California Surveyors Forums

I'm too busy right now (luckily) to get into researching this topic to back up my impressions, so forgive me for that.

But it seems to me that there are two basic categories of mistakes (conflicts) concerning legal descriptions in deeds: those with internal conflicts and those with external conflicts.

Internal conflicts: transposed numbers, missing courses, contradictory calls, etc.

External conflicts: the description itself is good--entirely consistent within itself and completely clear and capable of being surveyed on the ground--BUT, it conflicts with the adjoiner deed. There are 2 (or more) adjoiner lots with descriptions that are internally consistent but they are inconsistent between themselves.

"Intention" coming into play only for the descriptions that are in error, internally.

Most gaps and overlaps are phantom gaps or overlaps. That is, they do not exist on the ground, nobody is or ever has been aware of it's existence prior to the surveyor finding it. Most gaps are not the result of a grantor intending to retain a strip for some use, but are the result of a mistaken understanding of the dimensions of the parent parcel.

To be clear, as Jim's example demonstrates, there are instances where a strip may be intentionally retained although that intent may not be readily apparent by an inspection of two apparently adjacent descriptions, but those instances are not very common.

Gaps (and overlaps) most commonly occur when a grantor creates conveyances described by dimension only and having a mistaken notion of the overall parcel dimension. A classic example is where Adams conveys the East 1320' of the NE 1/4 of Section XX to Smith, and some years later conveys the West 1320' to Jones. I doubt very much that in our collective centuries of experience, any of us has ever seen a 1/4 section which measured exactly 2640' x 2640'. But that is the nominal dimension and many, many grantors have written conveyances based upon the erroneous assumption that a 1/4 section is a perfect square 1/2 mile. Thus every time such a conveyance is made, a gap (or overlap) is unintentionally created on paper if not in the real world.

Sure, one can argue that "The scrivener should have known to write the junior description with reference to the senior conveyance, like 'All of the NE 1/4 of Section XX except for the East 1320'", but we all know, or should know that a great many scriveners did not know enough to do that. Unintended gaps and overlaps abound because the scrivener neglected this simple clarification.

What is created by what we now recognize as careless description writing is an apparent gap, but not a real one. If the surveyor can discern through proper resarch that there was no intent to create a gap, he does a diservice to his client and the client's adjoiner in providing the basis for a dispute which should not occur.

Diligent research will, in most cases, identify a phantom gap or overlap. It is a mathemagical construct of use of imperfect dimensions when the descriptions were written as compared to dimensions of a higher quality when the surveyor comes along in 2011. Sometimes a comparison of the descriptions of the parent parcel to those of the parcels created from it will indicate that the dimensions of each part were intended to add up to the whole. Sometimes one needs to go back through the deeds in the chain to discern what the grantor assumed he owned, which will demonstrate either an intent to retain or a lack of such intent. If the answer is found in the research, the surveyor should make a determination and offer to assist the landowners to correct title for the purpose of removing the defect causing the ambiguity in written title.

Sometimes exhaustive research of the records does not yield a basis of an opinion that a retained portion was either intended or not. The surveyor should be very careful in attempting to resolve the discrepancy and offering an opinion of the true line before working with the landowners and the title company to resolve the written title. It may be an intended retained strip or it may be a phantom gap.

If the surveyor does not have sufficient evidence to support a determination one way or the other, the scope of the survey has changed from just retracement to one of ascertaining and/or clearing title, usually requiring the involvement of title and or legal professionals before surveying the boundary can resume.

As with so many other particular issues in surveying, taking an absolute stand one way or the other is unrealistic at best, and irresponsible at worst. To state that the surveyor should make a determination of one single line in any case a gap is found is potentially damaging to the landowners and dangerous for the surveyor. To state that the surveyor should never make a call when an apparent gap is detected is to deny that the only expert licensed to determine boundary locations is incapable of doing so even when proper research makes the original intent of a single boundary and the intended location of that boundary readily apparent to anyone competent to interpret deed language.

If one is to state that it is beyond a surveyors abilities to address a gap, then one must also hold that a surveyor cannot address an overlap, or even definitively determine a boundary location anytime in a sequential conveyance when a junior conveyance fails to call to the senior one.

