Senior Lot description changed down the road

[sako]

The lot I'm surveying is junior to the northerly lot. I have chain of title to both properties. The first deed of senior lot is from 1948, describes in metes & bounds a lot of 150' by 75'( in N-S direction) and at the end it's mentioned " being the W 1/2 of Lot 2.
In 1957 the deed has an exception (the junior lot) which is described in M&B " beginning at a point on the southeasterly line of X st. , distant thereon 100' from the intersection of said line with southerly line of Y st., thence south 50' to the dividing line between lot 2 and 3, thence along said dividing line 75', thence northeasterly 50', thence parallel with dividing line 75' to POB", this is the exact description of the lot I'm surveying.
In 1979, all of sudden the deed changes to following: W. 1/2 of Lot 2, excepting the S. 50' "
I survey the block and find excess of almost 3.5' in length of block, an excess of 1.16' in lot 2, the question is who gets the excess, the junior or senior.
How can a surveyor find out the intent if the deed description changes down the road. I believe the junior gets the 1.16' since both, the original deed of senior lot and as well as junior lot agree that the senior has only the first 100' of the W. 1/2 of lot 2, nothing more or less. See attached.
What is your opinion?

[E_Page]

The 150'x75' parcel is not the senior parcel to the parcel your surveying, it's the parent parcel. At or before the time that the exception appeared (1957), the southerly 50' was conveyed out of the 150x75. As the remainder, 100x50, is junior to the 50x75.

All being nice round numbers (whole feet), and general directions, I suspect that the descriptions are based on record lot dimensions rather than surveys performed to measure precisely 75.00 or 50.00.

On your sketch, you show the easterly fence being on or very close to your calculated boundary location, so no issues there. The southerly fence of the 50x75 shows as being more or less on line part of the way and then veering off a bit for part. The fence between the 50x75 and the 100x75 shows as being straight and parallel with your calculated location of the dividing line (S 2.4').

Can you tell me why the southerly fence is varying from a straight line? Was it built that way or is the easterly portion in really poor shape or appear to have been rebuilt? What do you know about the fence between the 50' and 100' portions beyond the location? Do you know who built it? When? What the landowners believed about the fence prior to your survey? Is it the original material and location for that fence? Was the fence placed before, after, or about the time the 50' parcel was cut from the 150'.

Whenever I see round numbers that are record dimensions from an old subdivision (I presume that the record width of Lot 2 was 150') but can find no survey records by which the division measurement was made, I always suspect that the landowners decided on some portion and then measured it off themselves. If that is actually the case, then occupation, particularly any placed about the time the parcel was divided, is the best evidence of the measurements they made.

I would certainly look for physical evidence of a survey having been performed to mark the line. It's possible that there was a survey done but no map filed, or even that a map was filed but not properly indexed as to location in the CS index.

If there is no evidence of any survey activity to have marked out the dividing line prior to the fence existing, I would want stronger evidence than just my measurement before I declared the existing boundary to be somewhere other than what is apparent in the field.

Our role in locating existing boundaries is not to place the line at the location it should have been, but to find the location where it was originally established on the ground. If it was established by survey prior to any occupation, then that's the original location. If it was not established by survey prior to occupation improvements, then the improvements may indicate the establishment of that line by the landowners. If the fence was erected with the intent of it being on the dividing line with the participation or consent of both landowners, then it simply means that their measurement of 50' (or 100', depending upon which direction they came from) was not made very skilfully. It is not our job or within our authority to correct the faulty measurements made to establish boundaries, only to locate the boundary as it is and report the discrepancies from record.

This is not based on Agreed Boundary Doctrine or on prescriptive rights (AP). This is establishment doctrine.

You found an overall excess of over 1' in Lot 2 and 3.5' in the block. I assume that's based on survey monumentation. When we find original survey monuments with excess or deficiencies like this, we accept it and account for it in our boundary solution. Yet we're conditioned to not consider that landowners themselves might have taken it upon themselves to make measurements and establish boundaries. If we find monuments that are several feet off from the record dimension from each other but we can identify them as originals (or verifiable perpetuation of original positions), we take it in stride and accept the difference between record and measured. But if we find a boundary established by landowners, who were probably not trained to measure carefully, we (or many of us) automatically categorize that boundary establishment as an encroachment, or at best, an example of a boundary line agreement, and then we get snarled in the required elements of the Agreed Boundary Doctrine.

Practical Location (establishment by landowners) has similarities to ABD but is about the effort to place the boundary on the ground for the first time, where ABD is about resolving the confusion or dispute as to where a previously established boundary was established.

