"The Pincushion Effect"

[dmi]

I am glad that you posted both the Federal rules and the state rules on evidence. They are different. Perhaps Mr. Woolley can clue us in, wheteher or not an expert in Ca. can testify to the ultimate question. It would appear that according to the section you posted an expert may only testify as to their OPINION.

[dmi]

These discussions are extremely difficult to conduct, because the factset is sooo important to the decision as to which principle is the correct principle. I respectfully submit a reference from a bygone era.

"The Legal Elements of Boundaries and Adjacent Prperties" By Ray Hamilton Skelton,C.E. copyright 1930 page 218

"IV LIMITATIONS
Section 218
While certain circumstances raise a presumption that an excess or deficiency is to be apportioned, the facts in any particular case may establish that the intention is otherwise, the presumption is overcome, and the rule does not apply-

(6) Where there is no connection between the deeds of the various grantees in both time and circumstance, for where each grant is distinct and separate they may take precedence in order of seniority, and the junior grant must bear the deficiency or take the excess."

[Anthony Maffia]

Parent parcel (100’x100’) is owned by A. Owner A grants the E.50’ to B and the W.50’ to C. A later survey determines the original lot to be 101’x 101’. There is a gap in title and a gap on the ground.

The deeds to B & C could have been written in a way as to prevent a gap:

(1) Each deed calls to an iron pipe at the NW corner of B. The IP is evidence that the the NW corner of B and the NE corner of C are the same point. Hold the IP if found, otherwise it is a junior / senior problem.

(2) Or, the deed to C calls to the westerly line of B. Again, no gap.

This thread is very interesting, and time consuming. Thank you all.

[btaylor]

Mr. Woolley, thank you for the answer. You certainly make me think about past surveys of mine.

[Dave Karoly, PLS]

"When a man has had a training in one of the exact sciences, where every problem within its purview is supposed to be susceptible of accurate solution, he is likely to be not a little impatient when he is told that, under some circumstances, he must recognize inaccuracies, and govern his action by facts which lead him away from the results which theoretically he ought to reach. Observation warrants us in saying that this remark may frequently be made of surveyors." -Justice Thomas M. Cooley.

If an exact set of rules could be laid down as some suggest then we wouldn't need professionals, we would just program a computer.

Numbers and math provide comfort to our orderly minds (me too) but boundary decisions including the number of parcels must be based upon the evidence available, not rigid application of arbitrary rules. That is the professional part.

[LS_8750]

Wooley, you just knocked that one out of the park. I thank you. It took a read of Lucas' book for me to zero in and understand where you are coming from on so many posts covering so many topics that I have read of yours.

The issue of gaps is to be treated differently here in California, as opposed to that treatment described in "The Pincushion Effect". It is easy to understand that real world scenarios are much more variable and complex than those described in this post. Read any text on land surveying and/or engineering and it is always the same, the text serves as a guide, user beware. The rules are not so easy to apply in the real world.

But before you drive the final nail in this thread's coffin, I would like to return to your simplistic example:

When the subdivider uses the plat that shows the total width of the lot to be 100' and he conveys the east 50' and then the west 50', how is it an error to believe, or assume, that the subdivider intended to rid himself of the entire parcel? It is clearly shown within the four corners of the contract that E(50) + W(50) = Total(100), no gap.

Attempting to find my own answer, let's use the 1320' record lot dimension, or maybe the 5280' lot dimension. All I can think of, especially as the parcel dimensions increase, is that the subdivider has personal knowledge that his lot was wider than the record dimension. On the contract we have no way of knowing that. So when the 5280' lot actually measures in the field to be 5310', it can be seen that the subdivider may have intended to reserve the 30' strip in the middle (only if he knew his lot was thirty feet wider than record).

If that be the case then this subdivider may be seen as a dirty underhanded snake after the parties take possession to the middle. And how did this guy know his lot was thirty feet wider than record, where is his surveyor? It seems there may be some conspiracy to commit fraud here.

Mr. Woolley, can you shed some light on this?

Cheers.

[Peter Ehlert]

Yes, Dave Wooley made it darn clear... thanks for your efforts Dave.
Clark: there can be many assumptions. Maybe everyone involved had the ability to measure (and knew how it laid out), knowledge of monuments, knowledge of legal concepts, etc. Or any or all could be ignorant.
Perhaps someone wanted to keep a separate strip as a spite strip to hinder development, or lay a 1/2" PVC irrigation pipe... a gazillion wild guesses can be made.
But none of that clears the title.
Yes, I probably made many decisions thru the years to "give" the excess to one party or another... and perhaps it will come back to bite me (or me heirs) sometime.