If a gap is found when this happens, and one states that it is beyond a surveyors ability or authority to determine that there is not a real gap, then to be consistent, one must also hold that the surveyor cannot determine the true width of such a gap, or if there is apparent close mathemagical agreement between adjacent descriptions or an overlap, that the surveyor cannot determine whether or not it was the grantors intent to actaully retain some useful gap rather than create an overlap or harmony between the two conveyances. A surveyor would have to do a CYA about the potential for an intended portion retained by the grantor on every line of sequential conveyance which is interior to the parent parcel or which does not specifically call out the exterior boundary of the parent parcel.

If you find a gap in our fictional 1/4 section between the E & W 1320s which is 12' at one end and 9' at the other, do you assume it to be real and determine there to be two boundaries. Let's take the nominal aliquot aspect out of it and call the parent parcel some parcel which is nominally 500' x 500', and the conveyances from it to be the E 250' & the W 250'. Same question, apparent gap found 12' & 9' at the ends, 500'+/- long, how do you treat it?

What if the width of the gap is 5' & 3'? What if it's 1.3' & 0.8'? What if it's a gap of 1.3' at one end and an overlap of 0.8' at the other? What if there is overlap at each end of several feet?

Don't treat these as rhetorical, and don't sidestep them by merely stating that it's not a matter of magnitude. I'd like to know your answers and have you explain the logic and consistency of your logic between the answers.

I would agree that it's not a matter of magnitude, but one of research and service. How the surveyor handles it depends upon what is found in the research.



To the two Dave's (K & W), one thing I'm certain that you would both agree on is that the surveyor should not simply identify the conflict in the written title and send the client on their way to sort it out themselves. I'm quite sure each of you would attempt to discern how the conflict was created, and advise the client as to the current effect on title and of possible avenues of appropriate remedy.

This issue, like so many others in our practice, does not lend itself to the absolute answers you each seem to have stated, and I doubt that either of you would treat each found apparent gap or overlap in the same manner in all cases.

I know both of you and know each of you to be knowledgeable professionals who are each diligent in the performance of your work. Please, no disparaging remarks. Please treat each other with appropriate respect.

Dave,

It's devoid of references because I addressed the issue in a general fashion. How one addresses a gap depends upon the factors surrounding it's creation and existence. A gap (or overlap) is not the issue, it is the symptom indicating the existence of an issue. The surveyor must then attempt to discern what the issue is. Is it mistaken reliance on incorrect dimensions? Is it a scrivener's error? Is it an apparent and failed attempt to describe one line through two descriptions? Or, was it a purposeful retention of some portion of the parent parcel? Usually, a diligent surveyor can identify the underlying issue and deal with it. sometimes the issue is more elusive.

A doctor does not treat a cough, he finds out what the cough is a symptom of and then treats the ailment. Since we are professionals, we should not stop at finding the existence of a gap (the cough or symptom), but seek to find the cause for that gap (the ailment) and address it. If we stop at merely identifying the gap, we are little different than the drug store clerk who sells cough syrup.

Does the record explain how it was created? If so, one may find that it is an intended gap or a phantom one. If an intended gap, then obviusly I would show the existence of the land intended to have been retained by the grantor. If not intended, then I look further at the conditions. It might be solved by applying senior rights. There may be conflicting occupation, adding another dimension. There may be a physical establishment indicating the intent of the original parties. There may be recorded or unrecorded surveys which would shed light on it.

As I said, it is a matter of research. The evidence, if available, should lead one to the answer. Sometimes the evidence is not available. In such a case, that's when the focus changes, the survey is put on hold and the surveyor, together with title and maybe legal professionals, assists the landowners to ascertain the underlying title and then to take necessary steps to clear it so that the appropriate line or lines may be definitively identified.

There is no one size fits all answers. I will check my references later to see what various authors say in general. The book you and I just reviewed, and that author (the one you referred t oin an earlier post, I believe) addresses gaps in general by the application of senior rights. I have seen that general advice given in college courses and in seminars. While I can't state with certitude at the moment that I've also read it in any of my reference books, I'm fairly certain that I will find such advice in one or more of them.

You are asking for a reference which gives the authority to surveyors to address the situation of a gap. Gaps and overlaps are an inherent part of boundary surveying. Anyone who has performed more than a dozen or so retracements of properties created by sequential conveyance will have encountered at least one gap and/or overlap. §8726(c) authorizes the surveyor to locate, relocate... boundaries. Implied in that location is also the authority to opine as to whether discrepant descriptions were attempting to describe the same line.

