How Land Surveyors Solve Problems You Don't Know You Have (In Ways You Don't Understand)
Written by Deward Karl Bowles RLS of Texas
Chapter 1 Content
Terms, definitions, and presumptions of law
The following may seem elementary to a seasoned land surveyor or civil engineer, but it is important that we have a common point of beginning (pun intended), by which to understand the issues which arise when writing and interpreting Real Property descriptions. The terms, definitions, and presumptions of law below are by no means universal, nor comprehensive, but necessary for the reader to be able to comprehend the problems encountered by a land surveyor, and how they are resolved, in the subsequent examples.
A Grantor is the person who granted Real Property, a Grantee is the person who the Real Property was granted to. A deed is a Real Property conveyance that is filed for Public Record. An unrecorded deed is a Real Property conveyance that has not been filed for Public Record. An unrecorded deed is only binding on the parties to the instrument. A recorded deed (in the Public Record) is binding on the parties to the instrument and the Public and gives Public Notice. In Texas, we have The Texas Recording Act, which can be found in Section 13.001 of the Texas Property Code, which in part goes as follows:
Validity of Unrecorded Instrument
(a) A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law. (b) The unrecorded instrument is binding on a party to the instrument, on the party's heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument. (c) This section does not apply to a financing statement, a security agreement filed as a financing statement or a continuation statement filed for record under the Business & Commerce Code.
The reason Real Property descriptions are filed for Public Record is to reduce fraud. If somebody tries to sell you the Brooklyn Bridge, then all you must do is look in the Public Record and see if there is a conveyance to them for it. If there is no grant of the Brooklyn Bridge to them in the Public Record, then more than likely they are trying to defraud you.
This does not mean that the Real Property system is free of fraud, and anyone can file a fraudulent instrument for Public Record at the County Clerk’s office. A land surveyor must be very wary of this fact because the Public relies on them to interpret Real Property instruments which define the boundaries of the Real Property being conveyed.
Generally, there are two ways to describe Real Property. By a metes and bounds description and by a map record description. There are various exceptions and combinations for these two types of methods and how a description of Real Property is treated by case law, and codified law, can make a significant difference in how it might be properly retraced and how it might be properly described, both on paper and on the ground.
A metes and bounds description is typically considered to be a sequential conveyance, whereas a map record is typically considered to be a simultaneous conveyance. Again, there are exceptions to these and combinations of them.
A simultaneous conveyance (map record) is a situation where several parcels are created at the same time.
A sequential conveyance (metes and bounds) is all other conveyances.
Retracing a simultaneous conveyance (map record) can be just as tricky as retracing a sequential conveyance (metes and bounds). Since most urban areas are now composed of simultaneous conveyances (map record descriptions), they represent a majority of the retracement surveys being performed. However, there are still plenty of sequential conveyances (metes and bounds descriptions) comprising the Public Record, even in a place like Harris County, Texas, and there are new metes and bounds descriptions being written and filed for Public Record every day.
When creating metes and bounds descriptions, ambiguity is something that you want to avoid. For example, if I am composing a Real Property description and state it is in Mexico, instead of New Mexico, it has the potential to cause a problem for the people trying to interpret that description in the future. The same is true when creating a map record.
How ambiguities are resolved in a Real Property description is critical to properly retracing it. The court seeks to bring certainty to a conveyance, rather than determine it void because of ambiguity, and almost all conveyances contain ambiguities (Poitevent v. Scarborough, 103 Tex. 111, 124 S.W. 87; Mansel v. Castles, 93 Tex. 414, 55 S.W. 559; Coffey v. Hendricks, 66 Tex. 676, 2 S.W. 47). In a place like Texas, land surveyors are charged with locating the boundaries of a Real Property description where the intent of the original grant of that Real Property placed them (Texas Administrative Code, Title 22, Part 6, Chapter 138, Subchapter E, Rule 138.85). This means a land surveyor must resolve all the ambiguities in a Real Property description, the way the court would, before the boundary of it can be located. Explaining ambiguity can be demonstrative evidence of the intent of a Real Property description.
Determining the intent of a Real Property description is the big elephant in the room for a land surveyor. Real Property described by metes and bounds is subject to junior and senior rights. Junior and senior rights can be summed up as “first in time, first in right.” In other words, the Grantee who purchased land from a common Grantor first has superior written title to it (they are senior). The Grantee who purchases land from a common Grantor later can only purchase what remains of the common Grantor’s land (they are junior).
The phrase ‘chain of title' refers to recorded conveyances of Real Property organized by date. It is sometimes necessary to assemble a chain of title all the way back to the original grant, severing the land being surveyed from the parent land. It may also be necessary to perform this task on the adjoining lands, to the land being surveyed. A chain of title may be required for many reasons, when attempting to interpret a Real Property description, including determining junior and senior rights.
It is not always possible for a land surveyor to perform a chain of title on any particular Real Property. This can be due to several factors, including the volume of Real Property instruments which may reside at a particular County Clerk’s office, how those Real Property instruments are organized, if the Grantor/Grantee indexes have been converted to a searchable computer database, and if the Real Property instruments have been digitized or can be read. Some Public Records have been lost, due to fire, flood, or theft. Often, even a professional abstractor will be unable to locate a needed instrument in the Public Record. For example, in Harris County, Texas, the County Clerk’s office has only organized the Grantor/Grantee indexes, in an electronically searchable database, back to 1960. If a Public Record instrument is needed, further back in time, then it is necessary to go through the Grantor/Grantee books. In Harris County this means looking through hundreds of thousands of transactions to find the needed instrument. In certain geographic areas, it can take years of effort to become competent at researching Public Records. This is where experience as a land surveyor becomes indispensable. A land surveyor that is diligent will become familiar with the nuances of the County Clerk offices where they practice.
Texas case law allows certain presumptions to be made regarding the intent of any conveyance of Real Property, whether it be simultaneous or sequential in nature, and this creates even more opportunity for ambiguity to be present in any Real Property description.
Texas codified law prohibits a Grantor from granting lands they do not own (Texas Property Code, Title 2, Chapter 5, Subchapter A, Section 5.003). This means Texas case law presumes a Grantor does not intend to grant lands they do not own, even if the Grantor does not explicitly express that intent in a Real Property conveyance. It follows that you can not subdivide (like a map record) Real Property you do not own. If a Real Property conveyance contains elements which conflict with intent, then this results in ambiguities, which must be resolved before that Real Property conveyance can be properly interpreted.
Texas case law also presumes a Grantor intends to grant all the interests in the land they own, unless some parts of those interests are expressly excluded in the language of the Real Property conveyance (Parker v. Jordan, 632 S.W.3d 108, Tex. App.—El Paso 2021, affirmed by the Texas Supreme Court December 20, 2022). This is related to the Strips and Gores doctrine, (Angelo v. Biscamp 441 S.W.2d 524 {1969}), where the presumption is that the Grantor intends to grant all the lands they own, unless there is specific language in the conveyance to the contrary.
To overcome ambiguities and bring certainty to the words of a conveyance of Real Property, the State of Texas has codified a ‘Dignity of Calls’ (Texas Administrative Code, Title 31, Part 1, Chapter 7, Section 7.5). This means the court presumes certain elements (calls) of a conveyance description have more dignity than others. The order of these conveyance description elements are as follows:
(1) Natural objects (rivers, etc.).
(2) Artificial objects (marked trees, stone mounds, iron rods, etc.).
(3) Courses (bearings).
(4) Distances.
(5) Acreage.
It is important to understand the dignity of these Real Property description elements may be interchanged, or discarded, according to intent (Woods V. Robinson, 58 Texas. 655 {1883}).
There are two kinds of ambiguity, which are a patent ambiguity and a latent ambiguity. A patent ambiguity is an ambiguity that is apparent on the face of an instrument. A latent ambiguity is an ambiguity which is hidden and can’t be discovered through the exercise of reasonable care.
The four corners rule states that ambiguity in a conveyance of Real Property is resolved through reading all the words in the conveyance between the four corners of the instrument (Pellow V. Cade, 990 W.W.2d 307 {1999}).
