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Scrivener's error (I think)  

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MightyMoe
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Jones is patented the E1/2SW1/4, he then forms a company and creates a subdivision lying south of the south bank of a creek that runs east-west through the northerly portion of the 80 acres. Smith is deeded the E2SW4 excepting the subdivision in 1925. Smith deeds out some lands and eventually Johnson an heir to Smith gets the remaining lands through a court action after Smith dies. 

in 1960 for some reason Johnson creates a deed describing the remaining lands as north of the north bank of the creek instead of north of the south bank, the plat clearly shows the south bank as the subdivision boundary. This is the scrivener's error (I think) there seems to be no other reason for the gap that is created. 

Johnson deeds out his parcel and describes the south line as north of the north bank, which brings us up to the present day owners,,,,,,,,,,,is there any way except for a quiet title action to clean up the gap?

Johnson is long gone, the only possible owner of the creek by the descriptions are the heirs, there is no way for any of them to get physical access to the land, they all live far away anyway. 

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Brian Allen
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Well, if you ask an attorney (well most of them anyway) they will say that some court action (for which they will get well paid) is necessary.

At first glance I'm tending towards the strip & gore doctrine (or something similar).  I'm assuming Johnson didn't, by clear language and subsequent actions by him and the adjoiners, intend to retain the creek.  Therefore, the boundary of the senior parcel - the south bank, is the boundary.   Well, unless, your state treats the creek like a public road and the centerline is presumed to be the boundary unless it is unambiguous that the centerline isn't the boundary.   I ain't even touching navigability and "water front" issues......................

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JBStahl
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@brian-allen

  • I agree with Brian about the Strip and Gore doctrine, but not with the final assessment. The doctrine not only recognizes that there is no intent to retain the strip, it also reasons that the boundary is the center of the creek in both descriptions. A call to the bank is common as 1) surveyors don't  place monuments in the creek, and 2) the owner's need for access to the water is paramount. There must be specific language expressing the intent to retain the creek bed in order to overcome the strip and gore doctrine. The center of the creek is the boundary.
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linebender
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@jbstahl

Interesting. So do the lot lines in the subdivision extend to the creek or is there a bend on the bank giving each lot its proportion of the thread compared to its proportion of the bank? Is a surveyor authorized to make these judgments? Wouldn't it depend on how owners have occupied the creek since the conveyances? 

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Duane Frymire
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@linebender

I would go normal to the thread unless that caused some major problem. I agree line is center/thread.  Trend in the law is to do away with strict interpretation of "bank" and require explicit language excepting conveyance to center of waterway.

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holy cow
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@duane-frymire

The subdivision plat should have made it absolutely clear that the lots are entirely on dry land.  That would have been the most common approach in my region until maybe the past 20 years.  No one would want to pay big dollars for underbrush and crap...………..until recently when the world started going insane.

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Duane Frymire
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@holy-cow

Yeah, the law does evolve.  The trend began when instead of having trouble selling such lots at all, they began to realize the highest prices from them because of access to the water. If the courts in that jurisdiction haven't got there yet I certainly wouldn't try to lead the way:)

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MightyMoe
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@duane-frymire

There was a subdivision prior to the existing one, it was vacated and clearly the developer wished to retain lands north of the creek. The first subdivision shows lots on each side of the creek with the common lines in the center of the creek. The second subdivision removed the lots north of the creek and placed the north line of the subdivision along the south bank. The creek is a straight ravine section with high banks on each side. It wasn't unusual to see these subdivisions boundaries along the bank of the creek in this area. The state does not recognize riparian rights, so being next to the stream was not an advantage as far as water rights are concerned.

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Duane Frymire
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@mightymoe

Interesting, is it CO?  So, if privately owned bed but no right to use the water, then who cares about title?  What sticks in the bundle of rights are there left to be an issue over? Call it abandoned and escheat it to the State.