Anyway, back to your example, tell us more about the fences and your efforts to find evidence that the dividing line had ever been surveyed.

[dedkad]

I hadn't thought about Evan's logic on swapping the junior and senior lots because I assumed that there was another deed between 1948 and 1957 that created the exception. If that is not the case, then Evan made a good catch. Regardless, I think considering the history of the fence and any other improvements on this lot should weigh into your decision before you create turmoil where none currently exists.

[sako]

Evan, thanks for your detailed opinion and clarifying the senior- junior situation. The fences don't seem to be from 1957. I intend to meet with both property owners who own their properties since 90's. Meeting with original owner is impossible.

[E_Page]

When you meet with them, I suggest that you take a worksheet that does not include the calculated dividing line or dimensions and don't give them any verbal indication of a possible discrepancy. That way, you will be more likely to get honest opinions that aren't affected by "which line works best for me".

If you give any indication of the potential discrepancy, the landowner to the South is more likely to say that he always thought that fence wasn't in the right place, and the landowner to the North more likely to recall that he always thought the fence was the line, his previous neighbor thought the same, and come to think of it, the people who owned this place before said the fence was the property line when they sold the place to us.

Just tell them that since you weren't able to find any survey records filed at the county for the dividing line, that you need to get some info from them regarding what they might know. Don't simply focus on the fence, but also ask them about knowledge of any surveys they or previous owners might have had done, have they seen any irons or stakes near their common line, did the previous owners tell them anything about the line or the corners, etc. Ask about several different types of possible evidence and let them key in on anything specific based on what they knew before you started your work.

[Olin Edmundson]

I would question the configuration of the original parent parcel that you have set up. 1.16 feet is a significant amount to have prorated across 150' and what monuments is this based on? Are they original? I see a street to the North, are you using a point in the block Northerly of yours? If so, this method would fall outside of the general principle of keeping any error contained within the block where you are working. The fence problem is excaxerbated by this proration. The fence on the southerly side of the southerly lot is pretty good. If you were to give this lot record frontage coming up from the SW corner you have set up, the fence on the dividing line would only be a little more than a foot off rather than the 2.4 you currently have. Evan appears to be correct that the Southerly lot is senior and thus should be getting its full 50' with or without the proration.

Great comments Evan!

[sako]

Evan, to answer your question,"Can you tell me why the southerly fence is varying from a straight line?"
If you see attached updated drawing there is a dead tree which is right on the dividing line between lot 2 and 3.
I talked to the prior owner of the property to south. She sold it to my client but still resides there. She pointed out to the couple of fence posts remaining from the old fence and told me the fence would end at the front left corner of the old garage. The owner of the property to north didn't want to repair the old one, instead a new one was built adjacent to and northerly of the old one in 1994. The short fence from back of walk to the beginning of old fence was built by the owner to south last year. I noticed the relatively newer garages on the property to north, checked the city permit documents and found out those garages were built 94/95 together with the new ac driveway. Apparently, there was an old garage facing the street right in the middle of where now the driveway exist. There was no survey plat nor any dimensions from old garage to the dividing line. The plans are work of a landscape architect.

[E_Page]

If you have any way to do so, see if you can find out any more about the old fence. Also the size of the garage. The law exempts surveys made for landscape purposes from the licensing act, so presumes that landscape architects may be able to measure somewhat accurately. Perhaps you can find out if the LA prepared his/her plan from field measurements and if so, what did they use as a baseline and how did they make the measurements (to give you an idea of the level of accuracy you can assume and whether there is some existing physical feature you can relate it to get a reasonable placement of the old garage that used to be on the n'ly parcel).

You should try to learn what the basis was for placement of the edge of new driveway. You should also try to find out if the old fence ever extended to the sidewalk, and if so, whether anyone can show you the location with reasonable accuracy.

If the now gone old garage's placement was such that your calculated dividing line would fall just about midway between them, I would consider that evidence in support of the calculated line - but not necessarily the most convincing evidence. As the investigator on the ground, you need to weigh it all as to which seems most convincing as indicating the location of the originally established line.

You may not be able to find out any more than you already have, in which case, it might be that none of what you have clearly points to the original location. You have physical evidence, but at least half of it is recent and you know very little about the history of the older improvements. But all that occupation evidence tends to point to the current line of occupation. As occupation evidence goes, based on what you presently know, I wouldn't consider it particularly strong.

