Colony street accepted by Public agency

[goodgps]

I have a portion of an old lot "the north 100 feet of the east 150 feet of lot 2 of Olden Colony 1920.
Deed written and transfered from father to son 1947.

The notes on the map state that all avenues are "rejected"

Father and [No 1 son] measure 150 feet from the west r-o-w line of avenue A (a 40-foot wide road) and 100 feet from the north line of Lot 2. They plant rr ties and build a fence. shop out buildings etc.

Father sells the remainder of lot 2 circa 1960.

2006 the new owners heirs have the remainder of lot 2 surveyed, and surveyor pulls 150 from the centerline of avenue A and finds 20-foot encroachment.

HOWEVER ;
in 1937, the Public agency records an acceptance of avenue A as a public road.

THE QUESTION:
in 1947, would the Father have had the right to sell to No 1 Son, any portion of the accepted avenue A. IF not, would the layout that Father did be correct ?
If Father did have the right to sell No1 Son part of the road, how did he acquire that right ?

[E_Page]

Was Avenue A a platted street of the Olden Colony? If so, although the road may be considered a private road easement, the lot would have been commonly recognized as having it's edges at the RW.

The father and son laid out on the ground what their intentions were. As long as the father owned the land upon which the 100'x150' was laid out, the deed for the 100'x150' cannot be interpreted to describe any other configuration but what the original parties laid out and occupied.

That's pretty basic.

Your question seems to become irrelevant if the father and son laid out the parcel from the RW. It would seem that they recognized the existence of the road and did not consider it to be a portion of Lot 2 for purposes of this conveyance.

I sense red flags regarding the 2006 survey. How does that surveyor come by the logic to ignore the road in this case? Am I missing something?

[dmi]

Wow, Can I say wow again? Can I see a show of hands of surveyors that would think and do nothing about a 20' encroachment? Would you not ask yourself...."What in the I have messed up here?" Maybe, that's just me but I would want to make sure i have it right. In this case, the grantor/grantee laid out the subdivision as they saw fit and therefore not rules of construction can be applied here, but be that as it may the statment made by Good leaves me with the impression, that perhaps someone is unclear on the application of a "OF" description when a parent parcel description is by reference to lot and block......

[goodgps]

I have seen so many interpretations on "of" descriptions that it blows my mind.

In this case, the roads were platted but rejected on the original subdivision.

Then Prior to the father deeding the 100x150 parcel to son, the roads were accepted by the local agency.

My feeling is that the son owns pretty much to his fence enclosure.

SOmetimes when a surveyor enters the retracement of "of" descriptions, one owner or the other may get angry and a lawsuite begins.

In this particular case, the previous retracement surveyor did not discuss any interpretation options with his client.
He did, however, show the fence and buildings "over a line"
Also, he has stalled for three years on filing this ROS.

The monuments which were set, have been the basis for disagreement between current property owners . . . in essence, at least mental damage has been done.

I personally don't have the energy to get involved with more lawsuits or big diasgreements, I really am searching for some good legal logic as to [when streets are included or not]

In some cases, streets were rejected/ not constructed and can be occupied and enjoyed by an owner.

When streets cannot be enjoyed by an owner, it seems clear that the ROW line must come into play.

Dazed and confused

[dmi]

Good, I am accepting at face value what you have posted. My opinion would change given other evidence being presented. So far, I undetstand that there is a common grantor involved,owner of both sides of the line. There is evidence that the grantor/grantee marked out a line together or had a clear understanding at the time of conveyence as to the location of the line of the conveyence. The understanding was clear enough for them to occupy and maintain to their mutual understanding of the location of the line for a considerable period,in peace and harmony. Any location other than the one that honors the intent of the parties, is a fundemental disservice to the rights of the owners.