Any reference to a document, instrument, monument, or anything else, in a Real Property conveyance description becomes part of that Real Property conveyance. This is typically how a map record description is interpreted, i.e. “I grant, sell, and convey, all of Lot 2 Block 5 of Howard’s Subdivision, recorded in Volume 7920, Page 10 of the Map Records of Harris County, Texas, to the Grantee”. The map record of Howard’s Subdivision is now part of that Real Property description and must be consulted to determine the intent of that Real Property conveyance.
Extrinsic evidence is evidence to determine intent which is found outside the writings of a Real Property conveyance. If intent can be determined by the four corners of a Real Property conveyance, then there is no ambiguity and extrinsic evidence cannot be used. However, if there is ambiguity, which cannot be resolved through the four corners of a Real Property conveyance, then extrinsic evidence can be used (Gibson V. Watson, 315 S.W.2d 48, 53 {1958}). This is another area where experience as a land surveyor becomes indispensable. Over years of practice, a competent land surveyor will develop knowledge of where unrecorded documents can be located, which can be used to discern intent. A seasoned land surveyor will also become aware of Public Record instruments, not called for in a Real Property conveyance, which can also be used to determine intent.
A metes and bounds description, unlike a map record description, is typically composed of two parts: the general description and the particular description. The general description tells us where the Real Property is located generally, i.e. “Being 0.05 acres located in the Hopkins Abstract, Harris County, Texas”. The particular description tells us where the Real Property is located particularly, i.e. “Beginning at Tom’s outhouse corner, Thence North, with the easterly line of Tom’s land recorded in Volume 5, Page 60 of the Deed Records, a distance of 500 feet, to the south wall of Joe’s chicken coop.”
The particular description is composed of metes (bearings and distances), i.e. “Thence North, …a distance of 500 feet,” and bounds (monuments), i.e. “Beginning at Tom’s outhouse corner, Thence …with the easterly line of Tom’s land recorded in Volume 5, Page 60 of the Deed Records, …to the south wall of Joe’s chicken coop.”
A record monument may be a physical monument (Tom’s outhouse corner, the south wall of Joe’s chicken coop, etc.) called for in a Real Property conveyance or it could be a Real Property instrument (with the easterly line of Tom’s land recorded in Volume 5, Page 60 of the Deed Records, etc.) called for in a Real Property conveyance.
An uncalled for monument is a monument which does not appear in the Public Record and is not called for in the Real Property conveyance being interpreted. An example of this is the street reference monuments, set by the City of Houston around 1900, to locate the streets in downtown Houston. Calls for these street reference monuments are rarely found in the Public Record, but nevertheless these street reference monuments control the boundaries of the lands in downtown Houston.
Point of Commencing or Place of Commencing is simply the point where a Real Property description commences. Point of Beginning or Place of Beginning is simply the point where a Real Property description begins. These points have no more dignity than any other points described in a Real Property conveyance.
The term record confusion refers to an area where there is an overlap, or gap, between Real Property descriptions. Technically there are no overlaps or gaps between Real Property descriptions in Texas, since Texas owns its own land. Any land in Texas, not described in a Real Property conveyance, is owned by the State of Texas.
Examples
The examples which follow, for the most part, do not contemplate evidence of intent found in the field. These examples are presented so the reader may grasp the complexity of issues which confront a land surveyor, either before or after evidence of intent is gathered in the field.
There are some land surveyors who frown on other land surveyors who perform lot surveys (a survey of a residential lot in a recorded map record). In Texas we do not have “mortgage inspection surveyors” and any survey of Real Property is subject to the same requirements as any other survey of Real Property. Further, a lot survey typically involves many of the problems a land surveyor may encounter during their practice and generally demonstrates the principles mentioned in the preceding introduction.
Example 1
A potential client wants a land survey of a property, at 191 Coach Lamp Lane, Houston, Texas 77060, because they want to purchase it. A tax report and tax map are sent to them, to confirm this is the property they want the survey performed on. Once a written contract is executed, the next step is to find the current deed (Public Record), describing this Real Property, at the Harris County Clerk’s office. A copy of this instrument is shown below.
This instrument states the subject tract is part of Lot 22 and Lot 23 Block 4 of the Replat of Imperial Valley Sections 2, recorded in Volume 136, Page 18 of the Map Records of Harris County, Texas. The next step is to find the map record at the Harris County Clerk’s office. A copy of this map record is shown below.
The image above is poor, and hard to read. We could go to the Harris County Clerk’s archives office and view the original document, however, the Block Book Maps for Harris County (old tax maps before they were digitized) gives us some better images of it. See the images below.
and
The latter being the replat, the former being the original map.
The first thing to notice is the actual name of the map record is “Replat of Imperial Valley Sections 1 and 2”. We will need to correct the Real Property description in Harris County Clerk’s File No. V532796, to conform with the actual name of the map record, it refers to, on our completed survey.
It will be necessary to examine this map record and make a mathematical model of the area where the subject tract is located within it. A mathematical model is required for several reasons.
The simultaneously conveyed boundary lines of the map record must be resolved if we are to cognize the intent of the Real Property metes and bounds description we are attempting to retrace.
The map record is relatively old and was recorded on December 21, 1965. Sine tables, rather than a computer, were used to make the computations for it when it was created. For this reason, we can expect to encounter minor mathematical errors, or ambiguities, when we attempt to build our mathematical model of it. These errors, or ambiguities, will need to be identified and eliminated. Further, the map record we are examining was hand drawn, so we can also expect to encounter blunders (transposition errors, or mistakes) which must also be identified and eliminated.
It was common practice, in the area where this map record was created, for the creator of the map record to only monument the exterior corners, block corners, angle points, and points of curve of the map record (see the Surveyor’s map record certification, “This is to certify that I, Wilson Windle, a Registered Engineer of the State of Texas, have platted the above subdivision from an actual survey on the ground; and that all block corners, angle points, and point of curve are properly marked with 1” galv. Iron pipes 3’ long, and that this plat correctly represent that survey made by me.”). In other words, the lot corners within the map record were never staked by the original creator of the map record. We need to know where to look for those monuments (1” galv. Iron pipes, 3’ long) set by the original surveyor of the map record because they will control the simultaneously conveyed boundaries called for in our Real Property metes and bounds description, and not the monuments set at the lot corners by subsequent land surveyors.
A mathematical model of the map record will help us do all the above.
The obvious intent of this map record is to create concentric curves between the center of Imperial Valley Drive, westerly, to the points of tangent (where the curves end) along Buckboard Drive, County Fair Drive and Coach Lamp Lane, with a central angle (triangle symbol on the CURVE DATA table) of 06º 46’. If we look at the CURVE DATA table on the map record, we can see it has minor rounding errors. For example, Curve 12 states the Central Angle is 6º 46’, the Radius is 2,050.00 feet, and the Arc length is 242.11 feet. A curve with a Central Angle of 6º 46’ and a Radius of 2,050.00 feet yields an Arc length of 242.1018 feet, not 242.11 feet. Curve 10 works with the given data, so does the Arc length, shown above Curve 13 on the map record of 275.17 feet. So, the Arc length in Curve 12 must be a rounding error, due to the use of a sine table to compute it with.
It is also the intent of the map record to make the sideline bearings for the Lots, within the Blocks, perpendicular, or radial, to the street frontage, as demonstrated by note 4 of the notes on the map record. It follows that the bearing traveling westerly through the middle of Block 4, from the westerly line of Imperial Valley Drive between Lots 20, 21, and Lots 19 and 22, must be South 83º 16’ 08” West (or North 83º 16’ 08” East, depending on which way you are traveling), because this would be perpendicular to the bearing shown along the center of Imperial Valley Drive, which is North 06º 43’ 52” West. 06º 43’ 52” + 83º 16’ 08” = 90º.
If we adhere to this intent, the small rounding errors become apparent, and we can quickly identify and eliminate them.
The arc dimensions, along the southerly line of Lots 21, 22, 23 and 24, Block 4, are correct on the map record, but are only expressed to the nearest 0.01 feet. This explains why the total arc distance shown along the southerly line of these lots is incorrect by 0.015 feet. The drafter computed the arc lengths for each lot to the nearest 0.01 feet and then added them up to make the total arc length. Once these arcs are computed the side lots lines (radial with the street frontage), between these lots, can be computed.