On the other hand, you have your calculations, based on field measurements between more distant points (presumably of higher reliability) and record distances indicating a different location. Many, if not most surveyors would probably consider that stronger simply because they have a better understanding of the measurements and math involved. But courts have told us over and over again, and are pretty consistent on the point, that measurements are the least reliable of evidence of boundary locations. So whichever way you go with it, you may not have any strong evidence to support your conclusion.

If you end up stuck in that spot, you might then consider meeting with the landowners and explaining that there isn't particularly strong evidence indicating the original location, although most of the physical evidence, generally considered stronger (see Code of Civil Procedure §2077) tends to point to the current location but distances, generally but not always considered weaker evidence (depends on how well physical evidence can be tied to or presumed to be based on original boundaries), and not much else pointing to another location. Litigation over matters like this tends to be very contentious and very expensive, usually far more than the actual value of the disputed property. You can help them accomplish a LLA, the cost of which would be a very small fraction of what just one party to litigation typically spends.

Either way, you will need to , or should make a determination as to which pieces of evidence you believe is stronger and if the parties don't decide in fairly short order to proceed with a LLA, show your conclusions on a RS. However this concludes, make sure that you've thought it through very thoroughly and include a narrative or plenty of notations on your drawing to explain what you found and the reasoning behind your conclusions.

[sako]

Evan, what about the fact which Mr. Edmundson pointed out , the southerly property should get at least 50' ? based on this fact the existing fence near dividing line is encroaching by 1.24'.

[E_Page]

The principle that the senior parcel gets the full measure of what's described by dimension is the example used in text books to demonstrate the basic principle. It remains unconfused with additional facts like physical evidence which might indicate the originally established location, or that whoever created the description didn't measure carefully.

The 50' does not appear in the description as "50' as a competent surveyor would measure it with modern equipment 60 years after this description is written". It appears simply as 50', and that means the 50' measurement made in preparation of the description, or if one was not made at that time but the parcels have long since been developed and a line established, the 50' measured and accepted as made or caused to be made by the landowners who first established their common line.

If you were dealing with parcels that had no improvements in the vicinity of the common line and no other indication to indicate a previously established and accepted position, then the basic principle applies without question.

In actual practice, we don't get many situations where the circumstances are so clean that various principles do not compete. In most instances, we find physical evidence that doesn't match the record dimensions perfectly. Sometimes the discrepancies are well more than a little. We often find situations where there is conflicting physical info pointing to two or more possible locations. We quite often will find record info that varies from other records either in the quantity of distances and directions, actual ground locations, or both.

In short, more often than not, we have more than one basic principle to consider and have to weigh the evidence to determine which is better supported by the evidence.

Basic principles are guidelines, and are often predicated on a lack of superior evidence to the contrary. They are guidelines and not absolute, rigid rules. If the all or most of the principles we've learned throughout our careers were rigid rules that must always be followed, then there would be no need for professional registration. We would be tested to ensure that we were proficient at using the tools to make measurements and then be issued a technical/vocational certification that attests that we've demonstrated that we know how to use the tools properly.

Rules would have been made for most every situation where basic principles might seem to compete, and overly complicated rules been made more simple to be applied as a one-size-fits-all rule that is always applied in the same manner whenever certain criteria are present, regardless of whether it preserves or changes the locations of established boundaries people have relied upon and to which property rights have attached.

As professionals, were aren't charged with following a set of clearcut rules. Instead, we are to exercise professional judgment informed by established principles to be used as guidelines for reasonable decision-making as we assess real-life situations that include conflicting information calling for the application of different and often competing principles. The measure of whether one has met the Standard of Care is not whether the correct conclusion was reached, but whether the professional's conclusion was well-reasoned.

Edit:
Part of the basic principle Olin described is that with sequential conveyances, proration is not applied. since the resulting portions of the parent parcel were not created at the same time, there is no basis to assume that any excess or deficiency across the parent parcel would have occurred systematically among the cut out parcel and the remainder.

The principle assumes first that you determined an excess or deficiency by appropriate use of relevant evidence, which is another point Olin made. How are you determining the excess in the block and how are you apportioning some of it to Lot 2? Are you working from original monuments or reliable perpetuations of original monument locations? Are any of those monuments in adjacent blocks, and if so, how far away and how did you apportion the excess through that block and the intervening street(s). Generally, it's better to use evidence from completely within the block, even when it otherwise seems like an inferior form of evidence, than it is to introduce error into the block you're working in when the error found might well have actually been fully contained in the adjacent block.

