California Surveyors Forums

Also and for the curious...

If anyone is aware of any case law or other evidence supporting the assertion that assigning the jr the remainder, be it 50.1 or 50.9, constitutes negligence, please let us know. It was my understanding, based on Clark and my training and research, that the jr receives the remainder, be it longer or shorter than record. If this conclusion has been found to constitute actual negligence, that would be information that could really speak to this discussion.

My understanding is that this discussion was in the realm of those topics upon which reasonable professionals might disagree...

Elias French wrote:If anyone is aware of any case law or other evidence supporting the assertion that assigning the jr the remainder, be it 50.1 or 50.9, constitutes negligence, please let us know.

I’m not reading it as objective negligence that is being asserted. It is simply a safer bet. My takeaway is that if the gap has enough value to provide for the surveyor to chase down the chain of title to creation and interview the heirs of the original subdivider and reach a strong conclusion as to intent and ownership to quiet title then have at it. Most of our projects are not so well funded. Personally I am reading the “property value vs standard of care” into this discussion.

Generally I try to do enough research to be sure that the next guy isn’t going to come along and find obvious evidence that I missed. Once I do that then i make a call and move on.

Safe bet is the equitable solution. There are plenty of extrensic evidence factors that could flip the script but the theory as I see it is to avoid suggesting claims on untitled land without due diligence

This is a great conversation, very enlightening. Thanks to all who participated

The way our monopoly to perform Land Surveying is justified as "protecting the public".
Staying with that thought, we are expected to raise red flags, and direct traffic.

That 0.9', or whatever, is a red flag. Terrible place to spend money until things are settled.
We are expected to warn Widow Brown (and her adjoiners) about the pitfalls, and to some degree suggest solutions.

Lawyer Up never works as expected.

how about this:
A Paper Gap exists.
Flag it out on all of the sketches and maps, it is a money pit.
Suggest a Boundary Line Agreement of some sort, assist in negotiating with the adjoiners, or just "Don't Build There".

BTW: there is money to be made by providing these valuable and time consuming extra services.
Get lawyers involved, after smoothing the sand, when needed.

Everything all neat and orderly between us folks is of the least importance. We are an anal group, hard to satisfy.
Widow Brown don't really care.

Would everyone’s answers remain the same re: whether a gap exists or not if the situation were as follows?

All three lots under separate ownership since creation, now all purchased by one person, lots to be merged and re-subdivided by map.

Is there still a gap? Can it be ‘mapped over’? Must quiet title action be pursued prior to mapping action? What if the title co. or County Surveyor insist there is a gap in title, and thus can’t allow the mapping to proceed until it is quieted by court action?

the remainder is still a fly in the ointment... if we can find it here, for sure someone else will again at some point.

I guess I’m stuck on this one at a couple of levels.

1. I really feel that it IS a problem if surveyors can’t get in better agreement on this one (gap or no gap). Our disagreement on this has a real impact on the public and our clients. It leads to lawsuits, inability to obtain title insurance if ALTAs by different surveyors are involved, and most importantly loss of respect of the public for our profession when they realize that Surveyors are so apt to disagree with such frequency. Too often conversations on this subject end in ‘he has his opinion, I have mine’, ‘who knows what the judge will decide anyway’, ‘isn’t this for the lawyers to deal with’, and so on, as a way of throwing our collective hands up at our lack of agreement.

2. It seems that some of the concern regarding allocating the excess, as opposed to creating a gap, stems from a desire to limit liability and be conservative. This is completely understandable and a concern we no doubt all share. However, it seems that if one would perform a lot line adjustment or boundary line agreement between the parcels in this case, as a means to ‘solve’ this problem, and reduce liability, that is proof there really is no gap. If there is a gap, as the OP noted, it is a 4th parcel, and is owned by the heirs of the original subdivider. Title to such a 4th parcel could only be cleared by locating said heirs, or quiet title action. To do otherwise is to admit the question is really one of location of the common line, not of ownership of a 4th parcel.