The resulting model shows the dimensions in black, where these small rounding errors were identified. The simultaneous conveyance lines (map record lines) and call dimensions are shown in red. The corners, where we would expect to find original record monuments (1 inch galvanized iron pipes, 3 feet long, called for in the surveyor’s certification) controlling those lines, are marked by red donuts.
Next, we are going to compute the metes and bounds calls (sequentially conveyed lines) from the current deed of the subject tract, using intent, and plot those in green on our mathematical model we created from the Replat of Imperial Valley Sections 1 and 2 (simultaneously conveyed map record lines). The calls for the 1/2 inch iron rods, in the example description, are purposely being ignored for reasons which will become apparent later in this exercise.
We will first examine the general description, the first two lines of the particular description, and the first part of the third line of the particular description, which are as follows:
“Being a part of Lot 22, and the adjoining East portion of Lot 23, in Block 4 of the Replat of Imperial Valley, Section 2, an addition in Harris County, Texas, according to the map or plat thereof, recorded in Volume 136, Page 18, of the Map Records of Harris County, Texas, said part of Lots 22 and 23 being more particularly described by Metes and Bounds as follows:
COMMENCING at the point of curvature of a curve on the North line of Coach Lamp Lane in Lot 24, Block 4, as shown on the recorded plat in Volume 136, Page 18, Harris County Map Records;
THENCE in an Easterly direction along the curve to the left having a radius of 2300.00 feet, a distance 96.50 feet to…the POINT OF BEGINNING.
THENCE in a Northerly direction along a line parallel to and 8.14 feet West of the common lot line between Lots 22 and 23,…”
The first thing you will notice is the arc distance call of 96.50 feet, from the Point of Commencing to the Point of Beginning in the second line of the particular description, conflicts with the call “THENCE in a Northerly direction along a line parallel to and 8.14 feet West of the common lot line between Lots 22 and 23,…” in the first part of the third line of the particular description.
Remember the ‘Dignity of Calls’ assumption (Texas Administrative Code, Title 31, Part 1, Chapter 7, Section 7.5).
The arc distance (metes) call of “96.50 feet” in the second line of the particular description does not have the dignity of the (bounds) call of “THENCE in a Northerly direction along a line parallel to and 8.14 feet West of the common lot line between Lots 22 and 23…” in the first part of the third line of the particular description. Therefore, the call for the line parallel and 8.14 feet West of the record monument “common lot line between Lots 22 and 23” must be held in the first part of the third line of the particular description, and the arc distance call of 96.50 feet in the second line of the particular description must yield to it, making the arc distance 96.4932 feet.
Next, we will compute the location of the full third line of the particular description, which is as follows:
“THENCE in a Northerly direction along a line parallel to and 8.14 feet West of the common line between Lots 22 and 23, a distance of 107.89 feet to the rear line of Lot 23…”
Once again, we have a conflict between the distance (metes) call of “107.89 feet” and the record monument (bounds) call of “to the rear line of Lot 23…” in the third line of the particular description. As before, the ‘Dignity of Calls’ assumption dictates that the distance call of “107.89 feet” must yield to the record monument call “to the rear line of Lot 23…” Therefore, the distance of “107.89 feet” must be extended to reach the record monument call “to the rear line of Lot 23…” making it a distance of 108.0879 feet.
Now we will compute the location of the fourth line of the particular description, which is as follows:
“THENCE South 89 deg. 57 min. 52 sec. East, along the rear line of Lot 23, a distance of 8.20 feet to…point being common to Lot 22 and 23;”
Again, the call (metes) distance of “8.20 feet” conflicts with the record monument call (bounds) “to…point being common to Lot 22 and Lot 23;” and the distance call must yield, making the distance 8.1484 feet.
We will now compute the location of the fifth line and part of the sixth line of the particular description, which is as follows:
“THENCE North 83 deg. 06 min. 08 sec. East, along the rear line of Lot 22, a distance of 53.69 feet to… corner;”
THENCE Southerly along a line parallel to the common lot line between Lots 21 and 22, and 1.64 feet West of this common line…”
In this case, the distance call part of the metes “53.69 feet” agrees with the bounds part of the calls “along the rear line of Lot 22…to…corner;…along a line parallel to the common line between Lots 21 and Lot 22, and 1.64 feet West of this common line…” However, the bearing call of the metes, “North 83 deg. 06 min. 08 sec. East,” does not agree with the intent of the map record, which calls for a bearing “perpendicular to the street frontage”, for the rear line of Lot 22, which is North 83 deg. 16 min. 08 sec. East. We can dismiss the bearing call (metes) part of the description, in favor of the bearing call of the map record, for two reasons. The call for the record monument (bounds) “along the rear line of Lot 22” in the description is superior to the bearing call (metes) of North 83 deg. 06 min. 08 sec. East in the description. Further, we can rationalize the call bearing of North 83 deg. 06 min. 08 sec. East in the description is a typographical error (blunder) and was intended to be North 83 deg. 16 min. 08 sec. East.
Next, we will compute the full sixth line of the particular description, which is as follows:
“THENCE Southerly along a line parallel to the common line between Lots 21 and 22, and 1.64 feet West of this common line, a distance of 109.00 feet to the North line of Coach Lamp Lane…for corner;”
Again, we have a situation where the distance call (metes) part of the description “109.00 feet” conflicts with, and falls short of, the record monument call (bounds) part of the description “to the North line of Coach Lamp Lane…”. As before, the distance call (metes) must yield to the record monument (bounds) call, so the distance will be extended to reach it, making it 110.9719 feet.
As a side note this is the largest ambiguity we have discovered, up to this point, being a magnitude in dimension of 1.9719 feet. All the other ambiguities, including those found in the map record, have been much smaller and consisted of magnitudes of error in dimension ranging from 0.0060 feet to 0.1979 feet.
Finally, we are going to compute the last two lines of the particular description, which are as follows:
“THENCE in a Westerly direction along the North line of Coach Lamp Lane being a curve to the right, having a radius of 2300.00 feet, a distance of 56.36 feet to…corner, said point being the common corner of Lot 22 and 23;
THENCE continuing along the North line of Coach Lamp Lane, a distance of 8.14 feet to the Point of Beginning.”
There are no conflicts between this part of the current deed description of the subject tract and the mathematical model we have constructed with a magnitude greater than 0.0049 feet.
As you can see, the current deed description for the subject tract is not perfect. We have created a mathematical model of the subdivision, the subject tract is out of, and plotted a mathematical model of its current deed description on top of it. While there are ambiguities in the current deed description of the subject tract, we can have confidence that we have resolved the location of the simultaneously conveyed lines it describes.
So, we have resolved the boundary, right? No, not even close.
In the above part of this example, we resolved the location of the simultaneously conveyed lines and points (map record) which bound the subject tract according to the current deed description for them. This is the northerly line of Lot 22 and Lot 23 and the northerly line of Couch Lamp Lane (record monuments).
We have also resolved the location of the sequentially conveyed lines (metes and bounds) on the easterly and westerly boundary of the subject tract which, according to the current deed description for it, are controlled by simultaneously conveyed lines (map record).
While these sequentially conveyed lines (metes and bounds) in the current deed description for the subject tract are described as being controlled by simultaneously conveyed lines (map record), they are bound by any senior deed lines (record monuments). A sequentially conveyed line is subject to junior and senior rights, whereas a simultaneously conveyed line is not.
It becomes necessary to locate the original deed descriptions for the adjoining properties to determine if the sequentially conveyed lines they describe overlap, or create gaps, with the sequentially conveyed lines described in the current deed of the subject tract.
If we find any ambiguities, between these sequentially conveyed lines, then we would have to resolve those ambiguities, just as we resolved the simultaneously conveyed lines, which did not reach the northerly line of Lot 23, or went beyond the common corner of Lot 22 and Lot 23, or did not go with the northerly line of Lot 22, or did not reach Coach Lamp Lane (record monuments). However, these sequentially conveyed lines would be resolved differently, using case law, like junior and senior rights or the strips and gores doctrine.
Remember, junior and senior rights are created when a tract of land is first severed from the parent tract, in this case Lot 22 and Lot 23. The tract cut out of the parent (Lot 22 and Lot 23) first becomes senior, the remaining lands of the parent (Lot 22 and Lot 23) become junior. The strips and gores doctrine is a rebuttable presumption that the Grantor intended to grant all the lands they owned, instead of leaving tiny strips, which have no purpose, between the adjoining lands and the lands being conveyed.
