IV. Beginning the Analysis -- Important Observations
A. Location of the Williams tract. How should William's deed coverage be
located? Since the roads are owned in fee, Thompson tract is bounded on the east by the
west right-of-way of County Road 225, and bounded on the south by the north right-ofway of State Road 21 ( as opposed to the center lines).
Discussion of Williams' Deed Coverage: Locating deed coverages in chronological
order requires the Williams tract to be located first. The description is quite simple: "the
East 1000 ft of the South 500 ft" of the Thompson tract. Since there was no field
measurement leading to these quoted distances, apply the standard rule of
construction for this "protracted" division -- strike the two dividing lines parallel with the
quoted boundaries. The "north line of the south 500" is parallel with the SR 21 right-ofway, offset 500 ft north. The "west line of the east 1000" is parallel with the CR 225
right-of-way, offset 1000 ft west. Since the two rights-of-way are perpendicular, the
William's parcel ends up being a rectangle, 1000' by 500'. This location is shown on
the worksheet. Do you agree????
B. Location of the Craig tract. The Craig tract is the next partitioned. What do you
think is the proper coverage of the Craig parcel??
Discussion of Craig's Deed Coverage: Craig's legal description is quite similar in form
to Williams', "the west 1000 ft of the east 2000 ft of the south 500 ft" of the Thompson
tract. Likewise, these distances are a "protracted" division -- strike the two dividing lines
parallel with the quoted boundaries. The "north line of the south 500" is parallel with the
right-of-way, offset 500 ft north. The "west line of the east 2000 ft" is parallel with the
CR225 right-of-way, offset 2000 ft west. The east line of the "west 1000 ft of the east
2000 ft" must be the same as the west line of the "east 1000 ft", therefore there are no
overlaps with Williams. Craig's parcel also ends up being a rectangle, 1000' by 500'.
This location is shown on the worksheet. Do you agree????
C. First Views of the Boyer Tract Coverage. The Boyer tract is next. The problem
is that Craig, in writing the deed to Boyer, drastically departed from the previously used
method of description employed by Thompson. Craig employed a metes and bounds
form. The main question is how to locate it???
The rule of intent must be applied, but several possible interpretations are possible:
Interpretation #1. One could argue that the intent of deed coverage is a rectangle 300 ft
by 100 ft located in the proper place -- bounded on the south by the right-of-way, on the
east by William's line, on the north by a parallel line offset 100 ft north, and on the west
by a parallel line offset 300 ft west. Use none of the iron pipes since the pipes did not
accomplish their true intention. Was not this interpretation the true intent of the
partitioning parties???? -- What they were trying to do??? Of course!!!
Interpretation #2: Another could argue that the iron pipes are their true intention, since
the parties walked around setting the iron pipes as their intention of deed coverage.
Therefore, this interpretation is the true intent because they mutually agreed to
these markers as the limits of the parcel. This must be the true intent.
Interpretation #3: Another person could argue that they could not have intended to
create a 3 ft gap between the POB iron pipe and the right-of-way, or the 5 ft gap with
Williams' deed line. Therefore, the proper intent is shown by holding the NW iron pipe's
position since it was not intended to be on a previously described line, then strike parallel
lines with the right-of-way and Williams to form a rectangle, with the NW iron pipe as
the NW corner -- bounded on the east by Williams' line, on the south by the R/W line, on
the north by a line through the iron pipe parallel with the R/W, and on the west by a line
trough the iron pipe parallel with Williams. This solves all the overlaps and gaps.
Wasn't that their true intent? Of course they didn't really mean to have the gaps
and overlaps.
Interpretation #4: Yet another analyst could argue that the former solution didn't use
the NE or SW pipes at all. The parties didn't set them just for fun!!! They intended them
to establish the direction of the lines. Therefore, another solution that eliminates the
overlaps and gaps is to hold the NW pipe as the northwest corner, run the west line south
toward the SW iron pipe, but stop the deed coverage at the right-of-way line. Likewise,
from the NW pipe run the north line east toward the NE iron pipe but stopping at
Williams' line. The other two lines of deed corverage are Williams' on the east, and the
R/W on the south. Therefore, all the overlaps and gaps are eliminated, and three of the
iron pipes are used. That sure looks like their true intent!!! Right???
Interpretation #5: Someone else could "pipe up" and say that the overlaps are the
problem. Craig did not own the right-of-way or William's land and therefore cannot
include the overlaps in the deed to Boyer!!! However, Craig did own all the land north
and west of the right-of-way and Williams and could set the other pipes anywhere.
