California Surveyors Forums

Original owner owns three lots (A, B, C) in modern subdivision map.

Original owner conveys Lot A and a portion of Lot B by perimeter metes and bounds legal description to current owner. At end of M & B courses, the description states "being Lot A and a portion of Lot B of such and such a map".

This subdivision by deed precedes any State or local Parcel Map requirements, so that is not an issue.

Does the current owner own two legal lots (Lot A and the portion of Lot B)? The logic being that Lot A is still a legal lot per the subdivision map, therefore the portion of Lot B must be as well by default.

I think not, since the original owner, by conveying out Lot A and a Portion of Lot B in a single M & B legal description, intended to convey a single parcel of land. They effectively merged and re-subdivided their three original lots by this action. Had they intended to convey two parcels of land, they should have described them as such.

I am looking for something to substantiate this theory, and can't find much.

What say you?

Well........

See attached.

A read of Brown v Tehama in regards to fractional lot remnants might help. See attached:

Thanks folks,

A quick read of Brown v Tehama appears to support the premise that Civil Code 1093 does not apply to fractional portions of lots never before described separately. Unless I am misreading, of course.

To be continued...

From the headnotes of the case:
"Civil Code, § 1093, concerns only those situations where one party is conveying entire preexisting parcels in a consolidated description and does not apply to situations where portions of preexisting parcels, never before described separately, are being conveyed. Undeniably, by its plain terms, Civil Code, § 1093, applies only when two or more separate and distinct legal descriptions of real property contained in one or more previous instruments of conveyance or security documents are later consolidated in a subsequent instrument of conveyance or security document, either by an individual listing of the legal descriptions or a consolidated legal description comprised of more than one previously separate and distinct legal description"
and
"In the construction of boundaries, the intention of the parties is the controlling consideration. Whenever possible, a court should place itself in the position of the parties and ascertain their intent, as in the case of any contract. Intention, whether express or shown by surrounding circumstances, is all controlling."
And directly from the opinion:
"Here, no party points to any evidence of surrounding circumstances that would assist in divining the intent of the parties to the various transactions at issue, including the 1904 deed from Garrett and Tinkham to Charles Hesse. As for the deed itself, there is nothing in it suggesting Garrett and Tinkham intended to convey two new fractional parcels to Charles Hesse, as opposed to a single new parcel. The deed contains a single metes and bounds description of what by all appearances is one tract of land. As the People point out, the deed does not make "any reference to the old patent parcel boundary that ... divide[d] the original holdings of Tinkham and Garrett in section 10." Furthermore, the deed specifies that what is being conveyed is "all that certain lot and parcel of land" which the deed then goes on to describe. (Italics added.) Before it was filled out, that part of the preprinted deed looked like this: "all th___ certain lot__ and parcel__ of land." Had Garrett and Tinkham intended to convey two parcels instead of one, they could have filled out the deed to convey "all those certain lots and parcels of land" thereafter de-scribed, but they did not do so. Instead, they filled the blank after the "th" with "at" to create the word "that" and put small lines through the blanks after "lot" and "parcel" showing that they intended to use the singular of those words, rather than the plural. "

I am with you. I sent that in the hopes you could look into it. I am moving very fast today and had a few seconds. Good luck.

Much appreciated folks,

I was going by gut instinct on this one, but couldn't think of a case or law addressing this specific issue. Brown v Tehama seems quite apt.

Cheers