We will start off with the easterly adjoiner. The conveyance for the original easterly adjoiner was recorded November 7, 1966, under Harris County Clerk’s File No. C404107, a copy of which is below.
We will now plot, in blue, the part of the original easterly adjoining deed description, where it adjoins the subject tract, and incorporate this into our existing mathematical model.
We are doing this to check and see if the adjoining deed describes a common line between it and our current subject tract description. If it does, then we will not have to perform a chain of title for the subject tract, back to the original conveyance, because there is no ambiguity. If the original adjoining deed description does not touch, or overlaps, the boundary of the current deed description for the subject tract, then we will have to perform a chain of title back to the original conveyance of the subject tract, to determine which description is junior and which description is senior. In the case of an overlap (area of record confusion), whichever description is junior would have to yield to the senior description. In the case of a gap (area of record confusion), the strips and gores doctrine might be used to extend the junior description to reach the senior description, depending on certain circumstances.
The first thing to note is, the original easterly adjoining description bears a remarkable resemblance to the current subject tract description, as far as style, although it does not include calls for 1/2 inch iron rods (record monuments) at the corners. This is our first clue that the 1/2 inch iron rods, called for in the current subject tract description, may not be original monuments. In other words, they may be monuments not called for in the original subject tract description. Remember, the professional land surveyor’s job in Texas is to locate the original boundary of Real Property, not locate the boundary of it as it was later described.
The second thing to note is the Grantor for the easterly adjoining description is Pace Setter, Incorporated. This is apparently the same entity that created the Replat of Imperial Valley Sections 1 and 2 map record (see the Replat of Imperial Valley Sections 1 and 2, owner’s certification: “We, Norman R. Dobbins and George J. Prappos, President and Secretary respectively of Pace Setter Inc., owner of the property subdivided in the above and foregoing map of REPLAT OF IMPERIAL VALLEY, section 1&2,…).”
We will begin by plotting the first two lines of the particular description for the easterly adjoiner, which are as follows:
“BEGINNING at the Southeast corner of said Block 4, being the Northwest corner of Coach Lamp Lane and Imperial Valley Drive, and the Southeast corner of said Lot 21;
THENCE in a westerly direction along the North right of way line of Coach Lamp Lane being a curve to the right, have a radius of 2,300.00 feet, a distance of 70.64 feet passing the common corner of Lots 21 and 22 at 69 feet;”
The original easterly adjoining description’s southwest corner is described at the same location as the subject tract description’s southeast corner, so there is no ambiguity.
Next, we will plot the third and fourth lines of the particular description, for the original easterly adjoining description, which are as follows:
“THENCE in a northerly direction parallel to the common lot line between Lots 21 and 22 a distance of 109.00 feet to a point for a corner, said point being in the rear lot line of Lot 22;
THENCE in an easterly direction along the rear lot line of Lots 21 and 22 a distance of 65.34 feet to the Westerly line of Imperial Valley Drive, being the Northeast corner of Lot 21;”
Other than having the same problem as the current subject tract description has, where the call distance of 109.00 feet must be extended to reach the northerly line of Lot 22, the original easterly adjoining description describes the same line and same northerly corner as the current subject tract metes and bounds description does. In other words, there is no ambiguity between the subject tract description and the original easterly adjoining description.
The last step is to plot the original westerly adjoining description and add it to our mathematical model. The conveyance for the original westerly adjoiner was recorded April 25, 1969, under Harris County Clerk’s File No. C902503, a copy of this instrument is below.
The first thing to notice is the Grantor is the same entity as the Grantor for the easterly adjoiner to the subject tract and is the same entity which created the Replat of Imperial Valley Sections 1 and 2 map record.
The original westerly adjoining description to the subject tract is what is known as an aliquot description (or “of” description), because it describes portions of the lots it is composed of by dimension. Nevertheless, it does contain metes and bounds. The bounds being the simultaneously conveyed lines of the map record and the metes describing how large the portions of the lots are.
We are concerned with the portion of Lot 23 described in the westerly adjoining description, since the subject tract description also embraces a portion of Lot 23. That part of the westerly adjoining description is as follows:
“…the…West 49.86 feet of Lot Twenty-three (23), Block Four (4),”
Typically, the court constructs this type of “of” description by drawing the boundary line parallel with the westerly line of Lot 23 and 49.86 feet east of it (see Earl v. Dutour, 181 Cal. 58 cited in Boundary Control and Legal Principles, page 116). We will now compute such a boundary line and add it to our mathematical model in brown.
Oops, as you can see, we have uncovered an ambiguity in the form of an area of record confusion, or overlap, between the current subject tract description and the original westerly adjoining description.
At the common southerly corner of the current subject tract description and the original westerly adjoining description there is hardly an issue because the overlap between the two descriptions is less than one-hundredth of a foot or 0.0077 feet.
However, a line 49.86 feet easterly of the westerly line of Lot 23 strikes the northerly line of Lot 23, 2.7339 feet easterly of the northwest corner of the current subject tract description.
The area of record confusion between these two descriptions is in the form of a triangular strip, with a 0.0077 foot overlap at their southerly corners and a 2.7339 foot overlap at their northerly corners.
To resolve this ambiguity, we will need to assemble a chain of title for the subject tract, to see if it is junior or senior, to the original westerly adjoining description.
The original conveyance for the subject tract was filed for public record November 18, 1966, under Harris County Clerk’s File No. C409917, a copy of which is below.
C409917(original description).pdf
The original description for the subject tract is identical to the current description for the subject tract, except for the calls for the found 1/2 inch iron rods. This means the calls for the found 1/2 inch iron rods must have been inserted into the original subject tract description at some point in its chain of title.
Again, the Grantor for the original subject tract description was Pace Setter Incorporated, so we have now traced back all the conveyances, in this problem, to a common Grantor and the original grants made by them. The date these original grants were filed are as follows:
Subject tract originally recorded November 18, 1966, under Harris County Clerk’s File No. C409917.
Easterly adjoiner originally recorded November 7, 1966, under Harris County Clerk’s File No. C404107.
Westerly adjoiner originally recorded April 25, 1969, under Harris County Clerk’s File No. C902503.
This means the subject tract is senior to the westerly adjoiner because the grant for the subject tract was made first, and the subject tract has superior written title to the area of record confusion (or overlap) identified in this problem.
We are now ready to venture out into the field and try and find the 1-inch iron pipes set by the surveyor who created this subdivision, because those monuments would control the boundaries of the subject tract and adjoining descriptions.
Other considerations and observations
Even though we resolved the westerly boundary line of the subject tract and demonstrated that the subject tract description is senior, we would need to explain the overlap issue with the westerly adjoiner on any survey that we prepare for the subject tract. This could take the form of a Surveyor’s Report, attached to the survey, or the issue could be graphically depicted on the face of the survey itself.
The original description of the subject tract does not contain calls to 1/2 inch iron rods. It follows that even if we found those 1/2 inch iron rods in the field, called for in the most recent conveyance of the subject tract, they would not control the location of the subject tract boundaries because those monuments do not define the location of the boundaries of the subject tract as originally described. This does not mean we can’t use the location of the 1/2 inch iron rods to support the words of the original conveyance of the subject tract, but we can’t use the location of those 1/2 inch iron rods to refute them. This is because the 1/2 inch iron rods would be uncalled for monuments (monuments not called for in the original description of the subject tract) and extrinsic evidence (evidence outside the original description of the subject tract).
The original conveyance of the subject tract (filed November 18, 1966) and the original conveyance for the easterly adjoiner (filed November 7, 1966) have remarkably similar descriptions, as far as form and style, and they describe lines common to both original descriptions. These descriptions were probably written by the same scrivener at Pace Setter, Incorporated (the common Grantor).
However, the original westerly adjoining description was recorded approximately three years after than the original subject tract description and the original easterly adjoining description were recorded. Also the westerly adjoining description is an aliquot (“of”) description, rather than a complete metes and bounds description, like the original subject tract description and the original easterly adjoining description. It stands to reason the scrivener, who wrote the original subject tract description and the original easterly adjoining description, was replaced with a new scrivener sometime between November 18, 1966, and April 25, 1969. The new scrivener, who wrote the original westerly adjoining description, was obviously not as careful as the old scrivener and created the overlap issue we had to resolve in the above problem. If we were to attempt to survey a fractional lot description within this subdivision again, then we would need to adjust the price we charge to do so, because of the land mines left by this new scrivener.