Offers of dedication and rejections of dedications REMAIN OPEN FOREVER.
It does not matter if the public is using the easement by putting a street in the right of way. The public sitll has rights. Now after a certain point in time, an action can be brought for summary vacation. Understand that I am speaking of only the public interest, private rights are a different matter. In this case there was no action to vacate the public right of way and in fact the local agency subsequently accepted the offer of dedication. Futher the adjoiner to the right of way subdivided their property in a manner that appears to recognize the existence of the local agency's right of way. My understanding of the current state of the law is that "of descriptions" where the parent parcel is described by reference to a map, that the further subdivisions are based upon the USABLE portion of the lot,the part outside the right of way. Apparently, this was understood by the grantor/grantee and they located according to that rule based upon the fact that improvements fit that location and not a location using the centerline.or someother reference line for example. But their understanding of any presumption that would be employed by a surveyor to find the true line of the subidivision, is of no a concern to the land owners. The owners may subdivide in any legally permissable manner they choose.The surveyor has the obligation to put the line where it was intended to be based upon the controlling evidence related to that subdivision.

I have spoken generally about dedication and rejected offers. There are very specific laws relating to dedication, vacation and rejected offers, time frames, notice requirements issues relating to private rights. These laws are easily looked up when more specificity is required.

[goodgps]

Thanks !

After much study, it appears that the courts presume the words of the legal description over the ancient intent. This is based upon the fallability of the human mind and the terminous state of humans in general.

In English, Grandma may simply not remember what the story was 60 years ago. The document which was written holds over some concieved intent.
(unless the contrary can indeed be proven)

The Lot, when created, was created and so stated as to its bounding corners PRIOR to its sale. Having a street frontage was a privilidge and property owners were more than happy to pay the minimal tax for the land they shared.

In My particular case, it appears quite clear what the father and son intended, however, they simply did not execute the deed properly.

If the intent were held, then title to the 20-feet frontage in the road still belongs to the father and his successors. Should the road be abandon to just a private easement, the Sons property could in essence be isolated
from that easement as he had no interest in the roadway. Yes his line is contiguous, but he never paid taxes on that road strip.

Although poorly written, "of" and "portion" documents are indeed quite clear.
When they cite "according to the map, the filing date and Book / page" the document begins and ends right there. Unless there is other verbage stating "as measured from the sideline of avenue A" etc. the document is clear.

In the court case from which Brown refers, The issue of inten was immediate. The seller intended to sell a usable 50-feet and knew it. The case is obscure and very isolated in example. After all who can really build on 25 feet with a 12 foot side yard set back and 5 foot setback on the other side. Put a travel trailer in the expensive neighborhood ?

What is the dimension of the east third of a 300-foot wide lot ?


Good

[dmi]

why are you making this more complex that it really is.....

In Ca the presumption is that lots fronting on street, the half-width of the street is part of the conveyence So when the father bought the lot he acquired interest in the fee underlying the street r-o-w(rejection or not). When he sold the portion to his son, also conveyed was the interest in the half-width of the street. The street is not specificly excluded in the description you posted. One has to be careful in reading Brown because he cites 2 different cases right next to each other, one has to do with lot and block and the other is metes and bounds and thes 2 cases are handled differently. Anyway that is the way I understand it at present...

[Ben Lund]

I agree with Dane and Danner. Chapter 9 of Wattles sheds some light on this issue. The 150' should be measured from the ROW (whether the street was accepted or not). The owner of the deed in question (North 100' of East 150' of Lot 2) also owns to the centerline of the street.

The 2006 surveyor should have measured from the right of way NOT the centerline.

[goodgps]

Ben thanks,

It seems like you've said two different things.

Dane and Danner seem to present that the ownership was to the lot line (in the center of the street) and therefor the measurement should've been from the center OR the deed that Father gave to son, should've so state "as measured from the right-of-way of Avenue A, a 40-foot wide road"

I also agree (and have so fo a long time) about being careful of Curtis Brown.
Curtis carefully writes and quotes about specific cases, SOMETIMES they are the "contrary" which was show.

In the late 70's Mr Brown took the witness stand on a case in Stockton, and gave a confident testimony based upon his very own text book example. The party to which Mr. Brown was working with LOST the case.
indeed, the contrary was shown.

A far better fruit we yield when living in the "norm" rather than the contrary.

To better illustrate the the "normal" ruling of the courts, ie Holding the written word of the deed over the presumptuous testimony of Even the land owners themselves, I present this :

I was asked to review a Lady and her neighbors deeds. The lady, being the original owner and seller of property to her neighbor, was certain that the neighbor was occupying too much.
The assessment plat indicated this Lady has a 1.5 acre parcel and her neighbor, a 18.5 acre parcel.