It seems the only way to limit liability is to fully disclose any perceived issues to all parties concerned, and to arrive at an opinion, based on the evidence and applicable principles, as to the location of the lines. If the opinion is supported by the evidence, and the survey map is made of record and fully documents the evidence and opinion, following Surveyors should be able to agree with said survey. If every survey similar to the one under discussion stood a 50% chance of being disputed by a following surveyor, based on the split in our ranks on this topic, that is a situation I would be concerned with.

Thanks as well to all contributors to this great discussion.

Well, I have a couple thoughts.

I, as a rule, like to explain these types of situations to my client and provide options. In this case they may be something like the following:

1. I propose we meet with the other neighbors and discuss the problem. If one or all of the affected parties want to fix the issue, I provide pricing to move forward with some type of solution that would quite title. Think back to Dave's comments about a Parcel Map, LLA or maybe just a Record of Survey with some notes and statements from the parties involved discussing their agreement with the solution. I tend to try and find ways to keep Planning Departments out of my surveying projects. Keep in mind that with such a small gap, I am not inclined to worry about the original grantor coming back from the dead to claim his 0.75' of land, exactly zero sleep lost.

2. In the event my client does not want to resolve the issue and quite title but wants me to complete the survey, I happily oblige. However, I inform the client that I will provide him the solution that reduces MY risk.... AKA my client gets the smallest solution. 50 feet it is. Am I the only one on this board that always gives the extra 0.01' to the neighbor on a prorate? I doubt it, and no I'm not showing thousandths! If my client is concerned about maximizing his property or really wants to fix the issue, see the above option number 1.

3. If my client does not want to pay to fix the issue and will not accept the smaller lot, I have completed my work. I let him know that if he wants to proceed with options 1 or 2, just let me know.

In closing, I am not for giving the additional property to one party. Junior, Senior, whatever. There could be some exceptions to this such as an old site wall that perfectly matches the distance or found monuments. Regarding monuments, I usually just hold them and move on. I would be inclined to prorate if the various parties agreed to the solution. In fact, I would be fine with any solution that was supported by all parties involved. Lastly, if all else fails, I am for whatever solution provides me (and my client) with the least amount of risk. In this case I believe the would be all 50 foot lots and a gap. If my client doesn't like the gap, see option number 1 or 3 above.

PS, no way in hell I am prorating across all lots without an agreement in place. Feel free to call me a chicken. That gives too many people more than they potentially should receive thus providing me with lost sleep. Nope.

Final thoughts:

I often wonder why these topics are debated in such a way that we surveyors are trying to find black and white within the grey area. There were some very specific answers purporting to be correct, and everyone made some good points. However, the correct solution, in my opinion, is really the one where the surveyor explains the problem and provides helpful insight to the client regarding a solution. The best resolution probably isn't for the surveyor to just pick his favorite option (short of a real black and white documented, correct solution) and take the liability to make it easier on the client. The client and neighbors need to be involved in the process and sometimes an attorney. I would rather not spend anytime in court with Dave on the other side discussing why my procedure lacks merit.

On 8/31/2005, the late Paul Cuomo wrote the following in Lidar Magazine, which is an excerpt from a larger 2-part series:

"The issue of an apparent overlap is one that most survey professionals including authors of standard survey textbooks deal with easily. Professional responsibility demands that the surveyor examine the chain of title, determine the order in which the deeds were executed and identify the junior/senior rights. He or she then allocates to the senior parcel(s) the full measure conveyed, with any excess or deficiency falling upon the junior parcel(s).
The issue of an apparent gap is one with which many (Including some textbook authors) are less comfortable. The issue should be analyzed in light of the rules that our courts have announced. Where there are conflicting title elements the law declares the order of importance:
1) Right of Possession
2) Senior Right
3) Written Intentions of the Parties to the Transaction
As an example, if Brown conveys the "W’ly 330.00 feet of Lot 7" to Green, later conveying the "E’ly 300.00 feet of Lot 7" to Grey, and the record shows that the east-west dimension of Lot 7 is 630.00 feet, it is obvious that Brown intended to convey all his interest in Lot 7 (see Figure 1). If Lot 7 subsequently measures 633.00 feet, the surveyor would locate the line between Green and Grey at 330.00 feet from the west line of Lot 7. Grey would own the E’ly 303.00 feet of Lot 7. In Adams v. Wilson, 137 Ala. 632 (1902) and Bloch v. Pfaff, 101 Mass. 535 (1869), the courts ruled "where the parts of lots are conveyed without reference to a plat or there is nothing in the deeds to indicate a purpose to divide the land in some definite proportion any excess in the quantity of the land must go to the last grantee and any deficiency must be borne by him." To hold that Brown still owned the three-foot "gap," you have to believe that he intended to keep the excess, which he did not know existed.

Author’s note: I would like to thank my mentor, Chuck Karayan, for reviewing this article."


I have a tremendous amount of respect for both Paul and Chuck and their understanding of survey law.

And as noted by others, "Clark on Surveying" also cites the Adams v Wilson case and also points in the same direction as Paul Cuomo. I add that "Clark on Surveying" is a treatise listed in American Jurisprudence that the courts can cite and have cited in determining legal precedent. For example the Oregon Court of Appeals relied on "Clark on Surveying" to decide the well known case of Dykes vs. Arnold.

In the OP's presented situation, the land in question was dimensioned and monumented by a recorded map. The owner sold off parcels in a sequential manner based on divisions of the mapped dimension. A more modern survey discovers that the original mapped dimension is a better part of a foot larger than the dimension shown on the original map (pre 1911 map). This is not unusual, even though surveyors could measure in length better than that back then, they often took shortcuts and their directions were often not consistent. I myself have found a number of block lines that were substantially off of being both parallel and perpendicular even though they had been shown as such on the original map.

As there appears to be legal precedent pointing to "R" as the answer, it may be worth considering. One might also ponder the situation where legal precedent is ignored, a showing of "gap" is placed in the public record resulting in the appearance of clouded titles for all 3 parcels. The ownership of 3 parcels thereby being harmed, would you consider the action of recording a R/S showing a gap to be subject to slander of title?

Clark: if the land lying between known boundaries be conveyed by distances, whether in equal or unequal portions, to different grantees in severalty, there being no intermediate monuments or other means of ascertaining the location, and the distances do not correspond to those in the deeds, such grantees will hold in proportion to the widths granted

TIB wrote:Clark: if the land lying between known boundaries be conveyed by distances, whether in equal or unequal portions, to different grantees in severalty, there being no intermediate monuments or other means of ascertaining the location, and the distances do not correspond to those in the deeds, such grantees will hold in proportion to the widths granted

TIB,
I'd like to know which section and edition of Clark you are quoting from. Section 12.08 of the 7th edition reads very similar, but with some significant differences. It reads as follows:

"If the lands lying between known monuments or boundaries are conveyed at the same time by distances, whether in equal or unequal portions, to different grantees in severalty, there being no intermediate monuments or other means of ascertaining the location, in the deeds, such grantees will respond with those named in the deeds, such grantees will hold in proportion to the widths granted them respectively in the deeds"

Note the inclusion of the words "at the same time" is in this version.