I think the real point of it all is that we need to inform our clients (and the general public) of what we find... in a clear manner that we can expect them to understand.

My new years resolution is to quit bloviating, so... Have a Good Day!

[hellsangle]

Great word, Peter! (and response!)
Phil - Sonoma (God's Country - though not as you remembered . . . Ha!)

[Steve Martin]

Peter,

Perhaps you had better put eschewing obfuscations on your new years resolutions list next!

P.S. I hear they have quite the welcoming committee for the cruise ship tourists down your way.

[LS_8750]

Thanks Peter.
You guys realize none of these Bill Oreilly words are in Black's Law Dictionary?

[E_Page]

...all of which is hardly an E.50’-W.50’ situation where both deeds are whole and locatable on a 101’ lot.

Except you started the example with a 100' lot that YOU measured as 101'. You can't just cowboy in a non-existent lot according to your newly acquired extrinsic evidence (your measurements) over the clear intent to have sold two 50' portions of the 100' lot and assign it to the long gone grantor. There's nothing left to form that 3rd parcel out of. The only thing your left with doing is figuring out where your measuring device differed from that used by the person who first defined the 100' lot to be 100' wide.

[LS_8750]

Evan, I've been struggling with this exact same point. Chapter 8 of "The Pincushion Effect" discusses lot and block surveys. In that chapter Lucas describes the old original surveyor as setting all monuments by compass and chain, and probably a bourbon backsite. The original monument positions were found grossly distorted from the plat. It was not until I visualized a similar scenario applied to Dave's example that I realized just how exactly correct he is. What if Mr. Woolley's 100' x 100' lot is found to be 108.6' on the back line and 102.4' on the front line. I've seen similar cases in Santa Cruz County, found original 100 year old monuments on small lots like this 5ft. off record. The subdivider could have walked his lot and known he had more than 100' and so he sold off the E.50 and W.50 lots and reserved a strip for himself.

I guess that's the point we all struggle with. How are we as land surveyors to know the subdivider's intent in this type of situation? That is what makes the job fun, and/or a pain in the neck I suppose.

I still cannot satisfy myself that there was in Dave's example an intent by the subdivider to reserve a 1', or a 0.1' strip, but the principle is the same.

Lucas in Chapter 3 basically says the surveyor should read the junior deed in light of the senior deed and give the junior whatever is left over, exactly like the overlap scenario. I'm sure he would defend his position by stating that the surveyor could make this conclusion after exhausting all evidence collecting efforts and confirmed 1000% that the subdivider intended to sell off the entire parcel. What if the senior discovered the gap and felt entitled to half of it? I wonder if Lucas would take that case or pass or it off to Johnny Cochran.

[E_Page]

Clark,

Each such case will be very case specific. In my experience, a few landowners may have stretched a tape and measured their lot to compare to what their deed says, and a few might have attempted to pace it (but very few know their pace well enough to determine whether their lot is actually long or short compared to their deed), but most will have never done so.

If there is any evidence that the grantor had knowledge of excess in the lot and/or intended to retain some portion, then it would be foolish to opine that a gap does not exist.

However, if by the record dimensions, A = B + C, where A is the full grantor's original parcel, and B & C are the subsequent conveyances from it, AND if there is no evidence (other than math based on recent measurements) that the grantor has actually retained or intended to retain a portion, AND there is no evidence that at any time prior to the junior conveyance that the parties had been informed that the original parcel was of a size other than as indicated in the grantor's deed of the full parcel, then why create controversy where boundaries are otherwise settled? Who does that serve?

Certainly, after you have investigated the most likely place that the excess was actually placed, offer to help correct the descriptions to match the facts, or if there is no clear indication where the excess goes, offer to facilitate an agreement between B & C as to defining a clarified location for the line between them.

But if there is no 3rd parcel between them, inventing one and taking it upon yourself to recreate title where it had been disposed of by a long gone party is a terrible disservice to the parties holding title to the two existent parcels which make up the whole of what was A's parcel.


Some have said that I've posited that gaps don't exist, or that I advocate that surveyors should just willy-nilly take it upon themselves to "close a gap", but they either don't read so well or don't reason so well.

Offering an opinion that no gap exists where evidence (beyond just recent measurements, which is extrinsic evidence which did not exist at the time of the conveyances) suggests it may, or offering an opinion that a 3rd parcel exists where no real evidence exists to support such a finding are equally reckless and can be each troublesome for the landowners.

The only things that can be said for gaps as blanket statements is that one must be very thorough in the search for evidence (documentary, physical, and other) and very careful in one's analysis of the situation.

[E_Page]

This one is from Idaho in 1986. It had nothing to do with lost records or creating an apportionment because the nature and intent of placement of the excess could not be discerned by research.