The Lady was certain that 20 years ago, she and her late husband had only sold 13.5 acres and retained 6.5 acres. [basically her testimony of intent]

I asked If she had signed the deed of transfer to the neighbor, indeed she had.
In Black and white, were the two deeds 1, grant deed to the neighbor, the other a reconveyance to themselves, CLEARLY indicating 18.5 acres and 1.5 acres.

It seems this land is slated to be annexed and Now, the owner is rethinking the deal AND her intent. \\

If I intend to buy the orange, but actually bought the Apple, Is the orange now mine because of intent ?

The parcel is defined from the lot lines as shown on the old tract map. Than line as defined will never move.

time to peel my contrary apple.

[Ben Lund]

Good,
I can see where my post is confusing. A similar situation was discussed on one of your previous posts: http://www.californiasurveyors.org/clsa ... ht=Wattles

I believe Dane, Danner, and I are trying to say that the 100’x150’ parcel ALSO includes that portion of the street that the land fronts (up to centerline). That the deed language SHOULD be interpreted to mean “as measured from the right-of-way of Avenue A (or east line of Lot 2 as shown on the map), a 40-foot wide road.”

When the deed reads, “the north 100 feet of the east 150 feet of Lot 2” these dimensions are measured from the lot lines as shown on the map regardless of whether there is a neighboring street (whether owned in fee by the agency or a public easement).

Lot 2 is established and defined as shown on the map. When the adjacent street is a public easement, the norm is the owner of Lot 2 “owns” that portion of the street fronting Lot 2 up to the centerline of the street.

This “ownership”, however, does not define “Lot 2”, the map does this.

Because the “of” description describes land bounded on the east by Lot 2 which is coincident with Avenue A (assumed to be a public easement), the owner of the described land also “owns” the street fronting his land up to the centerline.

It doesn’t matter whether the street was “accepted” or later vacated, the land described is measured from the easterly line of Lot 2 as shown on the map (not the centerline of the street).

[dmi]

The transfer from father to son is measured from the ROW,because of the stated evidence in the post that was their intention. It also happens to be the current state of the law,as far as I know,
that the presumption is with respects to parts of lots,the measurements are from the usable portion of the lot. The description could have been written in a fashion to overcome the presumption, but it was not.The part of the lot not in the right of way, is the usable portion,BTW.

They could have included language to the effect that they were measuring for the ROW, but is not needed. Could this language be misconstrued to mean the the portion of the lot in the right of way is excluded?

[goodgps]

Yes, thankyou,

Please make no mistake, It pains me to know in my heart of hearts that the Father and Son made a transfer and laid out the parcel exactly the way that each of them wanted.

The unfortunate part, is that the surveyor previous to me, pulled from the centerline, ignored any possible evidence, did NOT meet with both neighbors to discuss the options, Slammed his pipe in the ground. . . . FORGOT to file map. Caused upheaval in the "hood" and has this poor broke Widdow lady (who is the only survivor) in a fit of trembling.

She has no money for an attorney and the neighbors wont speak, they just want what they think should come to them.

These "of" descriptions are indeed difficult and I believe all options should be discussed prior to filing a map.

Was this fenceline simply placed in error ? in some cases this is exactly the case and there is NO intent contrary to the verbage of the record deed.

In this case, the intent is quite clear, BUT ONLY by the absolute testimony of the surviving owner. Otherwise, there could simply be a wrongly placed fence.

I really appreciate all the feed back Since every land case is different, it is very good for us to be dexterous.

I think it is even good for the profession ? no ?

"good"

[7702]

"The unfortunate part, is that the surveyor previous to me, pulled from the centerline, ignored any possible evidence, did NOT meet with both neighbors to discuss the options, Slammed his pipe in the ground. . . . FORGOT to file map. Caused upheaval in the "hood" and has this poor broke Widdow lady (who is the only survivor) in a fit of trembling."

Good,

I know you don't like pointing fingers at other surveyors, but don't you think that this surveyor should be held accountable for his actions? This questionable work was done only three years ago. In the best interest of our profession, I think someone should contact the LS and give him/her an opportunity to file a map or make other necessary corrections.