These ideas come from the field methods often used to originally layout blocks and lots and how those errors, when verifiable, would most often manifest. If these blocks and lots were laid out with transit & tape or compass & chain, as I suspect was the case, then the principle of keeping the errors of each block within each block is applicable and should be followed unless there is a near total lack of reliable evidence within the block where you're surveying.

[sako]

Evan and Olin, thanks again for your valuable opinion.
On the northerly side of the block, 10' south of Cl, I found 1/4" B.P. in mon. box at the northwesterly and 2.5" B.D in mon. at the northeasterly of the block. Both monuments have been used and accepted in multiple recorded maps as well as ROS for widening of street.
On the southerly side I didn't find any monuments, but split the improvements on all 4 streets verified location of those 2 monuments as well as excess of 3.48' on the west and east side of the block. The excess on the east is shown on 5 different recorded maps from 1952 to 2013.
I also went over the block to check monuments shown on recorded maps a block away to north, east and south. Their location was confirmed.

[E_Page]

Sounds like good block control.

[Olin Edmundson]

The problem with street monuments is that in most cases I've seen you have no idea how they even got there. No record to confirm that they are indeed perpetuations of original monuments. It sounds like you have done an extensive amount of work. As a general comment, I would add that if you have a pattern of occupation and/or old street improvements and/or found monumentation (of record or not) that are in general conformance with each other and the original subdivision but at variance with street monuments I'd think long and hard about using these street monuments no matter how many recorded maps they may be shown on.

[sako]

Evan, the LA's site plan is just a sketch, without any dimensions from old garage to property lines. The site plan shows an overall dimension of 100' X 75'.
I need to talk to the current owner of the property to north to hear his side of the story. Without any creditable evidence I would say the parent property gets only 100' by 75'.

[E_Page]

You mean the cut out property gets 50 x 75 and the remainder of the parent parcel gets whatever is left, including any excess or deficiency, right?

[sako]

You mean the cut out property gets 50 x 75 and the remainder of the parent parcel gets whatever is left, including any excess or deficiency, right?

Why should the cutout property get only 50' when both the original deed of parent property and the cutout property mention that the cutout property starts 100' southerly from the intersection? The deed clearly say the cutout property starts 100' from the intersection and goes (50') to the dividing line between lots 2 and 3. In your argument you used this as prove that the cutout property becomes senior to parent property.

[Olin Edmundson]

You're still confused about seniority. The first parcel out enjoys senior rights, meaning they get what they have called for, the remainder junior rights, the leftover. Even with the description calling to be 100' Southerly of the intersection, this is by record 50'. The intent appears clear that this parcel is to be 50' wide. The only thing that would change this would be if you have establishment on the ground performed near the execution of the deed or some kind of agreement between past owners to resolve the uncertainty (it is rare to be able to prove that either of these happened)

Do you any evidence of occupation Southerly of your parcel? Anything? Fencing, curbs or walls online, joints between concrete pours? I'm guessing this is a developed neighborhood so there must be something out there even if you have to get in backyards of adjacent properties to locate side fencing.

[mpallamary]

Senior is Senior and Senior is Senior.

[sako]

You're still confused about seniority. The first parcel out enjoys senior rights, meaning they get what they have called for, the remainder junior rights, the leftover. Even with the description calling to be 100' Southerly of the intersection, this is by record 50'. The intent appears clear that this parcel is to be 50' wide. The only thing that would change this would be if you have establishment on the ground performed near the execution of the deed or some kind of agreement between past owners to resolve the uncertainty (it is rare to be able to prove that either of these happened)

Do you any evidence of occupation Southerly of your parcel? Anything? Fencing, curbs or walls online, joints between concrete pours? I'm guessing this is a developed neighborhood so there must be something out there even if you have to get in backyards of adjacent properties to locate side fencing.

Oline, If I'm confused, your following quotes from last 2 posts make me more confused, you said
"Evan appears to be correct that the Southerly lot is senior and thus should be getting its full 50' with or without the proration."
" The first parcel out enjoys senior rights, meaning they get what they have called for, the remainder junior rights, the leftover"
In the first quote you say southerly lot gets 50', in the second one you say it should get the leftover, in our case the left over is 51.16'. What the first parcel is called for in the deed is the first 100'.
I'm not confused which lot is senior to which, I just mentioned "senior lot" and " junior lot" in OP where I had to say Parent lot and cutout lot, but by reading the deeds, the way it's written, I'm convinced the parent lot's owners intention was to keep the first 100'.