As far as the overlap issue goes, let us consider the remedy if there were a gap. In other words, we found a gap of 2.7339 feet between the original subject tract description and the original westerly adjoining description, instead of an overlap of 2.7339 feet.
If the junior and senior rights for the original subject tract description and the westerly adjoining description remained the same, then the westerly adjoiner would have superior written title to the land within that gap. This is because, as was stated earlier, there is a rebuttable presumption, under the strips and gores doctrine, Pace Setter Incorporated intended to convey all the land they owned, up to the boundary of the senior subject tract, and not leave a triangular unsold strip between the subject tact and the westerly adjoiner.
Chapter 2 Content
Example 2
7452 Finch Street, Houston, Texas 77028
A client comes to us and asks that we survey a property at 7452 Finch Street, Houston, Texas 77028, because they want to purchase it. The current tax report
and current tax map
are sent to them, to confirm that this is the property they want the survey performed on. Once a written contract is executed, the next step is to find the current deed, describing this Real Property, at the Harris County Clerk’s office. A copy of this instrument is shown below.
The description in the current deed, recorded July 26, 1999, reads as follows.
“The North One Hundred Thirty-four (134) feet of Lot Seventy (70), of ROSEDALE GARDENS, SECTION ONE (1), a subdivision in Harris County, Texas, according to the map or plat thereof recorded in Volume 15, Page 31, of the Map Records of Harris County, Texas.”
The next step is to examine the map record, called for in the description, a copy of which is below.
The first thing to notice is the map record is titled ROSEDALE GARDENS, not Rosedale Gardens Section One, and was recorded October 26, 1938. As in the previous example, we will need to build a mathematical model of the map record, in the general vicinity of the subject tract, to resolve the simultaneously conveyed boundary lines of the current subject tract description.
This map record contains little information, is missing information, and contains information which is difficult to read. An examination of the dedication instrument (Volume 998, Page 454 of the Deed Records of Harris County) listed on the map record is of little help.
We can assume the radius distance for the curve in the subject tract is the same as the radius distance shown on the curve across Finch Street (Hamman Drive on the map record), to the north of the subject lot. Assuming this, we can compute the radius point for the curve on the subject tract by offsetting the westerly line of Elbert Street the radius distance and offsetting the southerly line of Finch Street the radius distance, to create an intersection.
The bearing of South 89 degrees 33 minutes West, shown along the southerly boundary of the map record, and the bearing of East (shown as E on the north line of the map record), indicated on the map record for the south line of Finch Street, does not yield the lot dimensions shown on the map record, traveling westerly from the subject tract, by a few hundredths of a foot. In addition, typically we would presume the bearing between Lot 70 and Lot 71 would be East or possibly North 89 degrees, 33 minutes East, but using either of these bearings does not satisfy the distance dimensions shown on the map record for Lot 70 and Lot 71.
We know the bearing is indicated as North along the easterly side of Lot 70 (shown as N on the westerly line of the map record), and we know the bearing is East along the northerly side of Lot 70 (as explained above), so these ambiguities identified in the map record do not prevent us from creating a mathematical model that satisfies the distances and bearings indicated on the map record for Lot 70 and Lot 71.
In the resulting mathematical model below, the lots lines and computed bearings and distances are shown in red, the calls that were dismissed are shown in black. All the dimensions shown are rounded to the nearest one hundredth of a foot.
Next, we will compute the portion of Lot 70 described in the current deed of the subject tract which states:
“The North One Hundred Thirty-four (134) feet of Lot Seventy (70)…”
We will now construct the southerly boundary line of the subject tract parallel with and 134 feet southerly of the northerly line of Lot 70. Once this line is located, it will define the rest of the boundaries for the subject tract.
All the boundaries of the subject tract and its dimensions, as described in the current deed for it, are shown in green and added to our mathematical model shown below.
The most recent conveyance for the southerly adjoiner to the subject tract is shown below and was recorded June 9, 2004. We must examine it to see if it conflicts with the current description for the subject tract. This is because the southerly boundary of the most recent conveyance of the subject tract, although described as being controlled by a simultaneously conveyed boundary line in the map record, is a sequentially conveyed line and subject to junior and senior rights.
We are only concerned with the portion of Lot 70, described in the southerly adjoining conveyance to the subject tract, which is as follows:
“The South 76 feet of Lot Seventy (70)…”
We will now construct the northerly boundary line, of the southerly adjoiner to the subject tract, parallel with and 76 feet north of the southerly line of Lot 70. Locating this line will also define the remaining boundaries, for the portion of Lot 70, described as being part of the most current conveyance for southerly adjoiner to the subject tract. We will then add the boundaries and dimensions in blue, as described in the most current conveyance for the southerly adjoiner, to our mathematical model. The results of which are shown below.
There is no conflict between the current subject tract description and the current south adjoining description, at their common westerly corner. However, we do find a minor area of record confusion, in the form of an overlap, at their common easterly corners of approximately 0.06 feet. If we want to resolve this problem, we will need to perform a chain of title, on the subject tract and the south adjoining tract, to establish which is junior and which is senior. This would tell us which description has superior written title to the area of record confusion.
For the purposes of this example, we will ignore the minor overlap issue and go to the field and locate evidence of the boundaries in question. The map record does not tell us what, if any, monuments were set to define it on the ground. An examination of the map record dedication instrument (Volume 998, Page 454 of the Deed Records of Harris County), listed on the map record, again, is of little help and only states the following:
“This is to certify that I, B.O. Durst, a Civil Engineer, have surveyed and platted the above subdivision and all corners are properly marked with corner stakes and this plat is a true and correct copy of that survey and plat made by me.”
We do not know what Durst meant when he stated, “all the corners are marked” and he could have been only referring to the extreme corners of the subdivision. Further, Durst does not state what kind of “stakes” he set.
Since the map record was recorded October 14, 1938, we can speculate that Durst would have been using scrap iron pipe to mark the corners he did set. This was customary practice in Texas, because iron pipes were valuable during this period, being just prior to World War II. Often, the land surveyors at the time would buy a scrap length of pipe, take it out to the field, and then crimp it. Once the pipe was crimped, they would break off a piece, by bending it up and down until it separated from the rest of the pipe length. This created a distinctive pinch on the top and bottom of the resulting piece of pipe which was used as a stake. Regardless, we will be looking to find stakes that are contemporaneous with the creation of the subdivision because those would presumably control the boundaries of the lands within it.
Once the initial field work is completed, we will superimpose the evidence we found onto the mathematical model we have constructed to see if it supports the work we have done so far. If it does not, we will need to adjust our mathematical model to reflect the location of the evidence we found in the field. Below is a drawing which combines the pertinent field evidence we found and the mathematical model we have created so far.
The first thing to notice is, while we do not know if the monuments we found are contemporaneous with the creation of the subdivision map, the old pinch top pipes we did find, along with the 1/2 inch iron rod we found, appear to support the mathematical model we constructed.
There seems little doubt as to the location of ROSEDALE GARDENS subdivision recorded in Volume 15, Page 31, of the Map Records of Harris County, Texas.
However, the existing house on the property is protruding into the street right-of-way 12.8 feet and the existing fencing is protruding even further into it. The house looks to be quite old from the exterior, and a check of the full tax report for the subject tract indicates it was constructed in 1949. See the tax report below.
It does not seem possible that somebody would have built the house, only eleven years after the creation of the subdivision, in the street right-of-way. Something must be wrong, but what could it be?
The title commitment provided by the buyer, the most recent conveyance of the subject tract, and the southerly adjoiner all agree the lands in question are out of ROSEDALE GARDENS subdivision recorded in Volume 15, Page 31, of the Map Records of Harris County, Texas, which we have apparently located beyond a reasonable doubt.
The only thing to do is to run a chain of title on the subject tract, to see if it gives us any hint as to how this condition may have come about.