From Clark, 3rd Edition:

Sec 221 excerpt. "If the lands lying between known monuments or boundaries, be conveyed at the same time by distances, whether in equal or unequal portions, to different grantees in severalty, there being no intermediate monuments, or other means of ascertaining the location, and the distances do not correspond with those named in the deeds, such grantees will hold in proportion to the widths granted them respectively, in the deeds, whether there be an excess or deficiency in the distance." (emphasis mine)

Sec 237 excerpt. "In a case where "two deeds executed at the same time, by the same vendor, each calling for the line of the other as a division line, and calling for land within, but on opposite sides of the same survey, will be held to convey the entire tract, whether it be greater or less in quantity than estimated," and the excess must be divided between the two in proportion to the quantity conveyed to each, irrespective of values, in the absence of facts showing that equity would require the application of a different rule." (emphasis mine)

It appears from the 3rd edition that both sections above, which strongly resemble the sections referenced by TIB, are applicable to instances where the deeds are executed at the same time, thus rendering the conveyances simultaneous in the eyes of the courts, and subject to proration. In the subject case, it seems the section of Clark that is most applicable is the following:

Sec 232 excerpt. Separate surveys and successive conveyances. ..."Likewise where there are separate conveyances at different periods from unplatted lands, by metes and bounds, the rule does not apply. The first conveyances 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. Adams v Wilson, 137 Ala 632, 34 So 831."

The above section, indicating the excess or deficiency being borne by the junior grantee, agrees with the opinion of Paul Cuomo referenced by Steffan. And as Cuomo describes later in the same article, it appears the key factor in whether proration is to be applied or not is whether or not the deeds dividing the land were executed at the same time or not.

Per Cuomo article:

"Two exceptions to the above stated principle may exist. First, in Writing Legal Descriptions Gurdon Wattles states, If Parcels A and B were sold simultaneously, or within a few months of each other, it has been held in some cases that the gap should be prorated between them, also on the theory that the common owner never meant to keep any of the lot from his sale but intended to divest his interest on the proportionate basis of the two deeds. In Ogdens Revised California Real Property Law Arthur Bowman states, Any surplus or deficiency is apportioned when it appears that the conveyances were intended to embrace the entire tract, as in the case of division by partition or by conveyances all executed at the same time. He adds, It is reasonable to presume that a grantor who divides and conveys a lot to two persons, by descriptions that would join if the lot were of the size shown by the records, did not intend to retain title to a narrow strip of surplus land shown by subsequent measurements to exist.

In essence, the courts are treating the parcels as having been created simultaneously, rather than sequentially. Blacks Law Dictionary defines simultaneous as a word of comparison meaning that two or more occurrences or happenings are identical in time. It also defines identical as Exactly the same time for all practical purposes. The problem that the surveyor faces is how much time has to elapse before the parcels are not considered as being conveyed simultaneously."

The Cuomo and Sec 232 references above seem to speak to the subject situation most directly, and point to, as alluded to by previous posters, that the most supportable solution is Solution 1. I might speculate that the OP is performing a survey of the R parcel, and, as has been my experience, is struggling with the decision to allocate to his client the 0.7'. It has been my experience that, as mentioned by previous posters, it seems to incur less heartache when excesses such as this are found to exist in other lots, rather than when they are found in the subject lot.

Following,

What case law or treatises support the existence of a gap?

Is it not the surveyor's responsibility to locate the lines upon the ground, in accordance with the preponderance of the evidence and applicable legal principles?

Why is the 'gap' surveyor purported to be on safer ground liability-wise, if the 'no-gap' surveyor is, as seems to be the case here, actually on more solid ground with regard to the support for their resolution?

If every time an excess was found as in this case, title to which would be in the sovereign or the original grantor, and which title would therefore have to be quieted by judicial action at great cost to the owner, would this not be just the situation that Justice Cooley feared? Likewise, if by our inability as a profession to agree somewhat as a group on the the answer to the present question, we by the differing results of our surveys cause litigation to ensue, is that not the same situation Cooley feared? The arrival of the surveyor as the finder/creator of problems and causer of litigation?

Great debate!

Unfortunately . . . we are not the final authority. The courts are. Besides, what "standing" do we have?

Great stuff here!

Phil - Sonoma

Elias French wrote:Following,
Why is the 'gap' surveyor purported to be on safer ground liability-wise, if the 'no-gap' surveyor is, as seems to be the case here, actually on more solid ground with regard to the support for their resolution?

