1. How to get logged in to the NEW SurveyorConnect.com!

    You should have received a password reset notification at the email address you used to register your account here. If you don't receive the email, please check your spam or junk folder. If you still don't have it, please click the following link to manually reset your password. If all else fails, send us an email at support@surveyorconnect.com.

    [ CLICK HERE TO RESET YOUR PASSWORD ]

Strips and Gores Doctrine

Discussion in 'General Land Surveying' started by Dave Karoly, Jun 30, 2011.

  1. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    We need some discussion of this.

    All the Appellate decisions I have found on this so far (in California) have to do with streets and easements.

    Does it apply only to streets and easements or other strips and gores too?

    Texas is a popular state when googling strips and gores doctrine, by the way.
     
  2. Dane Ince

    Dane Ince 4-Year Member

    Joined:
    Sep 10, 2010
    Messages:
    572
    Location:
    San Francisco California
    stop it now

    Mama don't allow no googling in here
    no how!!!!
     
  3. Chan GePlease

    Chan GePlease 4-Year Member

    Joined:
    Apr 15, 2011
    Messages:
    1,199
    Location:
    Mohave County, AZ
    I'll go first Dave, since it is a popular theme.

    Some would propose to survey the description and report the findings. Then advise the client on options to correct said situation.

    Some would research back to patent, then report the findings and advise the client.

    Some would suggest current title report, and pretty much punt.

    Some would re-evaluate the contract in terms of increased fees. Afterall, we didn't make the problem, we just discovered it. AKA - I'm just the messanger.

    Some would realize all of the above, and go from there. $$$ That's kind of my camp. It all depends... and the contrary can be shown
     
  4. Richard Schaut

    Richard Schaut 4-Year Member

    Joined:
    Jul 3, 2010
    Messages:
    273
    Strips and gores are created by a difference between the established legal boundary and a 'deed line' that may be positioned where the description says it should be, even of the description may reflect the platted or original line which may, at some time in the past, have been the legal boundary.

    Fee simple land ownership here in the US is defined as that class of ownership having the unconditional right of disposition.

    The fact that neither lawyers nor courts have the ability to enter onto the land, recover and analyze physical evidence does not make the record a controlling element in boundary determination.

    For a surveyor, the only function a record description has is to indicate the beginning area of search. At best, it may reasonably reflect where the boundary was at some point in the past, but it cannot nullify a legal boundary created by acts of the parties as opposed to one created by law.

    Remember:
    From Wigmore;’s compendium on “Evidence”, 2nd. Edition, Vol. 5 Section 2476:
    “It is not necessary, and it is not humanly possible, for the symbols of description, which we call words, to describe in every detail the objects designated by the symbols. The notion that a description is a complete enumeration is an instinctive fallacy which must be got rid of before interpretation can be properly attempted. …”

    And, from Black's:

    Alienation
    In real property law, the transfer of the property and possession of lands, tenaments, or other things, from one person to another. The term is particularly applied to absolute conveyances of real property. The voluntary and complete transfer from one person to another. Disposition by will. Every mode of passing realty by the act of the party, as distinguished from passing it by the operation of law. See also Restraint on alienation.

    Restraint on Alienation
    A provision in an instrument of conveyance which prohibits the grantee from selling or transfering the property which is the subject of the conveyance. Most such restraints are unenforceable as against public policy and the law's policy of free alienability of land. See restrictive covenant.


    Deed staking is not and never has been the work product of a professional land surveyor.

    Richard Schaut
     
  5. Duane Frymire

    Duane Frymire 5-Year Member

    Joined:
    Jul 2, 2010
    Messages:
    1,104
    One of those last resort rules relating to title and based in equity is the best way to look at it. Otherwise it breaks the rules of evidence in contracts, ie must be ambiguity, must be objective rather than subjective analysis.

    So, it's much tougher (but not impossible) to make this argument absent the street/easement. After all, there could be many things just shy of the boundary that we could say are more valuable to the grantor than the grantee holding on to them. But access to the parcel is particularly compelling, especially when the previous owner can have absolutely no use for the apparently retained strip of land.

    If I recall, most of the cases I've read refer to the strip (if granted by the court) as "useless" to the grantor and "necessary" to enjoyment of the parcel by the grantee.

