Lot divisions "half"

[goodgps]

There is a block of 4 lots 300' x 300' each. I will number the lots by quadrant for reference, ie; lot 1 NE quad etc.

The old subdivision tract map has a statement that all measurements and acreages are taken to the centerline of the avenues. The avenues are 40-feet in width. 20 feet each side.
The Southern avenue was never constructed.

Lot 1 is deeded out as the east half and west half
Lot 2 is deeded out as the north half and south half
Lot 3 is deeded out as the north half and south half
Lot 4 is deeded out as the east half and west half

In 1965 a record of survey was prepared on lot 3 and monuments were set representing the north and south half of the lot at 150 feet for each half. The survey was not recorded but only filed in miscellaneous records with the county surveyor.

In 1985, a parcel map was recorded dividing a portion of the east half of Lot 4. The west boundary for the east half of lot 4 was taken as 150 feet.

For All four lots, the assessor indicates 150 feet for each half, the half being adjacent to the avenues, being a net 130 feet.

In 2004 a record of Survey was filed for Lot 2 and monumnets set representing the north half, however, the surveyor removed the 20 feet from the road way and set monuments at 140 feet, close to where he had found an old fence. [assessors plat remained unchanged at 150 feet split] and this record of survey was not indexed in the county data base. {for finding}

In 2006, A parcel map was recorded dividing a portion of the South half of Lot 2. The North boundary for the south half of Lot 2 was taken at 150 feet.
The Southern avenue was formally abandoned during this parcel map process.

This action has left a 10-foot gap. The Property owners are perplexed, and each surveyor involved defend thier actions.

Any thoughts ?

[Ben Lund]

Do you mean Lot 1 is the north half of the east half?

[E_Page]

I would need to know a lot more about the fence before I accepted it as the line and that the original intent was to split the net rather than the whole.

Without solid evidence that the fence was placed by the original parties with the intent to mark the line between them, or, assuming that this is an old fence, recognition by the landowners that it represents the boundary, with a desire to continue that recognition, I'd go with the 150' split.

But that's shootin from the hip. Need to know a lot more about hte history of the ownership and the fence to opine with some level of confidence.



Ben, I read it as each of the 4 lots has been subsequently split and sold as described. Lot 2, the SE Quad of the original, is split 1/2 North and 1/2 South, with the location of that halfway dividing line being the issue.

[goodgps]

Each lot is 300 feet "square" the lot lines extend to the centerline of adjacent avenues. Each of the lots has been "split" in half by deed prior to any of the surveys.

My concern about "halfs" verses "feet" of calls ie [the east 150 feet of ] is the unlike an apple from MOM, there is really no big half in half.

For the surveyor who is invloved in the south half of Lot 2 to go beyond his 150 feet prior to street abandonment, then obtain the abandon portion, would invalidate his deed of being the "half"
Thusly one half of the lot would result in 160 feet while the other is 140 feet as suggested by the North surveyor.

The method of reasoning by tradition in this particular subdivision, seems to support an equal 150 - 150 split.

so far, no one knows any history about the fence. I am ordering old aerials to see if it was there in the 50's and 60's

[Dave Karoly, PLS]

What's the nature of the fence? (straight or crooked, substantial or flimsy, wire or board, etc).

Is there anything in the 10' strip owned by the southern owner, driveways, septic fields, building, etc. Or is it vacant.

Just as a Deed plotting exercise I would split the entire lot into halves (without regard to the right-of-way). The reason is the entire lot includes the right-of-way, so given no other evidence of intent besides the Deed I would split the entire Lot in two because the Deed doesn't say subtract the right-of-way then split the lot in two.

[goodgps]

The 10-foot strip is vacant. The "old" fence (as seen be photos) is patchwork of wood, wire, metal siding and tee posts. The fence has been removed. I'm not sure how straight it was.
Its original construction appeared to be that of a 5-6 barbed wire livestock containment fence.

[Ben Lund]

This is a very interesting situation. It would be nice to say that the intentions of the parties in deeding the “north ½ of Lot 2” really meant to the old fence. Boundary solved.

I would think that it would have to do with the street dedication and acceptance and the timing of the deeds. What did Lot 2 comprise of at the time of the subdivision by deed? Was the street part of the lot in fee or was it dedicated public right of way?

If Lot 2 did not include the southerly street, then the north and south half of Lot 2 is 140’ split.

If Lot 2 included in fee the southerly right of way, then I would say the halves are 150’.

You can’t deed what you don’t own. In my opinion, if you don’t own the right of way when you create the deed, then it is not part of the south ½.

[goodgps]

At the time of the recording of the map, all avenues were "rejected". The avenue along the south portion of LOT 2 was never constructed. The map notes state all dimensions and acreages goto the centerline of the avenues.