It is safer because they wouldn't be building anything over the line, or encroaching upon minimum building setback lines. There would be no possibility for damages to be incurred. You are not doing your client a favor by exposing them to possible future liability even though it may seem "easier" to just let them have the land. Of course, they must be made fully aware of the situation and be given a choice. Lot R bought a nominal fifty foot wide lot and can have their fifty feet, no problem, or they may be able to work with the neighbor to go through the process of agreement/quitclaim deeds. BTW, if they chose not to fix the problem, I wouldn't be filing any record of survey as the boundary line location (ownership) has not been resolved. Designing and building to fifty feet width is a practical, preliminary working solution to the issue, not a final boundary determination.

This situation has little resemblance to Cooley, no problem is getting created by surveyors, no uproar in the neighbor by upsetting long standing lines of occupation. In this case both owners bought their 50 feet and they get their 50 feet. Who is to complain?

Elias French wrote:If every time an excess was found as in this case, title to which would be in the sovereign or the original grantor, and which title would therefore have to be quieted by judicial action at great cost to the owner, would this not be just the situation that Justice Cooley feared? Likewise, if by our inability as a profession to agree somewhat as a group on the the answer to the present question, we by the differing results of our surveys cause litigation to ensue, is that not the same situation Cooley feared? The arrival of the surveyor as the finder/creator of problems and causer of litigation?

No, it is not true that these must be "quieted by judicial action" I think Cooley would say that surveyors occupy a unique and special place where we have the ability to identify these problems and guide clients and adjoiners towards solutions before they have any chance of reaching litigation.

Murray v. Title Ins. & Trust Co.

https://law.justia.com/cases/california ... 0/248.html



Although not an exact replication of the discussed scenario, but the following statement kind-of damages the gap theory:

"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."


So far this is the closest I could find to an answer to this conundrum under State of California law.

Although I personally believe that it was the sellers intent for all 3 parcels to be divided equally (Scenario 3), I am led, in this instance, to lean towards Scenario 1, since I cannot prove "Intent" in this case.

DWoolley wrote:
It is not written anywhere that the junior conveyance gets the property in the gap in title (noting one decade old POB color article being the exception). The rule is the senior grant gets full measure when there is a shortage and the junior grant gets the balance. The rule does not apply when there is a gap due to excess property

DWoolley

Hmmm.

DWoolley wrote:
Actually, it is much worse than the fact they don't know they are incompetent. The incompetent believe they are particularly awesome at the endeavor. The phenomena is called the Dunning-Kruger effect.

DWoolley

Interesting,

William Magee wrote:

DWoolley wrote:
It is not written anywhere that the junior conveyance gets the property in the gap in title (noting one decade old POB color article being the exception). The rule is the senior grant gets full measure when there is a shortage and the junior grant gets the balance. The rule does not apply when there is a gap due to excess property

DWoolley

Hmmm.

DWoolley wrote:
Actually, it is much worse than the fact they don't know they are incompetent. The incompetent believe they are particularly awesome at the endeavor. The phenomena is called the Dunning-Kruger effect.

DWoolley

Interesting,

Typical Magee, hiding behind a pseudonym, nothing to contribute to an interesting discussion. Carry on.

The "decade old...color article" I was referring to was the Paul Cuomo article initially referenced by Steffan. I have more to add on topic. I am planning on writing over the weekend.

DWoolley

DWoolley wrote:TIB:

Olin Edmundson - if it was 0.2' I would gap the property and tell my client to develop the lot at 50'

DWoolley

Now gosh gol-durn it. I just finished a survey in my 2nd least favorite part of the state, and some durn scoundrel of a surveyor set monuments for some new lots a whole 0.2' off of the senior line it was supposed to close exactly 0.0000000' on.

Now after reading all of this, I have been enlightened and feel that I now gotta go back and tell all 12 lot owners affected we need to re-deed, re-plat, perform a LLA and do a hula dance 'cas there is a 0.2' gap.

Dang it.

