Field Notes: Contemplating Cooley

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"The surveyor should inquire when [occupation] originated, how and why the lines were located as they were…" –from "The Judicial Functions of Surveyors", by Chief Justice Thomas M. Cooley, Supreme Court of Michigan, 1864­1885.

Rules for retracing the subdivision of sections are well and good provided the rules were followed in the first place. Sometimes they were not. If you have already made that discovery for yourself, my story will sound familiar. If you have not, read on anyway. With a job like this it’s better to live vicariously.

Trouble with the Neighbor
Our client McCortney had recently purchased a rural parcel with a house on it in the Sierra Nevada foothills. Shortly after moving in he was piqued to see his neighbor, Lannon, parking a motor home on what he thought was part of his front yard. When he confronted Lannon on the matter the neighbor pointed to a ½" rebar in a shallow hole and claimed that it marked the easterly terminus of the line between their parcels. The motor home was clearly on Lannon’s side, but McCortney had never seen the rebar before and was suspicious of its origin. Lannon told him it had been there ever since he (Lannon) bought his property some thirty years prior, and had been accepted without reservation by McCortney’s predecessors. McCortney was unconvinced so Lannon agreed to move the motor home pending the results of a boundary survey. McCortney included a copy of his deed when he returned our signed agreement.

The grant deed for the McCortney parcel reads in part as follows (see Figure 2):
A portion of the north half of the northeast quarter of Section 29, Township 14 South, Range 9 West, Beadell Mountain Meridian, described as follows:
Beginning at a point on the north-south centerline of said Section 29 distant South 1º42′ East 600.00 feet from the north quarter corner of the said section, said point also being the northwest corner of the parcel of land hereby described; thence from the point of beginning continuing along the said north-south centerline South 1º42′ East a distance of 335.00 feet to the southwest corner of the said parcel…

The description continues from the southwest corner of the parcel and proceeds counterclockwise by metes and bounds to the point of beginning at the northwest corner. It closes without mathematical error and there is no mention of physical monuments, maps or adjoining parcels.

Adjoining Parcels
McCortney had a total of four adjoiners: three east of the north-south centerline and one west of it. The adjoining parcels east of the centerline were owned by Lannon, Herrison and Starre. These parcels were described in deeds written similarly to McCortney’s; each cited the same point of commencement, the north quarter corner of Section 29, and proceeded South 1º42′ East along the north-south centerline to reach the parcel subsequently described. The descriptions fit together neatly without gaps or overlaps, and as was the case with McCortney’s deed, there were no physical monuments, maps or adjoining parcels cited. Access for the parcels was provided by a 40′ wide road easement, which was also described in the deeds. The adjoining parcel west of the centerline was owned by McKenzie. It was described simply as being the northeast quarter of the northwest quarter of Section 29.

We searched the public records at the county recorder’s office for prior nearby surveys but did not find any. We did however find several record maps showing retracements of the north-south centerline of Section 29. We felt these maps would be useful even though they were for parcels somewhat removed from our client’s. The reason being is that they were all in agreement over the location of the north-south centerline of Section 29, a line we (apparently) needed in order to resolve McCortney’s boundaries. Each map showed the same capped pipes at the north and south quarter corners. Since these capped pipes had been relied upon by numerous surveys throughout the section, tying them seemed like a sensible way to get started. We commenced fieldwork with our usual optimism.

Field Reconnaissance
We own four ProMark2 GPS receivers and we put them to good use for this project. As a small shop we appreciate the economy of these receivers, but we use them in static mode for survey grade solutions and this requires postprocessing in the office. Figure 3 will help follow along with our field survey, but bear in mind that we did not know the results of our measurements until after we left the field.

The capped pipe at the north quarter corner of the section was in the right-of-way of a county road and was an easy find. Off to a good start! Before proceeding south we decided to recover the northeast corner of the section as well. Surveying this point would provide further assurance (or not) of our agreement with record information on Section 29. It too was a capped pipe in the county road right-of-way and was another easy find. Both monuments were suitable for GPS observation. The capped pipe at the south quarter corner required more work. It was in rugged terrain that was difficult to access. This time there was no road. To find the point, we bushwhacked several hundred feet using one of our ProMark2s in navigation mode, with coordinates scaled from a digital USGS quadrangle. Like the others we found this capped pipe undisturbed and GPS-able.

The Neighbor’s Story
Next we moved on to explore the McCortney parcel. McCortney wasn’t home but his neighbor Lannon spotted us on the property and he was happy to show us around. Lannon was a talkative fellow and after quick introductions launched into a history of the area. He began by telling us that the neighborhood had been carved out of an apple orchard in 1940’s. He said he was the second owner of his house and lot, having purchased the property in 1976 from one of the original residents of the subdivision. He had never seen a map of the lots and did not know of any recent surveys, but believed there were at least two original boundary monuments in the area. Both were on his property. One was the ½" rebar in his front yard that started the trouble with his neighbor, McCortney. He believed this rebar marked his northeast corner and McCortney’s southeast corner. The other monument was a 1" pipe in a fence line in his back yard. We walked behind his house and saw an old barbed wire and wood post fence oriented in the north-south direction. It was typical of the rustic agricultural fences common throughout the foothills. Lannon said that when he bought the property the seller told him the old fence marked his west line, and that it used to mark the boundary of the apple orchard before the land was divided. Finally he showed us the 1" pipe that the seller told him was the southwest corner of his property. We searched for but did not find any more boundary monuments in the neighborhood.