Therefore, hold the SE pipe as the POB, as stated. For a south line, run west toward the
SW pipe until that line reaches an intersection with the right-of-way, then run along that
right-of-way, thereby avoiding the overlap. For the west line, run south from the NW
iron pipe toward the SW iron pipe, but stop at the right-of-way. For the north line run
east from the NW iron pipe toward the NE iron pipe, but stop at Williams' line. For the
east line, begin at the SE pipe, run toward the NE iron pipe until that line intersects
Williams' line, then follow Williams' line. This way, all overlaps are elminated, and all
four pipes are used. This must be the true intent!!! Right???
Well, you get the idea. With little effort you can probably come up with interpretation
#6, etc. The main question is "Which one is 'correct'"? Meaning, if this factual
situation were appealed to the highest court, where would the court hold Boyer's
deed coverage?
V. Dave Gibson's "Best Practices" Solution
A. Introduction. This is a case of the theoretical versus the practical. In the "highest
theory," where is the Boyer deed coverage? Remember, that we are deciding these cases
in the highest theory, according to a correct supreme court ruling. Many surveyors feel
the need to avoid nuisance overlaps and gaps out of a practical sense of service to the
owners; however, there are few if any instructions of boundary/survey law where courts
have instructed surveyors to trade-off correct solutions for practicality.
B. Application of the Principles to the various deeds.
1. The Williams and Craig Deed Coverages. The previous presentations on the
Williams and Craig deeds are correct. The call for the distances, such as "the east 1000 ft
of the south 500 ft," specifies a partitioning by protraction, and the rule of construction is
applied with parallel lines at the stated distances, as shown in the sketch.
2. The Boyer Deed Coverage. Two alternate solutions will be presented, (1) the
"correct" solution, and (2) the "practical solution".
a. The Correct Solution
(1) The Controlling Intent. Many surveyors underestimate the strength of original
monuments set and viewed by the partitioning parties, as reflected in the legal principles
passed down by many, many cases. We have a monument-based system of land law, and
monuments are supreme. In hearing this case, a court would most likely begin by
applying the "priority of calls" presumption. There's no call for a survey, so the next
highest ranking elements are calls for monuments, the original locations of the iron pipes
set by the parties.
(2) Today's Deed Coverage
Before we use the pipes, we must prove that the pipes are original monuments and we
must classify the corners. (1) The pipes were definitely set to define the corners. (2)
They were called-for in the deed. (3) They are all of the same material, diameter, and
appearance, about 5 years old. (4) Harmony of current measurements show evidence that
they are still undisturbed in their original location. The east-west distance today of about
310 ft, represents an error rate of 3 ft per 100 ft. In a north-south direction, there is a 2 -3
ft error in 100 ft. This is very good harmony considering that they were set by pacing.
Therefore, all pipes are considered original monuments, and the deed corners are
considered existent.
The original monuments therefore reflect the true intent of the parties and control
over conflicts with the adjoining right-of-way line and Williams parcel. Physical objects
called for and viewed hold over the invisible such as lines of adjoiners. No, the parties
did not intend the overlaps or gaps, but the description says BEGIN AT an iron pipe (Is
that clear, or WHAT?), and says to go TO an iron pipe (What part of the word TO don't
you understand?). These are strong words in a description. Very direct wording of
contrary intent would be necessary to overthrow the pipes, and this description does not
have a direct contrary intent stated. When considering the POB iron pipes, courts would
probably interpret the term "located on the R/W at Williams' SW corner" as meaning that
location "as we the parties currently believe these lines to be located".
Similar thinking can be applied to the conflict between the pipes and the measurements.
Yes, most surveyors instantly see that they were trying to create a rectangle 300 ft by 100
ft, however a metes and bounds description was employed. Since the
description wording came from the parties who met on the site, set pipes, and made
measurements, then the measurements begin and end at the points on the ground forming
the beginning and ending points of the measuring process -- the pipes.
(3) The Deed Coverage Results
Therefore, the "correct" deed coverage extends to straight lines joining the recovered iron
pipes. There is a deed overlap with the right-of-way, a gap with the right-of-way, a gap
with Williams, and an overlap with Williams. With this thinking, the surveyor can sleep
well thinking, "I didn't create the problems, and I'm going to faithfully report what I
found. Let the attorneys straighten it out."
b. The Practical Solution
If this situation were encountered in a rural environment, a surveyor may be concerned
about reporting "nuisance discrepancies". For example, the overlap and gap with the
right-of-way are mere nuisances.
Adverse Possession Against Public -A private landowner cannot adverse possess against the public. The doctrine of adverse
possession only works between private landowners.