[sako]

I would question the configuration of the original parent parcel that you have set up. 1.16 feet is a significant amount to have prorated across 150' and what monuments is this based on? Are they original? I see a street to the North, are you using a point in the block Northerly of yours? If so, this method would fall outside of the general principle of keeping any error contained within the block where you are working. The fence problem is excaxerbated by this proration. The fence on the southerly side of the southerly lot is pretty good. If you were to give this lot record frontage coming up from the SW corner you have set up, the fence on the dividing line would only be a little more than a foot off rather than the 2.4 you currently have. Evan appears to be correct that the Southerly lot is senior and thus should be getting its full 50' with or without the proration.

Great comments Evan!

Olin, If i start from the SW corner of block and give the lot record frontage the existing old garage will be encroaching by .3' to .4', also the southerly fence will be encroaching into cutout lot by 2.1'. I think the fact that the fence on southerly side of cutout lot being close to the dividing line between lots 2 and 3 ( determined by prorating) is the only evidence available now.

[Peter Ehlert]

Saco: maybe I can restate it this way.
The owner of the original lot sold part of it, he only has what is left over... so that part he sold is Senior. The buyer gets all of it.

Now if those two parties agreed on a line to divide the land (on the ground) and called it "50 feet" (when it actually was a bit different) then that is an error in the description. Proving what happened when, that is your task.

"proportional measure gives you the exact spot that the true point never was" was hammered into my head... Last Resort.

[sako]

Peter, when you say "The buyer gets all of it", you mean including the excess?
So far I haven't found any agreement( written or unwritten)or monument (pipe,70 years old fence) on the dividing line, the only thing I have in hand is the chain of title and the fact that someone down the road decided to change the exception deed from metes and bounds to "south 50'", don't you think this is a game changer? The smaller lot's deed says to go 50' "TO THE DIVIDING LINE BETWEEN LOT 2 AND 3", how do you find this line without prorating?
Please consider following scenarios:
1- if you don't want to prorate and go by record distance from the NW corner of the block, the fence on north line of smaller lot encroaches by 2.4'
2- If you decide to prorate the excess:
2-1 you give the excess of 1.16' to smaller lot, you end up 2.4' in neighbor's driveway
2-2 you give the excess to the bigger lot you still end up being 1.24' into neighbor's driveway
I'm still waiting to meet the owner of the northerly property.

[Olin Edmundson]

Maybe I'm misinterpreting your synopsis of the chain of title, what I'm understanding is that in 1948 there was a 150' x 75' Parcel owned by one party. This would typically be referred to as the "parent" parcel. In 1957 the deed to the Northerly lot has an exception to it. This would imply that between 1948 and 1957 the Southerly 50' was sold off from the larger piece. Being the first parcel to be sold out of the larger piece, this S'ly 50' would be considered senior, while the Northerly piece is the remainder or junior parcel.

[sako]

Maybe I'm misinterpreting your synopsis of the chain of title, what I'm understanding is that in 1948 there was a 150' x 75' Parcel owned by one party. This would typically be referred to as the "parent" parcel. In 1957 the deed to the Northerly lot has an exception to it. This would imply that between 1948 and 1957 the Southerly 50' was sold off from the larger piece. Being the first parcel to be sold out of the larger piece, this S'ly 50' would be considered senior, while the Northerly piece is the remainder or junior parcel.

I need to set the record straight.The parent property's first recorded document is a court order dated 12/8/47.
The first document about the cutout property is a grant deed dated 11/5/48.
The first time the cutout property is mentioned in parent property's documents is a decree of distribution dated 3/16/57.

[Olin Edmundson]

Ok. So if the 1948 Grant Deed is a description of the S'ly 50' then this would indeed be the first parcel out and considered senior.

I am particularly suspicious of road widening surveys because they often weren't all that concerned with the individual parcels they were up against. They can typically pass by multiple old subdivisions and older existing metes and bounds parcels and there isn't always the greatest amount of effort to carefully determine where these adjoining parcels were. The new road becomes defined by the survey and that is that. In some cases, they are straightening out the world, so to speak, when the old alignment passing by these existing parcels was never straight to begin with. If this North/South excess is entirely predicated on the new road alignment, this may be cause for concern unless the particular map is tying in to original monuments in your subdivision. It could be that the road survey is actually leaving a gap in title between the Northerly edge of the old subdivision boundary and the new Southerly edge of the right of way as established by the road survey.

Again, I would search for any signs of stationing Southerly of your lot. It may be just a coincidence that the Southerly fence line between lots 2&3 is, for the most part, in conformance with the Southerly line as you have it set up by proportion. Or, it could by that the fence was based on an unrecorded survey that also incorrectly proportioned using street control to the North.