The most recent conveyance for the subject tract (Harris County Clerk’s File No. T864865) lists Elton Neal Prestridge as the Grantor. A search of the Public Record yields the following.
Elton Neal Prestridge was conveyed the subject tract, under Harris County Clerk’s File No. K741142, by William Henry Deal and Julia Teresa Deal. This conveyance was recorded for public record September 18, 1986. A copy of this instrument is below.
It contains the same description as the current deed for the subject tract and there is no help there.
William Henry Deal and Julia Teresa Deal were conveyed a Release of Lien, under Harris County Clerk’s File No. D952002 recorded 8/17/1973, for a Deed of Trust executed July 26, 1949, recorded in Volume 1549, Page 606 of the Deed of Trust or Mortgage Records (around the same time the house was built). A copy of this instrument is below.
The description for the subject tract, in this instrument, is different from the other descriptions we have examined and describes the subject tract as follows:
“Being the North 134’ of Lot 70 of ROSEDALE GARDENS, Section 1, an Addition to the City of Houston, in Harris County, Texas, according to the replat thereof filed for record in the Office of the County Clerk of said County on June 21, 1949, under Clerk’s File No. 638509.”
ROSEDALE GARDENS was recorded October 14, 1938, and it is not a “replat.” Further, there is no Harris County Clerk’s File No. 638509.
If we examine ROSEDALE GARDENS, recorded in Volume 15, Page 31, of the Map Records of Harris County, Texas, there is a number on it, just above the Dedication & Map note which is 180986.
Apparently, the Harris County Clerk was sequentially numbering all the instruments being recorded, even though they do not have an index for those numbers. All we must do is find the instrument with the sequential number 638509 in the map records to find the instrument this conveyance is referring to. We know from the description in Harris County Clerk’s File No. D952002 that the “replat” must have been recorded around June 21, 1949.
After making a few good guesses, we track the number 638509 to Volume 30, Page 71 of the Map Record of Harris County, Texas. A copy of which is below.
You will notice the number 638509 stamped in the lower middle part of the map, along with the recording date of June 21, 1949. This map record is titled “Replat of Lots 47, 48 & 70 ROSEDALE GARDENS SECTION No. 1” and shows that Lot 70 was replatted to form a 90-degree intersection of the streets adjoining it, instead of a curved intersection, like the original map record of ROSEDALE GARDENS, recorded in Volume 15, Page 31 of the Map Records of Harris County, Texas.
The Deed of Trust executed July 26, 1949, and recorded in Volume 1549, Page 606 of the Deed of Trust or Mortgage Records, was executed just after the “Replat of Lots 47, 48 & 70 ROSEDALE GARDENS SECTION No. 1” map record was recorded June 21, 1949. In other words, the replat ROSEDALE GARDENS map record must have been executed in anticipation of the sale of part of Lot 70 property to William Henry Deal and Julia Teresa Deal.
It seems obvious that when William Henry Deal and Julia Teresa Deal conveyed the subject tract to Elton Neal Prestridge, September 18, 1986 under Harris County Clerk’s File No. K741142, the scrivener could not figure out what the number 638509 meant in the deed of trust going into them and simply used the volume and page for the original ROSEDALE GARDENS subdivision map record.
It appears something similar happened in the chain of title for the description of the southerly adjoiner (the other part of Lot 70). A quick check of the chain of title for the southerly adjoiner reveals the following description in Harris County Clerk’s File No. D906795:
“the South seventy-six (76’) feet of Lot Seventy (70) of ROSEDALE GARDENS SECTION ONE (1), an addition to the City of Houston, Harris County, Texas, according to the Replat thereof filed in the office of the County Clerk of said County on June 21st, 1949, under Clerk’s File No. 638509…”
whereas the current description for the southerly adjoiner, in Harris County Clerk’s File No. X677208, reads as follows:
“The South 76 feet of Lot Seventy (70)…ROSEDALE GARDENS…recorded in Volume 15, Page 31 of the Map Records of Harris County, Texas.”
We will make corrections to our mathematical model, based on the Replat of Lots 47, 48 & 70 ROSEDALE GARDENS SECTION No. 1 recorded in Volume 30, Page 71 of the Map Records of Harris County, Texas, the results of which are below.
There are several things to notice. By using the replat dimensions we resolved the minor overlap issue with the southerly adjoiner and caused the 1-inch pinch top pipe we found, near the southeast corner of Lot 71, to fall on the newly computed corner. The existing house on the subject tract, built in 1949, is no longer in the street right-of-way. The fences and utilities now conform with the streets and subject tract boundaries. We have resolved all the ambiguities concerning the subject tract and we are ready to complete our survey.
Additional observations and remarks
The tax report for the subject tract shows the land being taxed based on an area of 18,910 square feet, whereas we are finding 21,439 square feet of land. It stands to reason that the replat never made it to the Harris County Appraisal District and this seems certain since the tax map indicates the curved street intersection of the original map record and not the 90-degree street intersection the replat indicates. This means the current owner of the subject tract, and their predecessors in title, have probably not been paying taxes on the lands the replat embraces since 1949.
It would be prudent to write a Surveyor’s Report and attach it to our completed survey, to explain why we are changing the current deed description for the subject tract. It will also be necessary to explain to the client that the subject tract is not being properly taxed. This could be accomplished by adding that explanation to our Surveyor’s Report.
Chapter 3 Content
Example 3
A potential client comes to us and asks if we could survey the property in Harris County Appraisal District Real Property Account Information No. 0110180000030. The potential client explains they purchased the property from the Crosby Independent School District, at a tax auction, but are not sure where it is located.
A copy of the current tax report for it is shown below.
A copy of the current tax map is shown below.
The potential client executes a written contract with us, to perform a survey of it, and the next step is to find the current deed, describing this Real Property, at the Harris County Clerk’s office. A copy of the current deed for the subject property is shown below.
This instrument provides a general description of the subject property, but refers to another instrument, Harris County Clerk’s File No. U340962, for a particular description of it. A copy of this instrument is shown below.
This instrument states the subject tract is part of Lot 8 Block 18 of the Town of Crosby recorded in Volume 1-A, Page 109 of the Map Records of Harris County, Texas, recorded March 11, 1905. A copy of this map record is shown below.
The first thing to notice is the metes and bounds description in U340962 does not resemble the land depicted on the tax map. It appears the tax map shows a piece of land missing from the land described in Harris County Clerk’s File U340962. Obviously, something is wrong with either the tax map or the description of the property in Harris County Clerk’s File No. 20140481454.
Something else to notice is, according to Volume 1A, Page 109 of the Map Records of Harris County, Texas, the bearing along the northwesterly line and the southeasterly line of Lot 8 Block 18 is North 49 degrees East. However, the bearing along the southwesterly line and the northeasterly line of Lot 8 Block 18 is unclear and could be North 41 degrees West or North 43 degrees 30 minutes West. In other words, Lot 8 Block 18 may not be a rectangle and could be a parallelogram, or even something else.
It is worth noting that some of the original corners, and block corners, of this subdivision were apparently set with bricks, stones, stone mounds, trees, P.O.s (whatever that means) or coupling pins (whatever that means). Many of the corners in the subdivision are simply depicted as dots, indicating something was set to mark them but we do not know what. About 1/2 of the corners in this subdivision depict nothing at them, indicating nothing was ever set to mark them.
As in the previous examples, we will begin by making a mathematical model of the general area of the subdivision where the subject tract is located. Even though the subdivision map is vague, hard to read, and appears ambiguous, we will need to do this for several reasons, including to try and determine the bearings and distances that compose Lot 8, Block 18. The result of this effort is shown below.
In Texas, the court assumes bearings have more dignity than distances, but this is not necessarily true in other jurisdictions. After making a few presumptions regarding intent (which are shown on the mathematical model), we have been able to construct a mathematical model of the map record that satisfies most of the dimensions shown on it.
The lot lines, as well as the bearings and the distances derived, are shown in red. The called dimensions, where they differ from our computations, are shown in black. As you can see, where there are differences between the map record calls and what we have computed, these ambiguities are minor, the largest of which is less than 1 foot. These ambiguities can be attributed to the use of a sine table, the original scrivener created the map record with, or minor blunders. Contrary to the first impression we had of this map record, it stands to reason that Land Commissioner C.C. Gibbs and J.O. Ross, who surveyed and staked the subdivision in 1905, were no slouches, at least in the office.
