California Surveyors Forums

Technically, it doesn't need to be included in the new description because they are not part of the current estate and therefore can't be conveyed. Omission of the reservation in the new description cannot cause them to be included in the conveyance. The significant downside is that those reservations might not be readily found in a future title search unless the researcher looks at the documents behind the chain of title.

Arguably, the description describes a geometric shape or location on the surface that may extend downward into the earth, while the right to extract oil, gas, hydrocarbons, etc. is a property right rather than a location. The bundle of rights associated with the conveyance can be addressed outside of the description within the conveyance document.

You might consider relenting on the insistence that these reservations be included in the description in favor of ensuring that they are addressed elsewhere within the conveyance.

I do not have a chapter and verse citation for you. I have seen many descriptions, typically grant deeds, where subsurface rights were mentioned. Generally these rights were reserved or excepted on the same page where the property being conveyed was described.

Your question makes me wonder if there could be some negative impact upon the rights of the holders of subsurface rights. Mostly subsurface rights are held without rights to surface access, but there are cases where there are surface rights as well.

I can understand,not wanting to be on the hook in the event that ALL rights were not enumerated. This has happened. Title issues are missed everyday and the loathsome thought of the liabilty resulting from a new mergering description,detrimentally relied upon, that failed to list ALL subsurface rights is awesome. I mean awesome not in a good sense ,but in a totally overwhleming and destructive sense.

In a perfect world it seems like not such a big deal to request adding a few lines like ...Subject to the right title and interest as described, name the document, recording data...but people are imperfect and this could be a recipe for a malstrom.

Most land transfers do not include subsurface mineral rights, I don't know who owns them but some big oil/coal company probably does.
There are a few parcels where the owner of the property also owns the subsurface mineral rights. I actually had to tie a well head to a property over a mile away due to slant drilling and the parcel owning its mineral rights.
If you are combining parcels where some own the subsurface mineral rights and some don't I would think those that hold the mineral rights have to be described in the deed and even shown on the map otherwise how does anyone reviewing the new deed/map know where the mineral right ownership lies.
Actually I thought locating the parcel was of little use as the drill/well could be 100ft or more from the parcel and be sucking oil out from under the parcel.

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+1 to Dane's idea:

dmi wrote: it seems like not such a big deal to request adding a few lines like ...Subject to the right title and interest as described, name the document, recording data

I would not have much problem adding it to thedescription if the same reservation clearly and unequivocally applies to all portions of the resulting merged parcel. But a surveyor's land description is designed to be locative, not descriptive of all rights associated with the location described.

Do each of you also include the description of each encumbering and appurtenant easement in your description of the subject parcel? Do you also include mention of the type of estate that is being conveyed? Do you mention, for instance if the parcel is subject to a deed of trust?

At some point, the appropriateness of what information to include in a description gets gray, and at another point it starts to become clear that you have crossed from the role of surveyor (defining where a parcel or locatable property right is) to that of the title insurance company of the attorney (identifying the rights and quality of those rights associated with a real property conveyance).

With the description at hand, it seems that from what JLB knows, some of the existing parcels have this reservation and it appears that others may not. So as landbutcher pointed out, the resulting merged parcel would be a patchwork of lands with subsurface rights and land without.

If you are going to include mention of the reservations, and not all parcels have that reservation, then you also have to describe the limits within the merged parcel of either the reservations or of those locations where the subsurface rights still exist.

But are you certain that those pre-merger parcels not having mention of the reservation in their descriptions actually have the subsurface rights associated with them still intact with the surface estate?

Whether you describe the portions where you know reservations exist, or you describe the portions where the rights are apparently intact, you, the surveyor are making a statement of the existence of subsurface rights to some very expensive materials, and applying your signature and seal to that statement. That statement, being a portion of the description of a real property conveyance, is supposed to be valid until a new description is used in a new conveyance, until the property is subdivided, merged with others, or its location is otherwise altered and reflected in a subsequent deed.

If a title company will only stand behind their findings of fact regarding the rights associated with a property for a very limited time, what gives you the additional comfort to certify to the existence of those rights for several years or decades? And where did you come by the additional expertise (and clairvoyance that the subsurface right will remain with the surface estate as long as the deed containing the description is valid) to assume the role of other professions within the role of determining the location

Remember that an estate is a bundle of rights associated with a property. The property location can be defined and fixed by description, and that remains the definition of the location until something happens to change its size or shape, in which case a surveyor creates a new description or descriptions to be included in a new record document.

Property rights can be added or removed independent of the description of any deed in the chain of title. A title report is good for a short period of time for this very reason. Typically, it is considered to be no longer valid after 90 days, and any action requiring reference or reliance upon it requires an update after that time window exactly because various rights making up the estate can be added or removed independent of each other during that time.

Again, I ask: How certain are you that the subsurface rights on those other parcels have not also been separated from the surface estate? And, do you want to bet your company and your net worth on the likelihood that the title company was completely thorough and is correct in identifying all separated and all remaining property rights?



You all go ahead and add the few lines because "it's no big deal" if you like. The more I consider it, the less willing I would be to do so without further assurance, and perhaps insurance from the title and legal professionals involved regarding any statements of property rights which may or may not be associated with the property location I describe.

"I can understand,not wanting to be on the hook in the event that ALL rights were not enumerated. This has happened. Title issues are missed everyday and the loathsome thought of the liabilty resulting from a new merger description,detrimentally relied upon, that failed to list ALL subsurface rights is awesome. I mean awesome not in a good sense ,but in a totally overwhleming and destructive sense."

"it seems like not such a big deal to request adding a few lines like ...Subject to the right title and interest as described, name the document, recording data...but people are imperfect and this could be a recipe for a malstrom."

Does this read like a statement in support of doing more that describing the merged parcel?

I think my post laid out the pitfalls of calling out the subsurface rights as part of a legal desription prepared by a surveyor. If my post has some other unitended meaning, then excuse me that is not my purpose at all.

The surveyor has plenty of liabilty without taking on MORE.

There was no personal attack , Dane, so smooth your hackles.

I was agreeing with you but going into more detail in the reasons.

JLB wrote:I am inclined just to go ahead and let it be but do you think the surveyor should add some sort of note regarding those rights?

No. Simply suggest that the surveyor ensures that the title company, the client, and the client's attorney (if one is involved) are aware of the subsurface rights as they appeared in the pre-merged descriptions.

Allow the title company and attorney to do their job with respect to the rights and let the surveyor not take on potential liabilities beyond his scope of service by making statements that will be recorded as to property rights.

If I were that surveyor, I would type up a letter detailing all the facts I knew of any such matters that might have been contained in the old descriptions that won't necessarily carry through to the new one, address it to the attorney and cc the title officer.

If they then wanted to engage me (or in this case the surveyor you're working with) to perform any additional research and analysis in the matter, that would be a separate matter from the description for the merger.

That gives the surveyor the opportunity to not only capture any additional costs that might be incurred, but let's him provide a valuable expert service to his client while at the same time limiting his liability. His findings are provided in the form of a report that the title company and/or attorney then have the choice of how to use.