Do you have a reference that states that a surveyor may not opine that discrepant descriptions may be attempting to describe the same line? You offered the reference from E&P that stated that surveyors may not offer opinions on title and ownership. But what does Mr. Robillard, et al base that statement on? Are you aware of a legal reference, statute or case that backs that up. I'm not talking about something specific where a particular surveyor stepped way out of his area of expertise to offer a negligent opinion, but some case or other authority which states that such opinions are reserved to some other licensed practice and that proscribes surveyors from venturing into that area?


If we can't resolve discrepancies through diligent research, or help landowners resolve discrepancies which cannot be resolved through research alone, then what good are we? Why not just let anyone who can glean numbers from a description and run a measuring device locate boundaries?


Edit: Echoing Dane from the other thread, cut out the "Mr. Page" stuff. We've been on a first name basis for quite a while.

That is not a question that has an answer.

The real question should be "how would you advise the land owners of the existence of the title conflicts you found?", and "what are the avenues available to correct them?".

Now if you are just looking for a down and dirty platting method to get a project stuffed thru the local bureaucracy, then that would be another issue entirely... and a personal choice of the parties involved.

The guy in the 27 deed gets the east 50 feet. Why? Cause he is senior, the first guy in and he got what he thought he bought-the 50 feet.

The guy in the 31 deed gets the rest. Why? He got lucky. Although I don't think that you will find the term "lucky" in any surveying text book or in case law.

If I am right, great. If not, I guess I shoulda called Woolley before I set the pipes.

Okay, one, two, three, submit reply........Gosh this is too gutsy.

DWoolley wrote:Evan,

Based on your response (s), your solution is fact dependant. Here are the facts:

Smith purchases Lot 1, which is platted to be 100’ x 100’, 1925

Smith to Jones, the East 50’ feet, 1927

Smith to Brown, the West 50’ feet, 1931

The title has passed the same through the years.

In 2011, the owner of the West 50’ commissions a survey. The surveyor finds the original Lot 1 monuments called for on the plat. The lot is measured to be 102 feet in the east/west direction by 101’ in the north south direction. The land is vacant.

Who get the excess and why?

Dave,
Here's a reference. Thanks to Mr. Cuomo

THE RULES - Distribution of Excess and Deficiency Compiled by: Paul Cuomo
Ogden's Revised California Real Property Law Volume 1 pg. 627 Sec. B "Designated Areas Conveyed"

(2) Any surplus remains in the original grantor, but if the last conveyance shows an intent to convey the entire balance of the entire balance of the tract, the surplus is in the last grantee.
(c) If a surplus strip exists between descriptions that originally matched of record, vesting of title to the strip ORDINARILY embraces all possible constructions, with the least weight given to a vesting in the original grantor. In fact, CIRCUMSTANCES often justify an assumption, at least as a matter of insurance risk, that the grantor did not INTEND to retain the strip.

Brian

I'll take a stab at your hypothetical later when I have time, Dave. As Peter suggested, it's not a question that lends itself to an answer, but it does lend itself to a host of additional questions. When I address it, I'll answer with some of those questions.

In the meantime, you have not addresses the questions from my 6/22 5:49 post (post #3). Care to do so now? As clarification, my questions are not trick questions, but are posed to get an understanding of the logic you would use, detect any apparent inconsistency which I would then ask you to address, and get a better understanding of the basis of your opinion on this subject matter.

I have said before that the question of gaps is a question of proper evaluation of evidence. Evan gives a very good and lengthy post on the subject above. The purpose of every Survey is to evaluate all of the evidence available and come to reasonable conclusions. I see no logic in saying a Surveyor can resolve an overlap but not a gap. Again, the surveyor is not taking affirmative action to close a gap because he has no authority to do that. If my client's 50' wide but junior Deed overlaps into the Senior by 10' what right do I have to deny them their 10'? If I can't find the gap doesn't exist then I can't find the overlap actually does exist either it seems to me. Most description problems are a question of evaluation of evidence. Sometimes the evidence doesn't come to a clear conclusion so other remedies beyond normal surveying effort may be required.

I do not automatically do anything. All evidence must be gathered and properly evaluated. Some gaps do actually exist and there is a reason for them.

I have found a gap which in my opinion is intentional (an adjoiner to a survey I did). A landowner owned a lot in a Town on an east-west street. The lot is rectangular oriented north-south. The landowner conveyed a portion in the rear. Later the landowner conveyed the remainder in front except a strip 15' wide on the east side of the lot. The two parcels were later rejoined in Title with the 15' wide gap left out. The front parcel is occupied by a retail store building, the rear parcel is occupied by an addition to the store building and the gap is a concrete patio with cover used by the retail business. My speculation is the 15' strip was kept as a driveway to the rear parcel; that makes the most sense. That could have been done better with an easement but then back in the day sometimes people did weird things to their property.