[7702]

Good,

In reviewing this thread, it's not clear to me whether the 2006 surveyor filed an ROS or not. In post #4, you mention that he showed the fence and building over a line, but has stalled for three years on filing the ROS.

[E_Page]

If you have evidence that the lot was originally laid out by the original grantor and grantee, and that they erected the fence on the lines they established, then those lines are not in error. The conveyance was for 100' x 150' as measured from the right of way.

But, as previously pointed out, th prsumption in CA is that unless specifically excluded, the title to th adjoining road to the centerline passes with the land described along its frontage.

Therefore, the net effect is that the actual land conveyed is 20' more than the dimension stated in the deed so as to include the underlying fee of the road. So if this a corner lot, the true dimensions of what was conveyed are 120' x 170'.

The conveyance DOES NOT NEED TO INCLUDE LANGUAGE SPECIFICALLY INCLUDING THE ROAD for it to be included. (not yelling here, just making a point).

You must correctly identify the boundary regardless of what the 2006 surveyor did and regardless of the effect your survey will have on the decisions of the neighbors (will they accept your survey or decide to fight it? That is a decision you have no control over, so don't try).

You cannot acquiesce to the 2006 survey because you want to save the poor old gal from facing a fight she is not equipped to enter into. You don't know that there may be a distant neice or nephew who is an attorney who may decide to do this pro bono to protect poor old aunt Myrdle from being cheated out of her land by a nasty neighbor and an incompetent or unscrupulous surveyor helping the neighbor do it (talking about the 2006 guy, not you, Good). Again, these considerations are not available to you when idntifying the boundary.

You seem to minimize the value of th testimony of the surviving owner. Is she the widow of either the father or the son? If so, she has direct knowledge of what her spouse did and what the intent was. That's pretty darn good evidence. Does the location of the fence support what she told you? If so, that makes it even stronger.

You cannot measure 100' x 150' from CL if you know the intent of the original parties was otherwise and you know that they acted according to the intent you have already positively identified.

The underlying ownership of the road DOES NOT rest with the father or his successor's in title. As previously stated, that title automatically passes with the title of the land adjoining its RW unless it has been expressly excluded. That is the rebuttable presumption.

As you have pointed out, it is also a rebuttable presumption that unless the writings indicate otherwise, the measurements are from centerline, but you seem to want to ignore that you have evidence which succesfully rebuts that presumption.

Unless you have other info that you haven't shared, the correct answer seems rather obvious. But you seem to have some reason why you are reluctant to accept it, and that reluctance does not seem to be based upon the legal or technical principles of boundary retracement.

[Ben Lund]

Great post Evan! The only thing I disagree with is that the presumption is the distance is measured from the usable lot line (not the centerline of the street).

[E_Page]

Ben,

Depends on how the lots were originally mapped. Sometimes the map will clearly show the lot to CL, sometimes it will show only to RW. That will determine the presumption of where the measurements go from or to.

[Ben Lund]

Evan, thanks for the clarification and I concur!

[goodgps]

Evan,
Thanks for all the great thoughts .

to answer a couple of questions. 1. no family member has any money to help Aunt Myrtle.
2. Aunt Mytrle is the widdow of the Son, So I definately believe her. She is very sharp.
3. The olde tyme colony map clearly shows the lot lines to be in the centerline of the road. The road was originally rejected in 1920 (time of map filing) But later accepted in 1937. the Father/ son deed was layed out and recorded circa 1947.

I have directed Aunt Myrtle's children to seek an institution which helps the elderly. I wish them good Luck.

4. I have indeed contacted the 2006 surveyor. The reason I know about a preliminary plat is by recieving one from a friend who just happen to know it existed. (friend not involved)
[Shock to DWolley] . . . I actually have a friend !!!

If I won a big Lotto, I'd jump right on this one, file a survey with lots of notes and testimony (oaths) have meetings with the neighbors and do all the really cool stuff that We surveyors can (and should) do.

Unfortunately, if a lawsuit did erupt from this, and I was named in the suit, my company would cease, due to lack of defensible finances. It costs a great deal to defend ones self even if the survey is totally correct.

In this economy, insurance coverage is down to a minimum.

Thanks for all of the encouragement and the CCP quote.

"good" and weary :-(