A private land owner cannot adverse possess against the public right-of-way, therefore,
the deed overlap will never ripen into an ownership conflict, therefore why report it? In a
similar way of thinking, the gap with the right-of-way is also a nuisance. Craig has no
interest in defending it, therefore Boyer will possess it and use it. On the east, the same
goes for the gap with Williams. Craig doesn't know about it and will not attempt to
defend that gap. Likewise, the overlap with Williams is very slight and was unintended,
therefore why show it?
Therefore, a surveyor who wishes to respect the "power" of original monuments while
avoiding nuisance discrepancies, would tend for SOLUTION #4. Hold the NW pipe and
extend lines toward the SW and NE pipes but stopping the deed coverage at the senior
deed lines, thereby having the right-of-way and Williams' line form the south and east
sides of the deed.
To win this solution in court, the surveyor would have to overthrow the "presumed
priority of calls," arguing that deed wording in fact does indicate an intention higher than
the conflicting iron pipes. The POB is cited as being on the right-of-way at the southwest
Williams corner, the first course says "along the right-of-way", and the last course calls
"along aforesaid adjoining parcel". Hopefully, these phrases are sufficient statements of
intent that will overthrow the pipes, especially when viewed within the practicality of the
rural location of the parcel.
However, a surveyor that chooses this method, or another practical solution, must realize
that the solution is probably not "correct" upon highest appeal. Do you agree with this
assessment?
VI. Ownership Considerations
A. Surveyor's Opinion of the Ownership Issues
1. The "correct" solution has a deed overlap of Boyer (junior) with the right-of-way
(senior). By SENIOR RIGHTS, Boyer's ownership would stop at the right-of-way
line.
2. There is a gap between Boyer and the right-of-way and another between Boyer
and Williams. By the RULE OF GAPS, Craig still has ownership of these strips since
they were not included in the Boyer deed. Boyer cannot extend the claim by deed past
the deed coverage as stated in the deed.
3. There is a deed overlap between Boyer and Williams. Based on SENIOR
RIGHTS, Williams is senior, and Boyer's ownership would stop at William's described
line.
4. There is NO adverse possession claim of Boyer against Williams where the
northerly portion of the fence encroaches into Williams' deed because neither Craig nor
Boyer showed any acts of possession. The fence was erected by Williams.
5. However, there IS an adverse possession claim of Williams against Craig for the
southerly portion of the fence that encroaches into the gap retained by Craig. The
possession by Williams started 20 years ago against Thompson who then owned the land
to the west. The possession continued against Craig to the present. The possession has
been actual (fenced pasture), continuous, open and notorious, and exclusive. The
possession is also hostile since Thompson/Craig did not "keep the bums out," even
though no one knew that the adverse nature of the possession until the first real survey at
the present time. Therefore, upon a court hearing, ownership would go to Williams by
adverse possession WITHOUT color of title.
6. Presuming that Boyer begins now to occupy the parcel, there is a developing
adverse claim against Craig for the gap between Boyer and the road. Possessory
interests would begin to "accrue" to Boyer against Craig, and after the required time, the
possessory claim would "ripen" into a higher claim than Boyer's claim to the gap by deed
coverage.
B. Variations on the Ownership Issues
Of course, had the "practical solution" been taken for the Boyer deed coverage, all the
gaps and overlaps would not exist. This is perhaps why the practical solution is so
compelling.
Under that solution, the only ownership issue would be Williams' possession against the
deed coverage of Thompson/Craig/Boyer. Boyer now would have to defend the adverse
posession claim, but would also probably loose in court.
VII. Make a Survey Map, Set Monuments, and Write a Report.
The only question remaining is how to monument, map, and report these survey results.
A. The Survey Map should show Boyer's deed coverage as a bold line from pipe to
pipe. The map should also give graphic evidence of the ownership issues. The adjoining
deed lines should be shown graphically, and the four deed coverage overlaps and gaps
should be labeled with terms like "deed overlap" or "gap (hiatus) (gore)". The terms
hiatus and gore are used in parts of the country as the preferred term over the term gap.
Under the "correct" solution, there is no adverse possession against Boyer, and
therefore no possession encroachments should be indicated. Under the "practical"
solution, the encroachment of the southerly portion of Williams' fence should be
indicated with a note such as "possession encroachment".
B. Under the correct solution, no additional monuments are needed. With the
"practical" solution, three new monuments are needed at the new SW, SE, and NE
corners.
C. Surveyor's Report. A written report should be written with a full discussion of deed
coverage issues. A full discussion of each ownership issue with the surveyor's opinion of
likely court resolution.