I don't recall finding a gap in recent years that appeared to be unintentional such as the east 50' and the west 50' of a lot which turns out to be 105' wide in reality. The closest I came to it they actually did it right; the parcels were described from east to west and the last one on the west was Lot X except YYY' which added up to the width of the other parcels. Dang it a chance to make a point and the derned scrivener 75 years ago actually did it right for a change.

I don't think you will find case law in answer to what is essentially an evidence question. It would take infinite case law to answer each and every survey question I run across.

This is one hellovan educational thread, I can feel the propeller spinning on my cap.

Dave W., reading through your posts brought to mind exactly that 2005 LS Exam problem, and if I recall correctly the pass rate that year was under 15 percent, and I bet nobody got that question right. I never did agree with the solution to that problem. The subdivider cannot subdivide land he does not own, so any intent to do so is impossible. My mind then says there was something wrong with the original survey. Oh, so now we see a gap adjoining Lot 7, now did the subdivider intend to retain this little sliver of land that you could not even park an outhouse on? Or perhaps is there something again wrong with the original survey? I see your point Dave W., and you are probably right, but this is where I diverge and agree with Paul Cuomo. Now what if the subdivider's heirs are many and they are scattered across the globe? Do we need to get them all together so we can clear up the title on this little sliver? Or do we express the fortitude as professionals, note both the gap and the overlap on a RS and go back to work on the next one?

There's only so much fear we should put up with, only so much questioning of our competency (however minimal). Sometimes you just have to call it "good". Otherwise we would not be seeing the great testaments of man's enginuity, we would be living in caves.

Trying to see the forest through the trees.

It's exchanges of thoughts and ideas like this thread that really help forge a community, help those of us newer to the profession within the profession, and add value to CLSA.
Thanks you guys.

Cheers.

Since BPELS never released the answer key to the 2005 exam, the solution attached must have come from somewhere else. Has BPELS ever confirmed that the solution attached reflects that of the answer key?

The one time I participated in Standard Setting (arriving at the exam cut score), there were far easier questions than what to do with a gap that it was deemed that well less than half of the minimally competent examinees should be able to answer it correctly. So the point that since it is on the exam that it is automatically something all minimally competent surveyors can answer in agreement with the answer key doesn't comport with actual practice of grading the exam.

Additionally, in an exam situation, they do not give one the option of obtaining more information prior to making a determination.

Those developing the exam and the answer key are not infallible. That is one of the reasons why each step of development and grading is done by a team of professionals and never by a single surveyor. Professionals can have differing opinions. The exam grading and appeals process has often involved lengthy and sometimes heated disagreement over the validity or correctness of certain answers. There is a process by which team members can document minority opinions to express disagreement and offer arguments in support of their opinions.

If the solution you have provided with Problem 2 is reflective of the answer key, I might have filed a minority opinion that would state among other things that since the conveyances are in reference to the map, and the map clearly identifies the North line of Block M as being the North Line of Section 8, it is clear that there was no intent of the original subdivider to retain any lands between the North line of the subdivision and the Section line because they were very clearly intended to be one and the same. And if that intent is not clear enough, there is the very basic concept that doubtful meanings within conveyances (and I guess here, it is being argued that it is doubtful whether the North line of the subdivision was intended to be the Section line) are to be construed against the grantor. The grantor/subdivider simply cannot have retained ownership of any lands between the section line and the boundary of the subdivision because they are one and the same.

The real issue created by but apparently unrecognized by the writers of Problem 2005-2 is one of incorrect establishment of the section line. That creates ambiguity of the location of the boundary, it cannot create a not-a-part parcel where no place for such a parcel is allowed for. Retention of some parcel of land, contrary to the clear intent as shown on the original subdivision map would constitute fraud on the part of the original grantor.

I have to leave my thoughts incomplete at this point because I don't have time to continue. I'll check back later and expect to see at least one spirited retort to this. Hopefully, I will find time to get more in depth later.

DWoolley wrote:Evan,

Based on your response (s), your solution is fact dependant. Here are the facts:

Smith purchases Lot 1, which is platted to be 100’ x 100’, 1925

Smith to Jones, the East 50’ feet, 1927

Smith to Brown, the West 50’ feet, 1931

The title has passed the same through the years.