[E_Page]

Your description of the fence makes it seem like junk, both literally and figuratively.

You haven't shown any reason to believe that the intent of the placement of this fence was to mark the true boundary.

I agree, 150' & 150'.


Ben, you can't just say that the intentions of the parties is indicated by the presence of a fence. That goes for this fence, or any other on any other project. You may have a pretty good indication that it was likely the intent of the parties that the fence mark the true boundary in many cases. But at that point, you only have a working theory. You would then need to gather all available evidence regarding the fence with regard to the boundary and then decide based upon the preponderance of that evidence. That's a long way from "just saying".

[dmi]

Well, this sounds to me like the old arguement over how you figure area. do you use the area counting the part in the street or do you use the area of the useable lot. I think someone could have decided to use the area counting that portion in the street. This is not a question that can be answered via clsa postings.

Evan is once again spot on, when you find a fence, your work has just begun.

[goodgps]

From What I am reading, (and agree with), it appears that the surveyor for the north half of lot 2 found a fence and ran with it on the basis that it fit one scenerio. The Surveyor for the south half of Lot2 apears to have done more research and based his decision upon the reputation of how these lots have been "halved" for the better part of a century.

I believe it is quite dangerous for the Land Survey industry, to develop an attitude of becoming judge and jury when a situation like this presents itself.

Perhaps a better way of handling this situation, would be to disclose both possible solutions to the owners involved. A round table discussion may have led to an agreed boundary, and this case would not have materialized.

TS Madsen once told me that fencelines may become material only in the complete absence of all other evidence (monuments) etc.
Truely there are times when the fence is the best evidence.

This case provides many record maps and other physical evidence to support the position of the south surveyor.

I hope this discussion helps all of us for the future.

DH

[E_Page]

Although I'm agreeing with nearly rverything you've said, I have to respond to the "judge & Jury" comment.

This term is often tossed around when a surveyor decides to hold the occupation evidence as marking a boundary over the deed dimensions.

We should all note that in the vast majority of cases, our clients and their neighbors, once seeing where we've set our points, are going to recognize those points as marking the boundary, the edge of their property, the limits of what they own. Whether we are right or wrong, most often, our conclusions and the points we set will be adhered to.

Whatever decisions we make, and however we make them, we ARE the judge and jury in the court of lowest competence each time we complete a boundary survey.

Yes, our conclusions may be overturned in court. But the trial court may be overturned by the Court of Appeals, which may in turn be overturned by the Supreme Court.

"But our surveys only represent our professional OPINION of where the boundary line is." What is the outcome of a court case? A judge's professional OPINION of the law pertinent to the case before the court.

"But as surveyors, we are only staking the Boundary Line, we don't stake ownership." Try telling that distinction to your clients. You might find one in a hundred that will get it with a fairly brief explanation. Most won't have any idea what you're talking about if you devoted a week to teach them the difference. Heck, most surveyor's don't understand it, even though many will say it thinking that it shields them from some sort of liability.

Where the "judge & jury" comment can be legitimately used in the context that a surveyor is exceeding his or her legitimate role, is where there may be significant alternate solutions to a boundary location and the landowners are not consulted to determine if they can shed light as to the intent of the original parties, or to give them the opportunity to settle the line where it best fits them, the parties who will need to live with the line.

A surveyor making such decisions in a vacuum would be like a judge refusing to accept all the relevant evidence before deciding a case. It would probably be more appropriate to say of the judge who refuses to consider all available and relevant evidence that he is "playing surveyor".

We should be acting like judge and jury, in the sense that we carefully evaluate all the evidence and apply the law to it appropriately (notice I said APPLY law, not practice it).

You are the judge in the lowest court. Form your opinions wisely to avoid being overturned.

[dmi]

I think I know where you are coming from but there probably needs to be some clarification. First, professional opinion comes about as the result of a process. You hint at this in your example of the fact finding process the jury goes through and the application oof the law that is in the domain of the judge. Boundary cases are often ntried just by a judge.

For myself, I perfer to think of it as providing a SOUND professionl opinion.
Professional opinion is subject to a wide degree of variables, but if I ask myself on a particular job ,
'what would I have to do to arrive at a SOUND professional opinion' , I feel like this will put me in a good position to serve the best interest of the client and community at large.

I think it is important to realize," the boundary is where I say it is because I have a license", is really a non starting perspective and one likely to get you into a heap of trouble.

[bruce hall]

it is not to be generally assumed that the street is included within the lot. Even if a map carries some such note as, "Distances and acreages are measured to centerline of adjoining streets," it does not move the lot line and the street is not by these words included with the lot. The case of Earl v. Dutour, (1919) 181 C 58, 183 P 438, (which in turn referred to an Indiana supreme court case) clearly sets forth the fact that a lot and a street are two separate and distinct terms; this summarized principle refers to usable land."