There is a practical issue with so called gaps. Gaps in real property seldom get maintained. Gaps collect trash, weeds, etc. and become fire and other health hazards, Gaps become hazards. This observation is not based on theory.

It is probably fair to say that premises liability specialists abhor gaps in real property. When the shit hits the fan, it is probably easier for premises liability attorneys to go back to the surveyor than it is to find the owner of the so called gap. That's what I would suggest to the hounding attorney.

I saw Mr. Woolley say above something to the effect that 0.9 ft. in 50 feet is more than de minimis. Our present measurement standards, or capabilities, make it easy to agree. On the other hand, in the 1880s when folks were laying out roads and streets in some of these old towns I would say that Mr. Woolley is over simplifying things, and is overstating the idea of de minimis. When Jethro ran out to lay out the block with his old vara chain because the boss had the new shiny PLSS chain, you might see 0.9 ft. or so busts 50 years later. And then the property owners set 6x6 or railroad tie posts at the corners, well things got a little wonky, but still de minimis by the standards of the day. Sonoma County is full of this stuff.

I'm not going so far as to say gaps do not exist. They do. I've worked on quiet title actions to resolve gaps, usually old roads that somehow never got conveyed.

But I will say that the so called gaps, a foot or two wide, that I have seen were created by surveyors doing half assed research. In my experience, it is always the little house built in the 1880s or so that remains out of the entire block that has long since been sold off and developed. Good God, the old lot is 50.9 feet, but the deed says 50 feet. ..... That is not a gap when you take into account old fence post dimensions, drunken surveyors a hundred years ago on Friday afternoons working on worthless property in some hodunk town 50 miles from San Francisco. New surveyor comes along with scanners, shiny truck, wall mounted license and degree..... enter the 1 ft. gap between fences that becomes the fire hazard.

I will take it a step further, Mr. Woolley describes scenarios where the defending surveyor apparently did not know how to defend him/her self, which offhandedly speaks of incompetence on that defending surveyor.

Fear is no foundation for professional judgement.

De minimis lies in the eye of the beholder. There are 50'x100' coastal properties that sell for 5 million. How much is that per foot of frontage? To the billionaire who bought the parcel, the $100k that it may cost for a lawsuit is de minimis.

I have never seen a 50'x100' lot where someone would choose to throw garbage against a 1 foot strip and look at this trash all day long all while keeping the rest of the property perfectly maintained because a surveyor told them there is a gap. This is hard to imagine... but if you've seen it, OK.

"Fear is no foundation for professional judgement"
I'm confused about this. Didn't you mentioned that we should consider fear of fire in making final boundary determinations?

William Magee wrote:
Now gosh gol-durn it. I just finished a survey in my 2nd least favorite part of the state, and some durn scoundrel of a surveyor set monuments for some new lots a whole 0.2' off of the senior line it was supposed to close exactly 0.0000000' on.

Now after reading all of this, I have been enlightened and feel that I now gotta go back and tell all 12 lot owners affected we need to re-deed, re-plat, perform a LLA and do a hula dance 'cas there is a 0.2' gap.

Dang it.

I've been tempted to stick up for you as you're unnecessarily hounded, but you're out of context and missing the big picture here, my friend.

Olin Edmundson wrote:

Elias French wrote:Following,
Why is the 'gap' surveyor purported to be on safer ground liability-wise, if the 'no-gap' surveyor is, as seems to be the case here, actually on more solid ground with regard to the support for their resolution?

It is safer because they wouldn't be building anything over the line, or encroaching upon minimum building setback lines. There would be no possibility for damages to be incurred.

Agreed, as to recommending building as if the lot were 50' wide, that would of course eliminate the risk of a setback/lot line violation. However, as to the bigger question of the 'safety' of the boundary resolution itself, is not the 'safest' professional opinion that opinion which is most supported by the evidence and legal principles, and therefore least susceptible to attack, and most apt to be honored by following surveyors. Isn't it the duty of the surveyor to provide just this very opinion as to the location of the boundary line, and isn't that the reason the surveyor was hired in the first place?