In 2011, the owner of the West 50’ commissions a survey. The surveyor finds the original Lot 1 monuments called for on the plat. The lot is measured to be 102 feet in the east/west direction by 101’ in the north south direction. The land is vacant.

Who get the excess and why?

That one is too simple. All of the E-W excess goes to the West 50' as the east 50' feet is senior in the chain of title, unless you can prove otherwise by finding monuments set at the time of the first deed out.

And as Dave Karoly has pointed out, intent, which was to convey the entire lot, is paramount here. Ergo no gap.

Uh Stephen, if you are not careful you are going to be added to Wooley's list of people to sue!

LOL.

Dave, you wrote this, perhaps in response to my post regarding Probelm 2005-2: "I will offer this, a land surveyor that believes his authority allows for the determination of the intent, beyond written intent, of the parties and acts on this wrongful presumption is not defendable at any cost. The determination of intent includes closing gaps in title."

If you construed my logic as going beyond the written intent, you missed it. My point was that the written intent of the deed in that problem was to convey Lots 1 & 7, which were intended to be and are bounded by the Section line. The question isn't whether ther was some fictitious, concealed, and only just discovered parcel wich now (or in 2005) is all of a sudden retained by the original grantor. The issue there was an incorrect re-establishment, or local establishment of the section line where it is a boundary of the subdivision. Two lines were not and could not be created there because of the clearly expressed intent on the map, which by reference is fully a part of the deed, that the North line of the subdivision and the section line are one and the same.

That differs greatly from Jim's example in the Lease thread in that, even though it was highly unlikely that the grantor in Jim's example intended to retain a 10' strip, the clearly expressed words of the deeds (E 70' + W 60' = 130') coupled with the known overall dimension of the property (140') clearly and unequivocally leaves a 10' gap, or a gap of whetever width results from the remainder after 70' and 60' are removed.

That is clearly not an issue of where the boundary is, but one of what the boundaries are, and so does not lend itself to resolving the written title and the facts on the ground as a matter of survey to define a single boundary between the apparently adjacent properties. It is a real gap apparently created due to an oversight which needed to be corrected by legal remedy.

It is a completely different problem from that which would have occurred if the deeds had read the E 80' and the W 60', with all other facts remaining the same, but tossing in that perhaps that the latest survey showed the overall parent parcel to have been 141' wide. Had that been the case, with no acknowledged ownership by the original grantor or his heirs, nothing having been available to inform the original grantor that his lot was anything other than 140' wide, no indication of existing use or intended use of the 1' strip, and actual occupation to a common line in the vicinity of the W line of the E 80', then the intent to have deeded two parcels totally emcompassing the whole, no more, no less is clear in the written conveyances by a reading of the plain language of the descriptions and no evidence of something informing the grantor of a greater width than that indicated by record. One does not need to go beyond the written intent to discern that the 2nd conveyance intended to convey the remainder of the property (140-80=60, even to a judge).

I dont have time for a proper response, and I dont think any amount of clear and convincing evidence would move anyone off their current position,
BUT
Why has no one given our own late, great Mr. Wattles his due and cited section 11.16-11.17?
Pretty good discussion there.

My main point of contention is the position from the Cert. of Correction? thread post #35 that :
"The example provided there is no conflict, each person was granted 50’ and each received 50’. No conflict. Grant deeds fall under contract law, the contract was fulfilled."
You can't ignore the fact that EXTRINSIC evidence reveals an ambiguity, and that discovery puts the issue of intent in play.
EVEN IF you say there is a 5-foot gap in the original grantor, you have made a determination of the intent of the original "Contract".
I would disagree with that interpretation, given that particular fact set, but I wouldn't say you were not allowed to make that call.
Has anyone mentioned the old "Interpreted in favor of the grantee"?

Anything we do is subject to review by the land owners and courts, and as Walt Robillard says "We live on the verge of litigation"

Propst is exactly right. Whatever you do you are determining intent. Other than in Jim's case, you have no evidence of a third parcel but you are determining one exists. Therefore you are determining an intent which I don't see any where in the writings. Suppose the two parcels come into a single ownership and you support the original grantor's claim to an unknown strip you could be guilty of slander of title. There is no free lunch.

Jim's case is different from the typical latent gap type of case. The writings don't add up leaving a patent 10' gap, the Assessor taxed the gap as a separate parcel and the adjoiner has a record claim to the gap via a tax deed. There is an active dispute underway. Unfortunately the state of our legal system does not allow for easy resolution of these problems unless the two property owners are willing to work together. The best Jim can do is be his client's expert in a lawsuit but his client may not be able to afford all the costs of a lawsuit against her neighbor.