 

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MightyMoe
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@duane-frymire

The gap is owned, from the chain of title, by the Johnson heirs, of course the adjoining landowners want to have clean title to the center of the stream. So this is what the attorney is going to "clean up". I don't think anyone wants the state to have this, the area is a community that seems to generate boundary conflicts regularly. We even had the sheriff in the office a couple of months ago over one of our surveys down the street from this parcel. 

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JBStahl
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@linebender

  • Yes. Yes. And yes.
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MightyMoe
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I'm also pointing the attorney in the direction of the Strip and Gore doctrine, I'm not sure about the specific procedure that will make the title people happy. He is clearly wishing to avoid court for this issue, which is a nice change.

The south bank was referenced and called out for the description for the subdivision, it was also clearly shown on the plat. There is no navigability concerns or federal or state retention of the waterway.

 

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JBStahl
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@mightymoe

I think y'all are missing the point. The strip and gore doctrine IS the solution. There is no problem to fix. It was standard practice to map and describe to the bank as it identifies the usable upland. Title automatically is appurtenant to, attached to, part of, included with the upland to the middle of the stream. A survey which shows a gap would be erroneous. The LAW requires the title to pass UNLESS it can be proven there was an expressed (in writing) intent to retain the ownership. No need for an attorney. No need for an agreement. No need to change the description. No need to modify the plat. Only need is to obey the rule of law and show the boundary down the middle of the creek.

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MightyMoe
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@jbstahl

Thanks JB, there is an existing fairly recent survey that monumented the bank and that complicates the issue, I'm pushing for claiming the property without any court being involved. The attorney is considering it, we shall see. 

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JBStahl
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@mightymoe

The recent survey "that monumented the bank" would be correct. Monuments should go on the bank.  They are marking closing corners, not the terminus of the boundaries.  The closing line between corners that follows the bank is also a correct way to depict the useable upland for area calculations.  The closing (meander) line doesn't represent the boundary.  The middle of the creek is the boundary.  It would be nice if the plat and the recent survey depicted the location of the creek bed and the boundary along the middle of the creek, but the law doesn't really require it (even though that's where legally it falls).  Personally, I'd show the corners on the bank, show the connecting (meander) line along the bank in a dashed designation with bearings and distances, show the banks of the creek, and show the boundary running along the middle of the creek without dimensions.  I'd also be calling the job done.  No need for an attorney or courts.  They don't determine boundary locations. Surveyors do.

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linebender
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@jbstahl

From our state survey code

 “Meander line” means a traverse approximately along the margin of a body of water. A
meander line provides data for computing areas and approximately locates the margin of the
body of water. A meander line does not ordinarily determine or fix boundaries

The course of each boundary line shown on the plat may be indicated by a direct
bearing reference or by an angle between the boundary line and an intersecting line having
a shown bearing, except when the boundary line has an irregular or constantly changing
course, as along a body of water, or when a description of the boundary line is better
achieved by measurements shown at points or intervals along a meander line or an offset
line having a shown course.

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holy cow
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How many adjoiners in the subdivision south of the south bank of the creek?  If only a couple you might work with the client to have those adjoiners sign quit claim deeds to the owner north of the north bank.  Describe the scrivener's error in detail, show them the plat of the subdivision showing they clearly were not intended to have any part of the creek, tell them they will be named in a quiet title action if needed, then present quit claim deeds that are already filled out.  This works best if you can get the adjoiners together for a single presentation.

Had something similar once where the client did not want to own the empty strip and was willing to quit claim any interest to the adjoiners.  The adjoiners agreed to the deal.  It still took quite a bit of explaining, though.

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MightyMoe
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@holy-cow

There are four, but they will not be involved with the owner to the north. 

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Bill93
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Patent ambiguity - use a boundary line agreement?

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MightyMoe
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@bill93

In this case a BLA will not work, at least in this county, you would need title for both sides of the line. Once you have that, then there is no need for the BLA. 

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