The court simply used common sense that Conveyance B + Subsequent Conveyance C = Total Record Width of Parent Parcel A.

It gave the gap to C reasoning that since the width stated in C was equal to Width A - Width B, A's clear intent when conveying to C was to fully divest of the property.

From the ruling:

"The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities subject to be cleared up by resort to the intention of the parties as gathered from the instrument itself, the circumstances attending and leading up to its execution, and the subject matter and the situation of the parties as of that time."

The court also discussed that extrinsic evidence of measurements (and a recorder's plat) occurring well after the original conveyances cannot influence the interpretation of the intent as expressed in the original deeds.

Hmmm. Sounds a lot like what CA CCP §1860 says.

[LS_8750]

On the face of the deed there is no ambiguity, but there is a latent ambiguity when applying the language of the deed to the ground. There is in fact a gap on the ground.

It is all stated right there in the posted case as quoted by Mr. Woolley. At this point the land surveyor can turn to the extrinsic evidence, gather all facts available, but the surveyor is not the trier of fact. (period)

The posted case settles the E.50 - W.50 example. I now see clearly the effect of latent ambiguity in this example. I now understand.

This Idaho case may well find its way into Lucas' next edition of "The Pincushion Effect".

There is a fine line between "de minimis non curat lex" and ambiguities for which the land surveyor has no authority to opine.

[E_Page]

"Now, suppose neither party wants to “correct the descriptionsâ€￾, now what Evan? (Not rhetorical)."

You can lead a horse to water.... We can't force client's to do what we know is in their best interest to do, we can only advise. In the case where it is quite clear that no actual gap exists, it's just that 50' + 50' = 100' but measures 101' and there's nothing more to it, and if you are able to determine the actual location of the one line between the 50's by other clarifying evidence that clarified the intent, then strictly speaking, the line is surveyable and although a correction to the record should occur to avoid any potential future confusion, it does not need to occur.

Where a gap occurs and it is not clear whether there was truly a gap created, and/or there is insufficient evidence to clarify intent of the original parties, and one or both (or all 3) landowners are unwilling to effect a reasonable agreement, then file your map showing the conflicting and inconclusive evidence, refer to competent legal counsel and offer to work with the client or and/or his attorney when and if he ever decides to take appropriate action.


"We’re saying the same thing at this point."

As I said before, as to recommending and facilitating solutions, i believe we have been. Where we have differed is that I maintain that a competent profesional boundary surveyor should have the investigative and analytical skills to be able to determine that some situations that initially appear to be gaps are not gaps at all, but just matters of documentation that can create potential confusion. In my view, the surveyor can and should opine that there is no actual gap, but for the sake of avoiding future confusion, he should point out that there are steps that can and should be taken.

You have been characterizing that as the surveyor "closing the gap" by presuming authority he does not have. I maintain that where there is clearly no real gap, by indicating that there is one, the surveyor is creating a parcel by presuming authority he does not have.

Have we boiled down the debate to the basic views?

[bryanmundia]

Evan,

I am trying to understand your process behind the "closing" of a gap which in your opinion, does not exist if the original owner gave east 50, west 50. My question to you is this, where is your ceiling in regards to a measurement? I can see how your mind might tell you that 1' might not be so much when split between two owners (0.5' each). However, what if it was 15', how about 100'?

Does your explanation and procedure stay the same? I goes I want to know is where to find the limit when it comes to the decision to split the excess and when it becomes a decision to proceed down another road? Do you have a specific manual, court case, accepted reference, etc?

Also, before you answer that it depends on the situation or the area, just note that the court system does not take such matters into account in my opinion. The court must rule with the awareness that the decision made can be used to defend future problems which carry the same weight. This in turn eliminates location as something which can be used to come to a decision.

Lastly, I think that the "it depends" excuse is just that. I think I can speak for a few property owners in saying that I don't care if my property is in Newport Beach or the middle of the desert. I want all of the property I am entitled to and my property is worth everything to me.

[E_Page]

Bryan,

You're missing the point entirely. If the gap does not exist according to the deed descriptions and the information available to the parties of the original transactions, then it doesn't exist. There is nothing to close!

Your measurements may show an excess, but if the gap doesn't exist, your measurements can't make one. If your investigation of historical facts of the boundary does not reveal a gap, and there is no other evidence (save your recent measurements) that indicate a gap, you have merely measured an excess that is reflective of "different length chains", and it becomes an exercise for you to determine what "length chain" was used at each stage.

Was the long chain used only when the original parcel was laid out? Was a different chain used in laying out the first outtake and yet a different one on the last?