Dave's examples of nuclear litigation warfare really proves how distorted things can get when huge amounts of money are involved. It's too bad we don't have a better way to handle these things other than giving a law firm 300k to negotiate a settlement of 460k.

Nice example and explanation, Dave. Easy on the legal mumbo jumbo, yet easy
to understand, and made a lot of sense. Something to remember and learn from.

"Anyone want to take a shot on who writes the check? (Hint: not Smith, not Jones and not Surveyor B)."

Surveyor A writes the check (or maybe he moves to Mexico).

I was just thinking, kinda, is it possible to receive PDU's or CEU's for participating in these threads? How about if I just read the threads? Would that count as well? Like I said, just thinking, kinda.

I only have 4 bullets left until I have to reload.

Why would someone take this clearly formulated restatement of CCP 1856(g) [look it up at http://www.leginfo.ca.gov/calaw.html]
“You can't ignore the fact that EXTRINSIC evidence reveals an ambiguity, and that discovery puts the issue of intent in play.” [Post 25]
Into this statement of absurdity:
“Review of the extrinsic evidence, extrinsic meaning “outside of the record” being introduced to better understand the record (in this case a contract/deed).” [Post 26]

You tell me.
If you EVER see me post something like THAT, call me an ambulance.

Why would someone give this (incomplete) quote from Deering’s:
“if the written instrument is intended by the parties as the final embodiment of the terms contained in it, subdivision (a) makes parol evidence inadmissible to contradict those terms.”

And NOT give the subsequent sentence which explains and expounds on the limits of that subdivision? [Bonus CEUs for the first person to look that up and post it here. It’s on page 476 of the current edition, in the bottom half of the page, but in any event about 3 pages in to the 121 page exposition on that single code section]

You tell me.

Those little tricks wouldn’t work in a court, and they won’t fly here either.
They might mislead some surveyors, but no Judge is going to be deceived.

Don’t be fooled people, don't be cowed, follow up on the references presented and draw your own conclusions.

To ask “what do you do with the gap” begs the question.
The true phrasing of the situation is “what do you do with the discrepancy between the record and the measured dimensions?”, in other words, what do we do with the latent ambiguity revealed by extrinsic evidence.

For those of you who don’t have the advantage of most of the research material, here’s a little quote from my close personal friend “Clark”:

“Where the same grantor conveys to two persons a lot of land each, limiting each to a certain number of rods or feet from opposite but known boundaries, and in the direction so that they would meet if extended far enough, and, if by measurements the lots do not join, when it appears from the same deeds that it was the intention that they should so join, a modification of the doctrine stated above will be followed. In such cases a rule should be applied which will divide the surplus over the measurement named in the deeds, ascertain to exist, by actual measurement on the Earth's surface, between the grantees in proportion to the life of their respective lines, as stated in the deeds. Still, this modification of the doctrine is practically an affirmation of the same principle.”
Clark on Surveying and Boundaries, 7th ed., by Robillard and Bouman, Section 12.11,; 4th ed., by Grimes, Section 243. LOOK IT UP.

And here’s one from my old buddy “Skelton”:

“(6) Where there is no connection between the deeds of the various grantees in both time and circumstances (Hruby v. Lonseth, 63 Wash. 589, 116 Pac. 26; Bloch v. Pfaff, 101 Mass. 535) and each grant is distinct and separate, the deeds take precedence in order of seniority and the Junior deed must bear the deficiency or the excess” Section 218, 1st ed., 1930; section 3-4, 2nd ed., 1997

Skelton’s “The Legal Elements of Boundaries and Adjacent Properties” gives reasons for not applying the surplus to the original subdivider in section 3-10, 2nd ed., section 226, 1st ed.:

“The grantor has too many means at his command for evading the responsibility of guaranteeing the dimensions of the parcel conveyed, and any rule that further favors him should be applied with caution. It is true that the rule may work to the grantee’s advantage in case of a surplus, but the gain is so slight that it does not offset the disadvantage of unstable boundaries. The only real gain to the grantees is the fact that the rule denies the original grantor title to a surplus, but they pay for this by relieving the grantor of responsibility for the shortage."

This is in line with the maxim contained in Civil Code section 3521: “He who takes the benefit must bear the burden.”

