Conflicting Deed Calls

7702 · Post by **7702** » Mon Jun 08, 2009 10:23 pm

I have a situation where the legal description calls to a monument for the starting point and then calls along a fence to another monument. What I believe to be the original fence is fairly straight in the middle, but curves considerably in the vicinity of the two monuments, so the two monuments are actually several feet away from the fence. To complicate matters slightly, the adjoining deed doesn't refer to a fence at all.

Any thoughts on how this should be handled?

Thanks

pls7809 · Post by **pls7809** » Tue Jun 09, 2009 6:38 am

My thoughts are, if both deeds are a portion of the same parent parcel, that you need to research back to find which parcel was broken out first. Senior/Junior rights will probably control in this case, without additional evidence. Are the monuments called for in the adjoiner's deed, or is there an RS or Private Survey that accepts the monuments as the corners? Have the monuments been relied on as corners by any of the parties? Or has the fence been the monument relied on by the adjoining parties?

Ryan.

7702 · Post by **7702** » Tue Jun 09, 2009 6:52 am

The monuments are called for in both deeds, and were set at the time the subject parcel was created. A ROS was also prepared at the time, which shows the fence as being on the line between the monuments. It is only partially on the line between the monuments. The monuments lie on the outside of the curve of the fence, in the vicinity of what would be an approximate P.I. for the curves of the fence. I'm not sure anybody has relied on the monuments over the years, as they are not easily found. I think the intent was to follow the fence as the new boundary. However, sloppy survey work has unnecessarily complicated matters.

The trick is to figure out just where the property lines intersect the fence. It would make more sense if I had posted a drawing.

E_Page · Post by **E_Page** » Tue Jun 09, 2009 8:03 am

If the RS was filed and monuments set at the time the parcels were created, then the survey reflects the intent. I would hold the monuments.

The call to the fence likely appeared when a grantor or the one parcel made the statement that the line was at or near the fence.

IMO, you would need to find evidence of clear intent to have used the fence, contrary to any monuments set, to define the original boundaries in order to call it the boundary now. Current occupation, by itself does not rise to that level (it may still be just a fence of convenience).

7702 · Post by **7702** » Tue Jun 09, 2009 8:17 am

The parcel was configured as part of a three-way property line adjustment that was done over 20 years ago. I think the fence in question was there at the time and suspect that the neighbor who granted that portion did so with the belief that the existing fence was to be the boundary. Of course, none of the parties to the original agreement are around anymore.

E_Page · Post by **E_Page** » Tue Jun 09, 2009 10:09 am

Was the fence called to in the deeds used to execute the LLA? If not, I would be very hesitant to do so now.

However, if that's what your client and the adjoiner want, you could offer your services to write the descriptions accordingly and assist them with an LLA that accomplishes that.

D Ryan · Post by **D Ryan** » Tue Jun 09, 2009 10:15 am

If you have 2 adjoining deeds with calls to monuments, it doesn't get much better. If you feel the monuments are those called for in the deed, and they disagree with the fence, then you have what's called in the legal description world a "multiple incompatibility". Something's got to give. I'd view the fence line call as informative, and treat the monument calls as controlling.

7702 · Post by **7702** » Tue Jun 09, 2009 10:19 am

Thanks for your responses.

I'll check the original deeds and see if the fence is mentioned. Problem with holding the monuments is one of them falls a couple feet out into the travel way of a driveway, which doesn't make much sense to me. I guess it's possible the driveway location and/or width has changed since the property lines were reconfigured.

7702 · Post by **7702** » Tue Jun 09, 2009 8:24 pm

Dave,

I was typing when you posted. For some reason, it was my understanding that existing fences, as called for in deeds, are also considered monuments (artificial?) and carry as much weight, if not more, than monuments set by surveyors.

Sounds like maybe I need to rethink things a bit.

E_Page · Post by **E_Page** » Wed Jun 10, 2009 6:16 am

Fences called in deeds are monuments. However, you appear to have calls to monuments which conflict with each other rather than agree, so you need to learn just how the calls got into the writings, which is superior, and whether the currently existent monuments and fence are the same as existed at the time the parcels were created.

My guess is that the fence call entered into the chain of one of the parcels at some point after the parcels were actually created, that the call is probably not based on certain knowledge that the fence was actually on the established PL, and that under the circumstances, it would be considered informational, as Dave said.