    Owners trying to fix their own boundaries may come into play, but normally the court still needs to figure out who has or had record title and record possessory rights.

    Yes I know, just get the owners to sign an agreement:). But this brings up interesting issues in some jurisdictions. The point in this doctrine is that the description IS CLEAR. There is no uncertainty to resolve or make certain by agreement. The problem is the result is or seems unequitable or absurd or reasonable (depending on ones point of view). So a boundary line agreement might not hold up because there lacks the necessary uncertainty.

    What would we do for fun if attorneys and landowners didn't write their own descriptions?
     
  6. JBStahl

    JBStahl 5-Year Member

    Joined:
    Jul 21, 2010
    Messages:
    1,161
    Location:
    Salt Lake City, Utah
    Licensed in:
    MT, UT
    > Yes I know, just get the owners to sign an agreement:). But this brings up interesting issues in some jurisdictions. The point in this doctrine is that the description IS CLEAR. There is no uncertainty to resolve or make certain by agreement. The problem is the result is or seems unequitable or absurd or reasonable (depending on ones point of view). So a boundary line agreement might not hold up because there lacks the necessary uncertainty.
    >

    You're right on, there Duane. The analogy can be taken one step deeper, however. When there truly is a strip or gore (proven by two retraceable sets of footprints on two separate lines with no ambiguity), then there are three pieces of property involved, not two adjoiners sharing a common line. The two owners can't enter into an agreement on how they desire to divide and claim ownership of a third party's property. It'd be like having your two neighbors agreeing to split your property in half by constructing a fence down the middle and claiming it as their common boundary. They simply can't do that. The agreement is invalid for lack of authority (they're not adjoining landowners).

    Most jurisdictions avoid the "strips and gores" argument by simply standing on the presumption of law that the grantor does not intend to retain ownership of a narrow strip of land next to one of his outside boundaries, especially when the strip has no productive value to the grantor. The intent of the parties is what controls the finding that there is no "strip or gore" existing. This type of holding also forms the basis for the "benefit of the grantee" doctrine upon which some jurisdictions rely.

    JBS
     
  7. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    The practice seems to vary by geography in California.

    I have some thoughts on it, particularly the money angle but I will refrain.
     
  8. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    So in the typical latent "gap" case the Strips and Gores Doctrine does not apply?

    It is really a question of what the evidence of intent shows?

    It could be stated like this: Original deed calls the parcel 100' wide. First deed out calls west 50'. Second deed out calls east 50'. Staying within the four corners of these deeds you have two parcels and one boundary. Some years later the Surveyor finds the original deed is really 102' wide. Now if you stay within the exact widths of the two 50' deeds obviously there is a third parcel that is 2' wide between them. There is a lot of entrenched thinking (for a variety of reasons) that favors the additional 2' wide parcel.

    The problem with going to the original grantor is they immediately get dollar signs in their eyes.
     
  9. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    Just to be clear, it seems that the Courts consider whether the strip is useful, not its value (a distinction).
     
  10. Dane Ince

    Dane Ince 4-Year Member

    Joined:
    Sep 10, 2010
    Messages:
    572
    Location:
    San Francisco California
    First and where?

    Is it possible for a thing to have value if it is useless?
    Can you point me to a case on the doctrine Mr Dave?

    thanks
     
  11. daw

    daw 4-Year Member

    Joined:
    Jan 18, 2011
    Messages:
    40
    Location:
    South Dakota
    Value

    From a Texas 2006 case

    187 S.W.3d 201; 2006 Tex. App. LEXIS 1345; 170 Oil & Gas Rep. 420

    LexisNexis® Headnote Real Property Law > Deeds > Construction & Interpretation

    The strips and gores doctrine requires the strip (1) to be small in comparison to the land conveyed, (2) to be adjacent to or surrounded by the land conveyed, (3) to belong to the grantor at the time of conveyance, and (4) to be of insignificant or little practical value.
     
  12. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    First and where?

    I agree the distinction sounds strange but consider the case of a footpath. Suppose the Grantor intentionally kept the strip so he could walk between the two properties to the beach (or whatever). A footpath may not be worth much but it is useful. The Court might hold that the strip is of low value but it is useful so therefore it exists.