It is interesting to note that Lot 8 Block 18 is not a rectangle, or a parallelogram, but rather an irregular pentagon.
The next step is to compute the description of the subject tract, in Harris County Clerk’s File No. U340962, and add it to our mathematical model in green. See the results below.
The southwest boundary line and the southeast boundary line of the subject tract are simultaneously (map record) conveyed lines because they are bounded by the subdivision map lines. However, the northeast boundary line and the northwest boundary line of the subject tract are sequentially conveyed lines, controlled by simultaneously conveyed lines.
This is demonstrated in the fourth and fifth lines of the description for the subject tract, in Harris County Clerk’s File No. U340962, which are as follows:
“THENCE Easterly, parallel to Fifth Street a distance of 100 feet for corner; THENCE Southerly parallel to Avenue B, a distance of 80 feet…”
This means we must examine the adjoining property descriptions, abutting those sequentially conveyed lines, to make sure they describe lines common with the subject tract description. A good place to start would be to examine the description in the conveyance for the subject tract, recorded in Volume 500, Page 169 of the Deed Records of Harris County, Texas, mentioned in the last paragraph of the description of the subject tract in Harris County Clerk’s File No. U340962. A copy of that instrument is shown below.
Volume 500, Page 169 of the Deed Records of Harris County, Texas, gives us some hint as to the junior and senior status of the northwest and northeast lines of the subject tract and is apparently the original description for it. Note the following wording in the description for the subject tract in Volume 500, Page 169 of the Deed Records of Harris County:
“Thence easterly on a line parallel with 5th Street a distance of 100 feet to a corner on the west line of C.A. Gustafson Jr.’s part of lot No. 8 in block no. 18. Thence along said west line a distance of 80 feet…”
The fact that J E Gustafson was the Grantor for the subject tract, in Volume 500, Page 169 of the
Deed Records of Harris County, suggests the northeasterly line of the subject tract is bounded by a senior grant J E Gustafson made to his apparent relative C.A. Gustafson Jr.
Since the description of the subject tract in Volume 500, Page 169 of the Deed Records of Harris County only states the northwesterly line of the subject tract is “parallel with 5th Street”, the subject tract might be senior to the northwesterly adjoiner.
Based on these presumptions, we will start by examining the current description for the northwesterly adjoiner, shown as tract 8B on the tax map. Below is a copy of the tax report for this property.
The owner of the northwesterly adjoiner is indicated as being Harris County on this tax report, so it will be almost impossible to find a deed for it using the Grantor/Grantee index. Harris County is the owner of many tracts of land in Harris County so a search of conveyances into that entity will yield thousands of results. However, there is a way to check the previous owners of the northwesterly adjoiner by querying the current Harris County Appraisal District tax report. This query results in the following information below.
PURKHISER SAM C & LILLIAN are indicated as being the last individuals owning the northwesterly adjoiner, so the next step is to check for conveyances from them, to Harris County, using the Harris County Grantor/Grantee index. We find a conveyance for the northwesterly adjoiner, to Harris County, under Harris County Clerk’s File No. Z181112, recorded March 27, 2006. A copy of this conveyance is shown below.
The first thing to notice is, according to the drawing on page 7 of this instrument, we can be fairly certain what happened to the piece missing from the subject tract according to the tax map. It must have been conveyed to Harris County, or some other governmental entity, for the widening of FM 2100.
Something else to notice is the northwesterly adjoiner was conveyed to Harris County in two pieces. Since the northwesterly adjoiner and the subject tract are the only lands, shown on the tax map, sticking out into FM 2100 along the southwesterly edge of the remainder of Lot 8 Block 18, there appears to be something going on with the subject tract we have yet to discover.
Unfortunately, the northwesterly adjoiner descriptions in this instrument do not give us a hint as to how far the southeast boundaries of it lie from the northwest line of Fifth Street (A.K.A. East Wahl Street) and commence from a distant corner of a parcel of land to the north.
However, if we look carefully, these two descriptions call for subject tract boundary line. The lines in the descriptions, for the northwesterly adjoiner, along the northwest line of the subject tract are as follows on page 5, starting with paragraph 3 of Harris County Clerk’s File No. Z181112:
“THENCE, South 32º 32’ 47” East, along said proposed east right-of-way line of F.M. 2100, a distance of 57.39 feet to a 5/8 inch iron rod with (TxDOT) aluminum disk set on the south line of said 0.2 of one acre tract (part of Lot 8 of Block 18), conveyed to Cecil Dean Soffes and wife, Patrica Soffes, by deed dated July 1, 2003, recorded under Harris County Clerk’s File No. W796954 of the Deed Records of Harris County, Texas;
THENCE, South 46º 38’ 19” West, along the south line of said 0.2 of one acre tract and the north line of said 0.2 of one acre tract (part of Lot 8 of Block 18), a distance of 53.93 feet to the existing east right-of-way line of F.M. 2100 (80 feet wide), being the northwest corner of said 0.2 of one acre tract (part of Lot 8 of Block 18) and the southwest corner of said 0.2 acre tract;”
On page 10, starting with paragraph 3 of Harris County Clerk’s File No. Z181112:
“Thence, South 43º 00’ 04” East, along the east line of said 0.2 of one acre tract and the west line of said 0.527 of one acre tract, a distance of 100.00 feet to the southeast corner of said 0.2 of one acre tract, being the northeast corner of that certain tract of land described as 0.2 of one acre tract (part of Lot 8 of Block 18), conveyed to Cecil Dean Soffes and wife, Patricia Soffes, by deed dated July 1, 2003, recorded under Harris County Clerk’s File No. W796954 of the Deed Records of Harris County, Texas;
Thence, South 46º 38’ 19” West, along the south line of said 0.2 of one acre tract and the north line of said 0.2 of one acre tract (part of Lot 8 of Block 18), a distance of 46.07 feet to a 5/8 inch iron rod with (TxDOT) aluminum disk set on the proposed east right-of-way line of F.M. 2100;”
Cecil Dean Soffes and Patrica Soffes, listed as the owners of the subject tract above, were probably meant to be Keith A. Soffes and Callie R. Soffes who were listed as defendants in a tax lawsuit in the current subject tract deed recorded in Harris County Clerk’s File No. 20140481454.
The land surveyor who wrote the two descriptions for the northwesterly adjoiner also mistakenly cited the deed for the subject tract, which is not Harris County Clerk’s File No. W796954 (a conveyance for Lot 2 Block 27 of the Town of Crosby subdivision) but Harris County Clerk’s File No. U340962 (the instrument cited by the current deed of the subject tract as containing the particular description for it). Despite these mistakes, it seems clear what the intent of the northwesterly adjoiner descriptions were, and that is to go to the subject tract line.
Rather than try and plot the two descriptions for the northwesterly adjoiner conveyance to Harris County, we will try and find the conveyance, out of the subject tract, for the widening of F.M. 2100 indicated by them. This should give us the dimensions and bearings, from Fifth Street (A.K.A. East Wahl Street), so we can see if it agrees with the subject tract deed location we have already plotted on our mathematical model.
After a brief search of the Grantor/Grantee indexes, we find a grant from Keith Soffes and Callie Soffes to the State of Texas, under Harris County Clerk’s File No. 20070403516, recorded July 2, 2007, a copy of which is below.
This conveyance, from Keith Soffes and Callie Soffes to the State of Texas, is for the entire subject tract, although it describes it as being two pieces. Page 13 of this instrument states:
“The property described above relates to a “whole” property acquisition, so that there is no remainder or remaining property owned by the Grantors that was originally out of or a part of the property described above. Therefore, there are no access rights retained or remaining in Grantors, their successors and assigns, out of or relating to the property described above. All access rights associated with all of the above property are owned and retained by the State, with the access denial line being co-existent with the Right of Way boundary line.”
The deed to our client, Harris County Clerk’s File No. 20140481454, for the subject tract was recorded October 24, 2014.
Apparently, the deed from Keith Soffes and Callie Soffes to the State of Texas, recorded in Harris County Clerk’s File No. 20070403516 on July 2, 2007, was presented to the Harris County Appraisal District, but the clerk failed to read the entire instrument and thought there was a piece of the original subject tract remaining. This explains why the tax map shows a piece missing from the subject tract as described in Harris County Clerk’s File No. U340962.