This concept is not complicated. When you resurvey a subdivision lot and find a monument missing, you measure between the closest original (or at least reliable) monuments in either direction from the missing one. You will almost always come up with a measurement that is different than that shown on the map. If that difference is signnificant, you determine where to account for the excess or deficiency.

In a subdivision, there has been plenty of case law that tells us that lacking superior evidence to the contrary, we distribute the error proportionately according to the individual distances of the lots along the line. The basic underlying principle being that the lots were created simultaneously, at the same time, by the same survey, by definition with the same chain. We hardly have to think about it.

When we don't have the simultaneous conveyance and parcels created by the same survey, we have additional investigation to do. Did all the conveyances use a similar length chain? Was one different than the other? Was only the first outtake measured and the remainder presumed according to the math (in the example we've been using, 100' - 50' = a presumed 50')? We don't have the basic answer just given to us in the form of a subdivision map, we have to first determine the questions that need to be answered and then seek the answers to them. Those answers, if we can find them will determine the appropriate distribution of the excess.

Now I know that you will not have read all that I've written and jump to the conclusion that I have just said that there is no such thing as a gap (you did that in the other thread, and by your recent post, it appears that you either didn't read or didn't fully comprehend what I wrote in this one). So, I will say it again, hopefully very clearly:

If your research of the title documents and other items that shed light on the history of the boundary and/or the circumstances present and information available at the time of the outtake conveyances indicates that the descriptions left a gap, or that the parties may have known that the parcel measured something more than the original record indicated, then your measurements may simply be confirming what your research has already shown - that there is a gap.

[Propst]

As I mentioned in my first post in the first thread, no amount of reasoned argument is going to move anyone off of their established positions.
This thread makes me sad.
:(
But for the record, Evan is correct.

[LS 4722]

This question is directed towards DWolley, but others are free to answer.

Would you close a very small gap? If in the same example you mentioned, you had a deed lot 100' wide, and your measurement came to 100.03' would you call out a 0.03' gap on your Record of Survey and go through all the legal remedies to close the gap? Or would you opine to who the gap belongs to and show as such on your Record of Survey? Would you really call out a 0.03' gap, or a 0.01' gap?

Set wider pipes.

[LS 4722]

.... I was reminded of that 2005 LS Exam problem where the protracted subdivision abutted the airforce base. I never agreed with the "correct answer" to that problem with respect to the small gap between the one lot and the airforce base. Give the gap to the adjacent lot owner.

Clark...

I looked that test up and I do not think that was a true gap/overlap problem. It was just an example of bad surveying

[Keithwill]

Good grief!

[E_Page]

Set wider pipes.

Made me laugh, but won't work. If the monument is called for, the measurement techs will state that any stated distance must come from the exact center. So if there are 2 parcels described between the pipes and the lengths of the two described parcels are something less than the measurement tech's measured distance between centers, he will see a gap.

If the monuments are not expressly called for, the measurement tech may accept one at one end of the line, but then set a new punch mark in the cap of the other at the "true corner" and call the center of the mon off by 0.xx'.

[Ian Easton]

I actually posted this on the Fractional section thread (by mistake)...

Here's the two points at the center of section 29 T. 3 S., R. 5 W. SBBM. (along side the lath). They are about 2' apart. Bit of a problem here.

N 33-52-47.3
W 117-25-37.3
(hand held GPS fix)
The LS pipe shows up in an RS as center of section with the found RCE pipe 1.77' se'ly. The RCE set a few other pipes at section corners, 1/4's etc. that show up on other maps. Who split the section correctly and if you find a pipe that close should you accept it to avoid a future mess and pincushion? Interesting stuff.

[bryanmundia]

Evan,

That is quite boisterous of you to jump to such a conclusion about my reading of your posts. Although sometimes long winded, I do find that you write rather well and do include some information which is useful.

As for this post, I did read everything in your post and did comprehend your principle. What I am asking is this, why do you feel the need to take the leap to determine intent, do we not have the courts to determine such a thing?

Also, where is the case law saying that closing gaps is 1) part of the surveyor's duties, 2) has been performed in the past without recourse and 3) states that your judgement/what you thought is an appropriate defense?

Even still, as a surveyor, we only use case law as a tool in our defense if ever sued due to incompetence or negligence. As most have said on this forum in regards to numerous surveying matters, "it all depends on the situation." I feel that placing yourself in a position to where you must defend yourself using only what you "thought" was correct might not be such a great idea. Everyone has a lapse in judgement at some point in their careers, it is just a matter of if you get caught based on how large of a lapse you have.

I urge you to read my entire post before responding. If you wish to take personal jabs at my intellect and ability to read, please message me in private and we can set up a time to speak.

Best Regards,