    I have a list of Strips and Gores cases but it's on my other computer (the cat is exercising her Friday morning claim of right to my lap).
     
  13. Kris Morgan

    Kris Morgan 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    3,266
    Location:
    Rusk, Texas
    I was reading some law the other day where the State owns minerals under county roads and there was a blurb in there about the strips and gores doctrine when selling land to the margin and it's presumption was to go to the centerline of the road under the strips and gores doctrine.

    It's fairly difficult to implement from time to time. While spite strips may not be allowed anymore, clear cut intent to reserve strips doesn't always mean they can't and the doctrine applies.

    As always, it depends.
     
  14. LRDay

    LRDay 4-Year Member

    Joined:
    Aug 26, 2010
    Messages:
    1,957
    Location:
    Sanpete County, Utah
    Licensed in:
    UT
    There is not a third 2' wide parcel. You don't have a deed reservation for it and there was never any original intent to create a third parcel. That is the strips and gore doctrine. All you have is some metes without bounds poorly developed descriptions that are not precisely accurate (imagine that). Mostly math nerds that don't know the law come up with this stuff (including me years ago).

    Another way some of these issue resolve is the full senior rights approach. The senior gets his cut and the junior gets what remains including the excess (even if the math doesn't add out).

    It is a huge problem though with the misunderstanding in Utah going all the way to the Utah legislature, title industry, county recorders and surveyors , and many private surveyors. Most landowners are clueless and get bad advice from almost everyone else. What you're left with to move the ball forward when this non-problem surfaces as a problem is passing quit claim deeds all around the neighborhood, making the records more messy than they already are and going to the graveyard to get a deed signed. Yup, ignorance is bless. Simple just can't exist.
     
  15. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    Research so far indicates that the Strips and Gores Doctrine does not apply to small unknown strips of land due to description shortages.

    The Strips and Gores Doctrine applies when a Description is bounded by a street or other easement and provides a presumption that the grant goes to the center of the easement unless expressly stated otherwise.

    It doesn't apply in cases where the strip is under a separate title such as a railroad held in fee.

    Also if the easement originated all from one title (such as on the margin of a subdivision) then the Doctrine still applies but the properties which are part of the original Title would hold fee to all of the strip.
     
  16. Duane Frymire

    Duane Frymire 5-Year Member

    Joined:
    Jul 2, 2010
    Messages:
    1,104
    So, there is no "strips and gores doctrine"?

    If the description touches the monument, title goes to center or as far as grantor had title to convey. This is an evidentiary rule of interpretation. There is no strip or gore in this case.

    There does appear to be a seperate "strips and gores doctrine", at least in Texas. See: Moore v. Energy States, Inc., 71 S.W.3d 796 (Tex. App.--Eastland 2002, pet. denied)
     
  17. Dave Karoly

    Dave Karoly 5-Year Member

    Joined:
    Jul 1, 2010
    Messages:
    6,454
    Location:
    Sacramento, CA
    Licensed in:
    CA
    "Citing the state policy against the creation of strips and gores, the trial court concluded the Whiting Company did not intend to reserve the fee title to the alley. (See Safwenberg v. Marquez (1975) 50 Cal. App. 3d 301, 306 [16 Cal. App. 4th 1282] [123 Cal.Rptr. 405].) It is well settled "under the principles of common-law dedication the public takes nothing but an easement for a public use, the title to the underlying fee remaining in the original owner and passing to the successors in ownership of the abutting land. [Citation.] Under that principle of law all that the county [] obtained by the dedication and acceptance was an easement for road and street purposes. The underlying fee remained in the original owner and passed to his successors." (Id. at p. 307, internal quotation marks omitted.) fn. 2 Accordingly, we conclude the trial court correctly determined the abutting owners in tract 9808 did not acquire title when the county abandoned its easement rights in the alleyway. As a matter of law, the fee title to the alley was always in the tract 10009 owners." -Besneatte v. Gourdin (1993) 16 Cal. App. 4th 1277 [21 Cal.Rptr.2d 82]

    I learned Texas has a case commonly called "The California Case."
     

Share This Page