I recently completed a survey on a parcel that I did proportionate distances on the record. A short time later, another Surveyor came out and surveyed the adjoining parcel and did not proportion the distance. He said he thought it was not legal to do so.

 

I this area, The current record is still from the 1870's. The Section is recorded as being 80 chains x 80 chains. A quarter of a section being 40 x 40 chains. All or most deeds and records created to date have been done in accordance to this old record by Title compaies and others.

 

A farmer owned the Southwest Quarter of the Southwest Quarter of the Northwest Quarter of the Section. over time, he divided this up and sold it. This was done without surveys and was based upon the old record. Meets and bounds descriptions were written as well as over the same period of time the parcel owners North of this had done the same. The old timers knew of discrepencies in the old section lines, so when they measured to place a fence, they would come from both directions and split the difference.

 

The old record distance for the quarter described above was 660'. The meets and bounds descriptions made reference to this distance of North 660' both on the point of beginning and another course of South 660'. 

 

When the Section Corners were located and surveyed, the Section was determined to be larger than record. This Quarter was large by about 36 feet. The occupation lines were surveyed and compared with record and the actual surveyed aloquot portion lines of the Section. Occupation matched with the aloquot portion of the Section of which made the distance of 660', to about 669'. Therefore, all descriptions that had distance of 660 feet were proportioned to match actual 1/4 1/4 1/4 aloquot part of the section.

 

The other surveyor kept record distance of 660 feet and is in conflict with the occupation. Now the owner to the North wants the other surveyors client to buy the property to the fence that I believe he does not own based on my survey. He is my client.

 

So the question is, "When do you proportion or not proportion a distance?"

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IN ITS SIMPLEST FORM, YOU CANNOT SELL WHAT YOU DONT OWN...

A TITLE CHAIN/RETRACEMTN WOULD HAVE TO BE COMPLETED TO DISCOVER THE "INTENT" (YES I KNOW THAT CAN BE A DANGEROUS WORD)

WITH A LITTLE RESEARCH, WHICH IT SOUNDS LIKE YOU HAVE DONE, YOU SHOULD BE ABLE TO DETERMINE, THAT THE FARMER SOLD OFF 660 X 660'S FROM ONE DIRECTION TO ANOTHER UNTIL HE GOT TO THE LAST LEG OF THE 660, WHERE HE SAID THERE WERE "ERRORS" IN THE SECTION LINE

JUNIOR/SENOIR RIGHTS PLAY A HUGE ROLE IN THIS, AND THE LAST PIECE SOLD OFF WOULD GET THE IREGGULAR TRACT

IF THE NEW SUBDIVIDED TRACTS THAT WERE SOLD OFF WERE DESCRIBED AS ALIQUOTE THEN THEY WOULD MOST LIKELY ALL GET THERE FAIR SHARE UNLES THE DEE POINTED OUT THEY WERE TO GET AN EXACT 10ACRES.

THE QUESTION KIND OF ANSWERED ITSELF, SHOOTING FROM THE HIP WHEN THE FARMER REALIZED OF THE IREGGULAR SECTION LINE AND "SPLIT THE DIFFERENCE" AT THE FENCE. IM SURE ALL PARTIES BUYING THE IREGULAR TRACT COULD HAVE BEEN INVOLVED AND WERE MADE AWARE OF THIS, BUT THE DECRIPTION WASNT WRITTEN PROPERLY TO SAY AS SUCH.

GOOD AGE OLD QUESTION THAT ALWAYS DECERVES A GOOD HASHING OUT, I STILL LEARN FROM THESE DICUSSIONS ON OTHER BOARDS ALSO.

THANKS DARYL FOR POSTING THE TOPIC

Ty Olinghouse
OK PLS
If old occupation supports your survey of the extra 36', and the proportionate calculation places the section corner 9' away from the perfect 660 (which has never occurred in my experience, the perfect mile doesn't exist due to measurement methods available to surveyors in the 1870's.) In my experience, I tend to agree with Judge Cooley in that the original survey is the only correct survey, no matter how incorrect it was measured. Everyone builds to the old section lines through the years, and similar to adverse possession, if you've been using that land for 140 years, it most certainly should be yours by right. The adjoining neighbors seem to have been using it for all of these years and it seems they see a way to make a quick buck when the error is presented to them using modern measurement methods.
The only exact measurement is the change in your pocket!
Love the response!
Thanks Chris,
I agree with you on this one. Every survey is different. We need to look at the occupation and check the chain of title as TY stated. I have had several instances where I have kept record distance. One was at 330 (a fraction of a Section). The land owner measured 330 from the section corner and placed his fence. The true division was 345 from the oversised section.
POB's Jeffery Lucas, PLS, Esq. might appreciate this question.
Kim,