I copied this out of Wattles Writing Legal Descriptions section 9.2. For what it's worth. Now is a street the same as an avenue?

PS I took a class from Mr. Wattles back in 83. He signed my book. I'm impressed.

[E_Page]

Lot and street separate and distinct.

That depends upon how they were created and what the creating instrument shows.

Most Final Maps show lots and streets as separate entities, and the street only becomes a part of the lot if the RW is vacated or abandoned.

When the boundary is clearly shown to go to centerline, the RW is a part of the lot. A proportionate or aliquot description would necessarily include that portion within the RW unless at some point it becomes dedicated in fee. Once that happens, anything afterward is based upon the net, while any such division prior to fee dedication is still relative to the whole.

[Ben Lund]

I have to apologize because I was being a little sarcastic (and I should have explained the sarcasm) when I said just hold the fence, boundary solved.

After reading Wattles Chapter 9, I agree with Bruce.

Who has fee ownership of the street at the time of the original subdivision?

What would you do if the deed read, “the southerly 140’ of Lot 2â€￾?

What would you do if the deed read, “the southerly 150’ of Lot 2â€￾?

If the right of way was established per the original map, then the lot was halved by deed, then later the right of way was abandoned, I would say 140’ & 160’.

Cheers,
Ben

[dmi]

I think that what one might focus on is the intentions of the parties at the time of the agreement. Did they understand and agree to what they were doing? If they measured from the street side line or the street centerline and monumented in either case the location with a fence line between the parcels that is the boundary and our job is to put it back there- where they originally agreed it to be the location of their boundary. These people are not reading Brown or Wattles or Earl v Detour or other court cases, they divided and conveyed their as they saw fit. All these tools we use are designed to help us arrive at an equitable decision once we no longer have a clear understanding of what the parties intended. Naturally, the intentions of the parties can be defeated by outside forces, but one of them ought not be the surveyor's whim.

[goodgps]

AMEN to that brother AMEN !!!

[Ben Lund]

The map and deed show the intentions. An example that shows this is the scrivener of the deed testifying to his "intention" yet the courts held it's the language of the deed that IS the intention.

It doesn't matter even if the original grantor testifies, "I INTENDED to grant the south half including the right of way."

[E_Page]

Ben,

If there is a latent ambiguity, such as getting to the field and then finding a fence or other improvement that may tend to show that the intention as stated on a deed is not so clear as it seemed, then parol evidence may be, and should be used to clarify that intent.

If it were as simple as just looking at the deed, then title officers could read the deed and engineering techs could measure it. There would be no need for a licensed surveyor.

You are correct when you say that it does not matter if the grantor testifies "I intended to grant...(whatever)". The courts are quite consistent in that. It may matter if the grantee testifies "this is what I thought I was buying", depending upon the other facts of the case.

If there is some sort of latent defect and the grantor and grantee together are in agreement as to information that can clear it up, then that absolutely matters, and in most cases, will settle the issue.

[Ben Lund]

Thanks Evan for clarifying and I agree with what you said. I was being a tiny bit sarcastic in my “just hold the fence” solution.

After reading Wattles Chapter 9, I agree with Bruce. Problem 1 at the end of the Chapter says, “Will ‘distances and acreages measured to center of adjoining streets’ cited on the map change the lot lines from side line to center line of street?”

Wattles answer: No (pg 9.2 3rd paragraph).

Problem 4 says, “Is a dedication on a map of public area a fee or easement type of status?”

Wattles answer: Easement (pg 9.2 1st paragraph and pg 9.5 4th paragraph). I am sorely lacking in my understanding of how California (or any state for that matter) deals with public right of way. I seem to recall a previous thread on this.

Is there an ambiguity in the deed description (latent or patent)? What would you do if the deed read, “the southerly 140’ of Lot 2”? Would you do something different if the deed read, “the southerly 150’ of Lot 2”?

Wattles quotes from a California case, “A dedication without acceptance is, in law, merely an offer to dedicate and such offer does not impose any burdens nor confer any rights, unless there is an acceptance.” (County of Inyo v. Give, 183 Cal. 415)

It would seem to me that if the agency did not accept the right of way, and the south ½ was deeded, then the lots are 150’ and 150’. If the agency accepted the right of way, then the south half was deeded, I would say 140’ and 140’ (and then at the street vacation time 160’ and 140’).

