Article: Corner Stone Boundary Surveying Newsletter – Don’t Practice Land Law When You Write Land Descriptions

This article is available with graphics as a PDF.

A land surveyor is under contract to prepare plats and land descriptions for a subdivision by deed, which is still allowed in my home state of California if the resulting parcels are large enough. The client wants to divide his existing parcel, the south 2000’ of the 6000’ wide Hooper Tract, into 3 parcels of roughly equal size. Diagram #1 shows the proposed parcel configuration. The client also asks the land surveyor to add several clauses to his land description to address site access, a future proposed railroad spur and ongoing agricultural activities. Here are the resulting land descriptions:

Parcel A
The parcel of land situated in the Sante Fe Land Grant, Hooper Tract, Russel County, California, more particularly described as follows:

The west 2,000 feet of the South 2,000 feet of Hooper Tract lying northerly of the West Ridge Railroad Right-of-Way.

Subject to a right-of-way for a proposed railroad spur along the existing railroad right-of-way and the south line of Hooper Tract.

Together with a 20 foot wide access easement along the north line of the east 4000 feet of the south 2,000 feet of Hooper Tract.

Said land is to be reserved for agricultural uses only. All parcels have a shared right to water from the main agricultural irrigation well located on the southwest corner of Parcel C.

Parcel B
The parcel of land situated in the Sante Fe Land Grant, Hooper Tract, Russel County, California, more particularly described as follows:

The South 2,000 feet of Hooper Tract lying northerly of the West Ridge Railroad Right-of-Way.

Excepting the West 2,000 feet and the East 2,000 of the South 2000 Feet of Hooper Tract.

Subject to a right-of-way for a proposed railroad spur along the existing railroad right-of-way and the south line of Hooper Tract.

Subject to a 20 foot wide access easement along the north line of the east 400 feet of Hooper Tract.

Said land is to be reserved for agricultural uses only. All parcels have a shared right to water from the main agricultural irrigation well located on the southwest corner of Parcel C.

Parcel C
The parcel of land situated in the Sante Fe Land Grant, Hooper Tract, Russel County, California, more particularly described as follows:

The east 2,000 feet of the South 2,000 feet of Hooper Tract lying northerly of the West Ridge Railroad Right-of-Way.

Subject to a 20 foot wide access easement along the north line of the east 400 feet of Hooper Tract.

Together with a right-of-way for a proposed railroad spur along the existing railroad right-of-way and the south line of Hooper Tract.

Said land is to be reserved for agricultural uses only. All parcels have a shared right to water from the main agricultural irrigation well located on the southwest corner of Parcel C.

Analysis

Before I dig into my critique of these land descriptions, let me lay a strong opinion out on the table. I think many boundary surveyors know more about real property than many practicing attorneys and judges. In many situations, the boundary surveyor is the most important expert on a team of professionals dealing with issues related to land use, land development, or land management. Having made that admission, I think land surveyors need to be more cautious about practicing land law if they aren’t licensed as attorneys.

Let’s assume that our land surveyor has the location of these parcels technically correct. What other problems are there with his land descriptions?
I would argue that land surveyors are uniquely qualified to deal with the location and extent of property in a land description, but not with issues related to the way land is used. They can describe the spatial aspects of property rights, but not the rights themselves. That should be done by a qualified land attorney.

Problems Caused By Land Description Statements

Let’s consider a couple of the problem statements from the land descriptions we listed above:

  1. Subject to an easement for a proposed railroad spur along the existing railroad right-of-way and the south line of Hooper Tract.
    Why is this statement dangerous? The first obvious problem is the exact location of the proposed railroad spur right-of-way isn’t well defined. Where is that proposed right-of-way on the ground? What happens if the railroad decides not to build the spur? Is the right-of-way being created as a fee or easement?
  2. Said land is to be reserved for agricultural uses only. All parcels have a shared right to water from the main agricultural irrigation well located on the southwest corner of Parcel C.

This statement is full of hazards. Does the land surveyor even know if it is legal to restrict land use by means of a conveyance in this way? What exactly is an “agricultural use”? Do golf courses or wineries count? What about an organic farmers market? Is this a permanent restriction on the land, or does it change with the local land use regulation authorizes development? Who will monitor compliance with the restriction?

The questions created by these two (2) statements are good examples of why boundary surveyors shouldn’t practice land law when the write land descriptions. Most of us aren’t qualified to do that. When we enter this gray area, or cross clearly into the practice of land law, we harm our clients, the neighbors of our client, and future land owners. Many well-meaning boundary surveyors will gladly add a statement to their land description at the request of the client. Unless we are working closely with a land attorney, we shouldn’t.

Other Problems

What other problems are caused by inappropriate statements placed in the land descriptions for these three (3) parcels? What problems could the statements related to the use of the agricultural well cause? What conflicts could arise from the agricultural land use restriction that has been placed in the land descriptions?

Please share your comments with us. You can e-mail them to sunburned.surveyor@redefinedhorizons.com. Put “May 2015 (First Half) Feature Article” in the subject line of your e-mail.

  • Subscribe to Blog via Email

    Enter your email address to subscribe to this blog and receive notifications of new posts by email.