Jeffery Lucas has covered this before and it was a good article, not sure which edition it was, but im sure its in the archives.
Hello Daryl. I would like to comment if you would like. It seems to me there are a few things to consider. One being the way the deed is written. If it gives a metes and bounds descriptive distance then that should be held but if it suggests the owner is entitled to an aloquit portion of the section, as it seems in your case, then yes the section should be broken down and each owner given his portion of that section. Of course there are other things to consider such as found monumentation and possession. How this is handled may be different from state to state or at the discretion of the surveyor or may even be a matter for the court system. You may also be able to get an agreement as to the corner location between adjoining owners. I guess I would map and show what I found as far as proportionment goes as well as any found monumentation and possession such as buildings or fences and set corners appropriately. I would hope this would not cause problems with adjoining parcel owners but that is what I would do. I have always been told surveyors are merely fact finders and the survey does not neccesarily reflect ownership. That is a matter for the court system but it is a little frighteneing to place corners in such a way as to upset the entire community and almost ask for a lawsuit. I hope this is helpful and not more confusing but I guess I am saying that I agree with your decision.
Thanks Mark,

No monumentaion on the properties, just occupation lines. And yes, you are right, we are only the fact finders.
The important thing to remember here is that the two parcels that the owner had sold off were from what you had decribed as being 660'x660 therefore those deeds set dimensions for the parcels sold off. The remander of the 40 acre tract belongs to said owner. Your job as the surveyor is to first break the section down using the 8 controling corners of said section to determine your forty acre tract, the fact that it is large or small is of no concern to you. You then cut out the tracts sold off by their legal description (intent)660x 660 or five acres. The controling content apears to be the distance that is spelled out in these deeds. I hope that helps, if you are in need of more guidance refer to the BLM manual as well as state specific law.
wayne,

660 x 660 is 10 acres, not 5.... and you do make a few valid points, but if every survey was as easy to just read the deed and stake it, we would have so much chaos in the court room daily, it would overwhelm the courts.

" Your job as the surveyor is to first break the section down using the 8 controling corners of said section to determine your forty acre tract"

please let me add, that inable to perform a thourough retracement, all monuments need to be searched for, not just the 8 you can drive too. some counties/states all the 16th corners were set in the original survey.

there is also usually evidence or perpetuation of the original monuments set after the original survey, that can point to the missing original corners. the field notes can also be benificial to restablishing or finding original corners, via witness corners, topo or natural calls

too many surveyors today, get a call, give a quote, go dig up 8 corners, compute there deed and collect the money. this is truly a slap in the face to the profession.

dig dig dig!

research research research!

a quick trip to the courthouse, will provide "intent", remember not all descriptions were written by surveyors, and not all deeds written by surveyors were written with the rights of the adjoiners in mind.

it is nearly impossible or at least unethical to accept a deed from a client and go survey it, without any further research.

"The controling content apears to be the distance that is spelled out in these deeds" the controlling content would be found during a title search, to determine what was sold first and last and how it was described.

"Your job as the surveyor is to first break the section down using the 8 controling corners of said section to determine your forty acre tract, the fact that it is large or small is of no concern to you. You then cut out the tracts sold off by their legal description (intent)660x 660"

why break down the section if your going to use the 660 calls in the deed? wouldnt that be overkill, if your going to use the cardinal calls and distances? being an aliquote description and the intent was to sell a 10 acre parcel relative to the section, if you used the 660 distance there would be surely a gap or overlap, so the size of the section, larger or smaller than the original does matter, and should be a concern it will reflect the real dimension or ratio of the 660



it is important to read the field notes on all surveys, no matter how simple or complex it may seem.


good discussion,
Very good TY, I like your style. THANK YOU.
Research, Research, Research, Try to find Itent, Search, Search, Search for existing monumentation and past surveys on the property and adjoiners properties, Survey the Section, Survey the Evidence, Weigh the Evidence against the description, Seek Testimony from adjoining and past owners. Sound like alot?. So is liability. Not done yet. Calculate corners, Search again for monuments and more evidence. Check occupation to record, check occupation to proportionate ( only if deed makes referance distance to fration of section, Block, or Lot size, and County record is only from original survey of which the deed description was generated from). Bottom line is, you should look at proportionate measurement if the County record is still from original survey and fractional distances are called out in a meets and bounds description. I say look at. Not always do. Researce and evidence should help you make your descision. If a distance is not a fraction of a section, or that of an original block or lot size, or does not make the call to such a line, I would be careful prorating.

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