Also Cuomo sheds some light on the issue in his book Advanced Land Descriptions (pg 97), "When an owner conveys a portion of a lot in a subdivision by an “of” or linear description, the distance is measured from the side line of the street. A later vacation does not change the lot line shown on the plat, even though there may be a reversionary interest in the street.”

[E_Page]

Even if they accepted, and if the RW dedicated was a RW easement rather than in fee, in the absence of superior evidence to the contrary, it would be 150'/150'.

A RW is presumed to be an easement unless clearly expressed otherwise. A dedication may be fee without clear expression of that in the IOD statement if the local jurisdiction has an ordinance that such dedications are for fee RW. But short of such a law or clear language that the dedication is fee, it's presumed an easement, and thus still part of the underlying parcel rather than a separate portion of land unto itself.

[hellsangle]

as . . . we are charged with surveying accurately on the ground, what is written in the record:

"There is a block of 4 lots 300' x 300' each."

"The old subdivision tract map has a statement that all measurements and acreages are taken to the centerline of the avenues. The avenues are 40-feet in width. 20 feet each side."

If I understand correctly, the lots are "defined" as being 300 feet x 300 feet. (Written in the record?) Furthermore, the original surveyor/engineer "defines" the road right-of-ways via his/her statement. Right?

Therefore . . . ½ of 300 feet = 150 feet.

The only thing that might change matters is if the Lot OWNERSHIP were not to centerline.

Speculation indicates the fence could have been placed by owner(s) attempting to circumvent hiring a competent surveyor. A great deal of sleuthing is required for one to have add credence to the fence. The surveyor that went 140 feet - may have had reason to do so. Try prove his/her (140'-Surveyor) opinion . . . without oaths, without agreements, hand shake, ???? . . . between the two owners at the time the fence was constructed!

The extraneous evidence may no longer exist for the 140-Foot-Surveyor.

If all else fails, what are the facts (from the writings!)?

Civil Code:
831. An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.

(1112.) Section Eleven Hundred and Twelve. A transfer of land, bounded by a highway, passes the title of the person whose estate is transferred to the soil of the highway in front to the center thereof, unless a different intent appears from the grant.

Code of Civil Procedure:
(2077.) Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:

One--Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.

Two--When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.

Three--Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.

Four--When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.

Five--When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance.

Six--When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.

and probably more . . . another reason to set artificial monuments, record your survey and call to the artificial monuments in the writings. Good luck.
Half-zzzzzzzzzz is the lazy way . . . when typing/carbons/etc. . . . may have been reason. Who knows, maybe the writings were by an attorney who "built-in" future employment using the writings . . . and of course -knowing developers frugalities = guarantied a future. Ha!

Phil - Sonoma

[Ben Lund]

What I’ve learned from Wattles and Cuomo is that it doesn’t matter what is owned in this case. I believe they both say that the 140’ surveyor is correct.

The fact is, the word “Lot” in the description refers to that portion of land as shown on the plat up to public right of way. If it were any other easement besides public right of way, then the easement is included in the definition of lot. Again, as far as what Wattles and Cuomo say, this has nothing to do with ownership.

[E_Page]

Huh? A boundary survey has nothing to do with ownership? Ben, you seem to be stuck on accepting the fence on the assumption that the parties erected it with the clear intent of delineating the true boundary. Go back and read all of goodgps's posts, and only his posts to get a clear idea of the scenario. And I don't want to repeat myself, so go back and read my post of 5:16, yesterday.


While I'm on that, I just fully read Dane's response to that post. I gotta ask, what the heck did you read, Dane? It could not have been my post if you got out of it that:

1) I somehow implied that a boundary opinion is NOT the result of a process. I think... scratch that... I know that I have said many times that a boundary opinion is the result of the surveyor carefully considering ALL of the evidence. As a matter of fact, I said that almost verbatim above. Did I somehow suggest that is the same as pulling a rabbit out of a hat? I'm not sure how anyone could interpret careful evaluation of all the evidence as anything other than a careful process.

2) Where in the he!! did I EVER imply that a surveyor should issue a conclusion based upon anything other than SOUND professional opinion? How on Earth can a statement imploring surveyors to CAREFULLY CONSIDER ALL OF THE EVIDENCE be construed as advocating less than sound opinion is beyond me.

3) "the boundary is where I say it is because I have a license." Where did you read that? Can you find anyone, anywhere, who at any time, ever heard me say, or read something that I wrote, that actually says, or even implies that?

I really hope that I have misunderstood your reply and that those comments are a response to something other than my comments, because they don't fit.

I didn't write anything that should have scared anyone who realized that they have the responsibility to do more than blindly stake a deed or blindly hold a fence. From your previous posts and our conversations in the past, I perceived you as one who understands this, so that doesn't fit either.

This is one of those times that I hope that I'm misunderstanding something.