The Field Survey
After the tour with Lannon we made static GPS observations at the three capped pipes. We also set local control for total station and back site, and tied the 1" pipe in the fence line, the fence itself, the ½" rebar, the paved access road and other long-standing improvements with our Topcon GPT-3. We returned to the office, post-processed the GPS data and reduced our field notes. When we plotted the results of our survey three things became cl
ear. The first was that the old fence and the north-south centerline of the section were not coincident. The second was that whoever staked out the neighborhood evidently thought they were. The third was that this job was going to take a lot more time and effort than we anticipated.

A Latent Ambiguity?
Our field measurements suggested McCortney’s deed might contain a latent ambiguity, particularly in regard to the meaning of the phrase "northsouth centerline". If that were the case, extrinsic evidence would be in order. To get to the truth of the matter we returned to the county recorder’s office to expand upon our records research. After much tedious studying of grantor-grantee indexes we discovered that the first deed in McCortney’s chain of title was granted in 1948 by an outfit named Apple Investment Company. We dug deeper and found that Apple Investment acquired the north half of the northeast quarter of Section 29 in 1946. It was from this larger piece that the McCortney parcel was subsequently cut. In 1947 Apple had the property surveyed by a fellow named Elmer Rigby, who filed a record of survey map with the county surveyor (Figure 4). Notice that Rigby’s map shows the Apple Investment Company parcel undivided. Despite Apple’s intention to divide and sell the property, it never filed a subdivision map. Instead the land was divided sequentially as buyers emerged using grant deeds with metes and bounds descriptions.

Extrinsic Evidence
Unfortunately the Apple Investment Company map was not called for in the Apple Investment Company deeds. If it had been, that would have solved our problem cleanly and saved us considerable time spent on research. Not to complain though because we were lucky to find the map. It showed us that the so-called north-south centerline of Section 29 was not established according to the system of rectangular surveys (as illustrated in Figure 1). The line on the Apple Investment Company map has a bearing of S1º42’E, just like it does in the deeds (which it pre-dates), but its southerly terminus is the 1" pipe in the fence, not the south quarter corner of the section. The only way to reconcile the deeds with long-standing lines of occupation was to use Rigby’s pseudo-centerline, as re-established with found original monuments, as the basis of bearings. This was equally the case with McCortney, Lannon, Herrison and Starre. Also by this solution the paved access road fit perfectly within the 40′ wide easement, and Lannon’s ½" rebar fell at the easterly terminus of his common boundary with McCortney. These facts made compelling evidence that the map, the deeds, and the original staking of the lots and road were all executed using the same information.

What about the Gap?
By accepting the 1" pipe in the fence line Rigby created a gap between his pseudo-centerline and the actual (see Figure 3). He didn’t show the gap on his record of survey, naturally enough, but we sure found it and ultimately showed it on ours. Gaps are better than overlaps because indeterminate ownership is less troublesome than disputed ground. But they’re still a problem. So who might own the gap? Good question! As a surveyor I don’t have the judicial authority to answer it. Let’s speculate. Can McCortney lay claim to some of it? Maybe, although neither he nor his predecessors ever occupied it, and he didn’t even know it existed until he hired us. We suggested he contact an attorney prior to thinking about moving the fence. How about McKenzie, whose family had been running cattle over the land for generations, all the while assuming the old fence was their boundary? That sounds like a possibility, except that it would probably require litigation since the gap lies outside the boundaries described in his deed. Or maybe the heirs of Apple Investment Company could claim the gap. That seems highly unlikely but stranger things have happened.

Contemplating Cooley
In his famous essay "The Judicial Functions of Surveyors," quoted at the beginning of this article, Chief Justice Cooley also observed the following:
"Unfortunately it is known that surveyors sometimes, in supposed obedience to the state statute, disregard all evidence of occupation and claim of title and plunge whole neighborhoods into quarrels and litigation by assuming to `establish’ corners at points with which the previous occupation cannot harmonize." A literal retracement of our client’s deed would have created havoc in the neighborhood and conflicted with lines of occupation that dated back to the creation of the subdivision. Perhaps even more important, especially in regard to our role as surveyors, we believe it would not have reflected the intent of the original grantor. What makes this case particularly sobering is that there was nothing in the deed to suggest extrinsic information would be necessary to interpret the writings therein. But things are not always as they seem.

Author Note: The names in this story have been changed to preserve anonymity. Any similarity to persons living or dead, or places real or imagined, is purely coincidental.

John Wilusz is a Water Resources Engineer with the California Department of Water Resources. This story is from his previous life as sole-proprietor of a land surveying and civil engineering consulting business. 

A 1.397Mb PDF of this article as it appeared in the magazine—complete with images and excellent maps—is available by clicking HERE