure of reasonableness is from the perspective of the average person at the time of original conveyance or original establishment of the boundary on the ground, and is probably quite different from "reasonable" in the mind of a modern surveyor or engineer thinking in terms of modern measurements and acceptable errors in modern measurements.

From the tone I'm reading in your last couple posts, it seems like your on the right track but coming up against a wall in the form of some mathmagician with a construction-based or LSIT view of surveying, but who unfortunately has some say in the matter.

Good luck.
Evan Page, PLS
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A.Westerlund
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Re: Gap in title question

Postby A.Westerlund » Thu May 10, 2018 2:41 pm

Evan, thank you for your "essay". I like to ask experienced people questions anytime I can, and I am often given the response "well, it depends". I knew that, I'm not offended by any answer, and I just want to hear others' thoughts. The time you take to say "it depends", and then dive into the multiple arguments within different points of a "singular" issue is awesome.

What if....

At a later point in time in the chain of title, "Owner 1" has the east 15 and "Owner 2" has the west 23.

"Owner 1" grants to "Owner 1A" "the south 495 feet of the west 200 feet of the east 15 acres". "Owner 1A" does not occupy anything west of where "Owner 1" occupied, and occupies 200 feet +/- east of there.

"Owner 2" grants to "Owner 2A" "one acre in the SE corner of the west 23" - a corrector deed is filed 1 year later reading "one square acre being 208.7/10 feet square". "Owner 2A" grants to "Owner 2B" the property with a new description reading, "beginning at a point on the centerline of a county road 479.94' from the E 1/4 cor; Th N 208.71'; Th W 208.71'; Th S 208.71'; Th E 208.71' to POB". 10 years later, "Owner 2" quitclaims to "Owner 2B" the description "Owner 2B" was conveyed from "Owner 2A".

..... 1 more tidbit to added, have to go pick up the kid from daycare.....

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E_Page
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Re: Gap in title question

Postby E_Page » Thu May 10, 2018 3:09 pm

Have to look at it another time when I have time to wrap my head around the "what ifs". With a set of circumstances like this, we can "what if" this topic for months, but the basic answer will always come down to, unless there is extrinsic evidence to indicate otherwise, there is a gap intentionally left there and the task becomes to discover why or to find proof that there was no intention to leave a gap.

By answering why, you verify the intent for the gap and solidify your conclusion of a gap.

If you find proof that there was no intention to create or retain a gap as a separate parcel, then you start on the path of facilitating a BLA or a QT action. For the QTA, that means referring your client to a good attorney who will work toward facilitating an agreement rather than pushing for litigation (assuming the landowners are amenable to that) so that ven though it's litigation, the QTA is approached amicably by the parties simply as a means of clearing the title issue. In a case like this, even if a BLA can be accomplished without any form of litigation, it is one where it is probably best to have an experienced land law attorney take the lead, with the surveyor stepping back to purely a consulting or supporting role after completing the boundary investigation.

(short essay this time)
Evan Page, PLS
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Proud7191
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Re: Gap in title question

Postby Proud7191 » Fri May 11, 2018 7:17 am

Evan, Is this statement from your general knowledge and experience " If the APM shows 480', then that's a very good indication that there is some manner of survey record that exists somewhere that was the source of that info. Assessment mappers generally don't put a dimension on an APM without taking it directly from some map or title document that expressly indicates that dimension." or is it written somewhere? I know in Oregon they have an excellent manual for County cartographers to use, http://www.ormap.net/index.cfm?opt=mappingspecs. It is amazing the amount of reliance that is placed on county tax mapping, like it or not. Kind of like GIS.
Thanks again for your essays they are very enlightening. Jp

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E_Page
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Re: Gap in title question

Postby E_Page » Mon May 14, 2018 9:40 am

General knowledge and experience. It wouldn't surprise me at all if many counties had actual internal policies or guidelines about dimensioning APMs though.
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