While the issue in the case of Faus v Nelson, 241, Cal. App.2d 320, was not one of a gap per se but rather ownership of an abandoned easement, the court there, quoting a previous Supreme Court case, Brown v. Bachelder, 214 Cal 753, noted:

"a strip of land the width of a Street can be of little use to the dedicator who has parted with title to all lands on both sides of the street, as was done by the original dedicator in the instant case, and it will not in such circumstances be presumed that he intended to retain the fee as a remnant of his private estate."

How much more for a narrow strip of land such as is generally the case when the only issue is the discrepancy between the record and recent precise measurements.

As to the relevance of the 2005 exam question, it must be noted that this question was factually distinct from the hypothetical 100 foot square lot. The 2005 exam question had a monument at the Northwest limit of that tract, whereas the hypothetical does not have intermediate monuments.

I believe the issue of monuments is confusing a number of people as to how to deal with these areas. There are a number of sections in Brown's which discuss the problem, but section 12.42 in the sixth edition has

"Principle 29: Where the original subdivider failed to subdivide all the land as shown by found original monuments, the surveyors should not extend the lot lines beyond the limits of the original monuments. Title to the unsubdivided land probably remains in the original subdivider."

Note the references to found original monuments in that preceding principle.
Then, note the "Limitations on the Principle" immediately following:

"This rule cannot apply to small insignificant errors or cases where the original subdivider's monuments cannot be found. When a subdivider indicates by the title that all the land was subdivided and no monuments on the ground indicate otherwise, it must be presumed that all the land was intended to be subdivided.”

That statement has been in every addition of Brown's Boundary Control and Legal Principles:
Section 12.42, 4th, 5th, & 6th editions; Sec 6.43, 3rd; Sec 5.40, 2nd; Sec 158, 1st

Finally, I will attach Wattles’ take on the subject, not for the surveyors here, because I know every California Surveyor has a well worn copy of that book on his shelf (at least those who do “office work”), but for the benefit of the non-licensed or out of state folks who come here and lurk, hoping for elucidation on these confusing subjects.

PLEASE: Don’t believe a word I say, look it up and see for yourself.

Most of these books are freely available at your local public Law Library; you should spend an afternoon there one day and peruse the selection.

Go to the first link above and read those sections of the code of civil procedure (1856-1866). Look for the words I used in post 25 and see how that relates to the situation at hand. There’s lots of other good info in there as well.

An attempt to impose a new rule on how to approach the subject of excess must be based on either the statutes or case law. I don’t see either provided by the proponents of this novel approach. Mere assertions will not do. Anecdotes are not sufficient. Scary stories shouldn't inform our judgment.

I find Mr. Cuomo’s article well reasoned and appropriately sourced. I can see no reason to attack it on the grounds proposed.

I concur with Page, Karoly, Hall, Wattles, Brown, Clark, Skelton, Ogden, Cuomo, Karayan, and the California Supreme Court in Brown v. Bachelder.

I will not comment on the other hypothetical as I feel we have no agreement on the original issue, and the introduction of the other hypothetical is only a tactic of distraction.

Don’t forget about the extra CEUs!

in the post by Propst it appears that Gurdon sees three answers to the scenario of a gap.

The first being that the Junior (Parcel B) gets what is left if Parcel B was sold a few years after the senior cut out.

The second being a proportionate amount of the gap should go to both buyers of Lots A and B if the sale of both parcels took place within a few months of each other.

The third being that the gap still exists in the hands of the original grantor.

Gurdon also states "be careful how you handle it."

I also noted that my Wattles was signed by Gurdon on 5-7-83. I remember taking a class from him, but what he talked about or what I learned, I haven't a clue.

In response to the question of E 50'/W 50' I have the following answer:

Jones receives the his full amount of the East 50'

Brown receives his full amount of the West 50'

The remaining 2' is still owned by the original grantor being Smith.

If either of the two current land owners wish to have the excess property then deed reformation or a quiet title action must be pursued (hence why they are available).

I am sure I will get some heat for this answer but I feel it is not only the truth but also following the plain language of both deeds.

If the true intent of the conveyance document was to split the original lot in half then it would have been stated as so. I don't think that a person's gut feeling or person opinion is a valid defense in court nor is what should be placed upon the public as something they depend on.

Since everyone on here loves to use metaphors I have one for you. Say you have a heart condition which your general doctor discovers. There is a surgery for your condition but it is difficult and requires years of experience and knowledge. Do you allow your general doctor to do the surgery based upon the fact that he read it in a medical journal or book and feels he could definitely do what a heart specialist can do or do you go to a specialist? Case in point, although we are professionals do we try to take on every case (surgery) that comes along or do we pass the projects which are beyond our own knowledge and scope to the specialists (i.e. boundary, construction, title resolution).