Olin Edmundson wrote: You are not doing your client a favor by exposing them to possible future liability even though it may seem "easier" to just let them have the land. Of course, they must be made fully aware of the situation and be given a choice.

I certainly don't find it is "easier to just let them have the land", based on the wide range of responses on this issue, many of seem to imply that a surveyor who would choose Option 1 would be committing a grave error, possibly practicing negligently, not serving their client, and so on. Regarding giving the client a choice, isn't the providing of an opinion on a boundary location the sole province of the surveyor? I agree the client should certainly be informed of any and all relevant information and made of aware of possible issues. However, is a surveyor's opinion on the location of a boundary line, or the existence of a gap parcel, to be made contingent on the desire of a layperson, or for that matter the 'easiness' or 'hardness' of 'giving' land to one person or another?

Olin Edmundson wrote:

Elias French wrote:If every time an excess was found as in this case, title to which would be in the sovereign or the original grantor, and which title would therefore have to be quieted by judicial action at great cost to the owner, would this not be just the situation that Justice Cooley feared? Likewise, if by our inability as a profession to agree somewhat as a group on the the answer to the present question, we by the differing results of our surveys cause litigation to ensue, is that not the same situation Cooley feared? The arrival of the surveyor as the finder/creator of problems and causer of litigation?

No, it is not true that these must be "quieted by judicial action" I think Cooley would say that surveyors occupy a unique and special place where we have the ability to identify these problems and guide clients and adjoiners towards solutions before they have any chance of reaching litigation.

If a 'gap' exists, it is a 4th parcel, the title to which in this case is in the original owner. If such a parcel exists, the only way for an adjoiner to obtain ownership of it would be by Quiet Title Action. If it is not a gap, but merely an 'uncertain line', then it seems to be an issue of location, not title, and may be located by a surveyor or agreed to by adjoining owners.

In referencing Cooley, I was referring to a situation where a Surveyor arrives upon the scene, finds an older measurement to be less than perfect, finds the deeds to be 'badly written' and unsurveyable, therefore discovers a 'problem', and possibly a new parcel of land, which the client and adjoiner(s) must solve by one or more of the following: LLA, cross-quitclaim deeds, boundary line agreement, parcel map, quiet title action, or consultation with attorneys. Or the situation where a surveyor finds a gap parcel, and is then followed by a surveyor who finds no gap parcel, or vice-versa, leading to boundary location disagreement, possibly boundary disputes, clouds on title, difficulty obtaining title insurance, and possibly litigation. I agree that surveyors are in a position to assist clients and adjoiners in problematic situations, but I feel that this situation does not necessarily rise to the level, and if we were to find (create) a 'problem' every time this type of survey arose, which is with some frequency, we may actually be creating problems that didn't necessarily exist.

It seems the problem here as far as the public is concerned is the disagreement we have in our ranks, which is what Cuomo seemed to be trying to address with his article, in which he stated:

"The issue of an apparent gap is one with which many (Including some textbook authors) are less comfortable."

The "choice" the client is given is to take the 50 feet or go through a process to clean things up. The 50' is a practical working solution to the issue, not a final surveyor's determination of ownership. As such, no record of survey would be filed that may cloud title in the permanent record. You're mis-stating what I wrote here. Probably most of the time, they wouldn't want to mess around with a formal fix, instead just build to 50', work things out with neighbor and move on with their life. We don't know all of the facts here, maybe this 1 foot doesn't rise to the level of being a "problem" but it's all a question of magnitude in each case. How many feet would be a problem. Two feet? Three feet? Four feet? Would you allow Lot R the excess with any sized gap?

In this case, after 100 plus years, I don't know if I'd worry about the possibility of an heir to the original grantor resurfacing. You'd have to tell your client about this but probably 99.9% chance that an agreement/quitclaim would permanently take care of things.