I myself would find the advice and guidance of a specialist to be the best way to go. Would I ask to sit in and watch? Of course. Would I feel that after one review of the procedure I could then do every type of survey (surgery) that is available risking my own license and liability? Hell no.

Lastly, my question for all which wish to answer, as someone who is learning to become licensed, I need to ask, why is the basic ideology of most on this forum to believe that there is never an error committed by our past brother's of the surveying profession? I myself think that everyone makes mistakes, albeit, I don't think that they are malicious, and that we all learn from each others shortfalls and problems.

Just because there is a gap or overlap in a deed does not make it the worst thing in the world. We have the ability to fix these problems with the assistance of fellow professionals.

As I stated in Post 25:
My main point of contention is the position from the Cert. of Correction? thread post #35 that :
"The example provided there is no conflict, each person was granted 50’ and each received 50’. No conflict. Grant deeds fall under contract law, the contract was fulfilled."

My cites were to the point that there is no basis in any of our Authoritative references that the proposition that the discrepancy could only be resolved in favor of the Grantor is a valid one.

Wattles was exceptional in that he gave the three possible solutions, and the sage advice "be careful how you handle it."

What the prudent surveyor does in that situation is a separate question.

I hope that better explains my position and the reason for the various cites.

"....why is the basic ideology of most on this forum to believe that there is never an error committed by our past brother's of the surveying profession?"

I don't have an answer and another thing. I don't believe that most on this forum believe that there is never an error committed by other surveyors past.

Not positively sure, but I don't think I have received that impression from my readings of the posts and threads.

Still only 4 bullets left cause I didn't really give a shot at the answer.

Bryan,

It's often not a matter of whether the past surveyor made a mistake or not, but whether a following surveyor has the authority to correct that mistake.

Generally speaking, a retracing surveyor does not have such authority unless granted it by the affected landowners, and if done so usually through some prescribed administrative or legal means. At that point, the surveyor steps out of the retracement surveyor role and into a role either as a consultant guiding or leading the client through the administrative process, or in support of the legal professional who leads the client through an appropriate legal remedy.

Once the title issues are resolved, the surveyor, in his efforts to correct or otherwise alter the results of a previous survey, steps into the role of an original surveyor establishing the new line on the ground.


I've been working on a well researched reply to this thread, but Tom has already hit on much of what I have found.



Dave,
I still believe that you are categorizing to many situations into the group of a true gap in title, and sidestepping the surveyor's role in research to jump into title issues.

Without going back to look, I believe that you made the point of staying within the 4 corners of the legal document (deed) describing the property. Well, if it is described as "The East 50 feet of that parcel described in Doc. No. XXXXXXXX", then the description contained in Doc. XXXXXXXX is fully a part of the description of the subject property as if it were reprinted on the face of that deed.

so the surveyor needs to look at the parent parcel. If it reads that it is a 100' x 100' parcel, but you are informed that it has had another parcel taken out prior to the subject parcel, you need to consider the effect of that conveyance.

Stay with me and stay within the record, nothing extrinsic at this point. In your research, you find that the other parcel is senior to the subject parcel and that it was "The West 50 feet of that parcel described in Doc. No. XXXXXXXX".

By record, by "the four corners", the parent parcel, the description for which is fully incorporated by reference, has all but the West 50', or according to record, only the East 50' remaining to it. The subject parcel is the East 50'.

By clear intent by a plain, common usage interpretation of the words within the "four corners", there can be no remainder parcel, sliver, gore, gap, or overlap. There are only two parcels.

Once you've determined that there is only one line, then extrinsic evidence may show you that one or both parcels are more or less than 50.00' wide. The exercise is then one of locating the one line.

That is but one example. I readily concede, and have never stated otherwise, that the record may not be so clear as to whether there is a real or possible gap in title, but the above example is one where there is not, and is an example of where the surveyor has both the authority and duty to discover that fact.

Besneatte v. Gourdin (1993) 16 Cal.App.4th 1277 , 21 Cal.Rptr.2d 82 mentions the strips and gores doctrine but gives no further reference. This is a right-of-way abandonment case.

"Citing the state policy against the creation of strips and gores, the trial court concluded the Whiting Company did not intend to reserve the fee title to the alley."

I'm still looking.

Edit-it does give a reference, another street case.

+1 for Evan's response to Bryan.