Keith Soffes and Callie Soffes must have thought the Harris County Appraisal District was crazy when they sent them tax bills between 2007 (when they sold the land to the State of Texas) and 2014 (when the land was sold to our client because of a tax lawsuit under Harris County Clerk’s File No. 20140481454).
This revelation brings up several issues. All the previous work we have done, to resolve the boundaries of the subject tract, is irrelevant. The subject tract is entirely owned by the State of Texas by virtue of Harris County Clerk’s File No. 20070403516. Harris County has no authority to convey lands owned by the State of Texas, even though they are both governmental entities. This means Harris County Clerk’s File No. 20140481454 is fraudulent.
We will now have to try and collect our fee, inform our client there is no land to be surveyed, and explain to them they were defrauded by Harris County due to an error, probably made by a clerk at the Harris County Appraisal District.
Chapter 4 Content
Example 4
A land speculator client of ours comes to us and asks that we survey a tract of land located at 5202 Bellaire Boulevard, Houston, Texas. They tell us they are planning to purchase it and provide us with a title commitment which has been issued for the transaction.
We subsequently provide our potential client with a tax map and tax report for the subject tract, along with a proposal for service. The tax map and tax report for the subject tract are shown below.
The client executes a contract with us, and we begin work on it. The first step is to obtain the current deed for the subject tract, to make sure we are looking at the right description for the land described in the provided title commitment.
The provided title commitment has a metes and bounds description for the subject tract and we locate the following instrument at the Harris County Clerk’s office, recorded August 14, 2009.
The metes and bounds description in this instrument is identical to the metes and bounds description for the subject tract in the provided title commitment.
The metes and bounds description, in Harris County Clerk’s File No. 20090369969, states it is out of “LOT 25, BLOCK 46 OF TOWN OF BELLAIRE, A SUBDIVISION IN HARRIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN VOLUME 3, PAGE 17 OF THE MAP RECORDS OF HARRIS COUNTY, TEXAS,…”
As in the previous examples, we will need to build a mathematical model of the map record, in the general area where the subject tract is located.
The map record this instrument refers to was recorded on March 18, 1910. A copy of this map record is shown below.
V3PG17MRHC.pdf
The map record, in Volume 3, Page 17 of the Map Records of Harris County, Texas, provides no bearings. For the purposes of our mathematical model, we will assume the westerly and easterly boundaries of the map record bear North/South and the northerly and southerly boundaries bear East/West. This is a rebuttable presumption and if we find evidence in the field, contrary to what we have assumed, we will adopt the bearings indicated by that evidence. Another problem with this map record is it provides very few distances, and none for Lot 25 in Block 46. Based on our assumed bearings, we can locate the southeast corner of Lot 25 Block 46 easily enough and we know the bearings along the southerly and easterly line of the lot. However, we do not know the distances for those lines, and we do not know the bearing or distance for the northwesterly line of Lot 25 Block 46 either.
This map record appears to show the edge of Richmond Avenue (A.K.A. Bissonnet Street) coincident with the northwest corner of Lot 8 Block 3. It also seems to suggest the northwest corner of Lot 1 Block 25 and the southeast corner of Lot 9 Block 24 touch the same roadway. We will attempt to build a mathematical model to see if this is true.
bellaire5.pdf
Unfortunately, the results are not conclusive. See a drawing of the model above; the lot and block lines being in red and the attempt to establish the location of Richmond Avenue (A.K.A. Bissonnet Street) in blue.
We need some help, so we are going to try and find another conveyance in Block 46 to see how this situation was managed. There is a tract of land composed of portions of lots within Block 46, just north of the subject tract, across Richmond Avenue (A.K.A. Bissonnet Street) which includes a piece which touches the roadway. The tax map indicates an address for this parcel and, using this, we can run a search for a tax report for that property which lists the current owner’s name. Using that name, we can run a search in the Grantor/Grantee index for Harris County and find the current record instrument, describing that property, which is Harris County Clerk’s File No. Y571012 shown below.
Y571012.pdf
Before we even get to the particular descriptions of these lands, you should notice something strange about the general descriptions in this instrument. The Tract 1 general description states “…Lots One (1) through Five (5) inclusive in Block Forty-six (46) of the TOWN OF BELLAIRE according to the plat thereof recorded in Volume 3, Page 59 of the Map Records in Harris County, Texas,…”
The map record of the Town of Bellaire we have been looking at is recorded in Volume 3, Page 17 of the Map Records of Harris County, Texas. We will need to examine the map record in Volume 3, Page 59 of the Map Records of Harris County, Texas, to see what is going on here. Volume 3, Page 59 of the Map Records of Harris County, Texas was recorded March 15, 1911, and a copy of it is shown below.
V3PG59MRHC.pdf
The first thing to notice is the second paragraph of the owner dedication, which states:
“This map is executed in lieu of the Map and accompanying certificate of the town of Bellaire recorded of date March 18, 1910 in plat book 3 at page 17 of the Map Records of said Harris County which said former map and certificate are hereby withdrawn and cancelled and annulled.”
This means the call for Volume 3, Page 17 of the Map Records of Harris County, Texas, in the description of the subject tract, in the provided title commitment and recorded in Harris County Clerk’s File No. 20090369969, must be erroneous.
We make a note that if we ever survey something in the Town of Bellaire subdivision again, we should use Volume 3, Page 59 of the Map Records of Harris County, Texas, instead of Volume 3, Page 17 of the Map Records of Harris County, Texas. This will save us time and effort in the future. Thankfully, we can save part of the mathematical model we have already created using the latter, incorrect, map record.
Even though some of the dimensions shown in Volume 3, Page 59 of the Map Records of Harris County, Texas, are unreadable, this map record should provide us with enough information to build a new mathematical model of Lot 25 Block 46 which we can rely on.
The distances for Lot 12 and Lot 13, Block 35 can be read, so we will resolve those and see if we can make our mathematical model work, within reason, using those. If we could not read this instrument with sufficient confidence, we could always go to the Harris County Clerk’s archive office and view the original document. See a copy of the resulting mathematical model below. The call distances, where they differ from our computations, are shown in black.
bellaire7.pdf
Now we can finally try and plot the description in the current deed (Harris County Clerk’s File No. 20090369969), and title commitment, for the subject property and add it to our mathematical model.
The description for subject tract, in the current deed for it, is as follows:
“ALL THAT CERTAIN TRACT OR PARCEL OF LAND CONTAINING 15,723 SQUARE FEET, 0.361 ACRES OUT OF LOT 25, BLOCK 46 OF TOWN OF BELLAIRE, A SUBDIVISION IN HARRIS COUNTY, TEXAS, ACCORDING TO THE MAP OR PLAT THEREOF, RECORDED IN VOLUME 3, PAGE 17 OF THE MAP RECORDS OF HARRIS COUNTY, TEXAS, SAID 0.361 ACRES OF LAND BEING MORE PARTCIUARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH IRON ROD FOUND FOR THE SOUTHEAST CORNER OF SAID LOT 25, BLOCK 46, SAID POINT BEING THE INTERSECTION OF THE NORTH RIGHT-OF-WAY LINE OF BELLAIRE BOULEVARD (BASED ON 250 FOOT WIDTH) AND THE WEST RIGHT-OF-WAY LINE OF FIFTH STREET (BASED ON 60.00 FOOT WIDTH);
THENCE WEST ALONG THE SOUTH LINE OF SAID LOT 25, THE NORTH LINE OF BELLAIRE BOULEVARD, A DISTANCE OF 142.11 FEET TO A 1/2 INCH IRON ROD FOUND;
THENCE NORTH 25 DEGREES 32 MINUTES 29 SECONDS WEST, A DISTANCE OF 23.40 FEET TO A 1/2 INCH IRON ROD FOUND;
THENCE NORTH 22 DEGREES 43 MINUTES 14 SECONDS WEST, A DISTANCE ORF 17.19 FEET TO A 1/2 INCH IRON ROD FOUND;
THENCE NORTH 23 DEGREES 38 MINUTES 20 SECOND EAST, A DISTANCE OF 29.30 FEET TO A 1/2 INCH IRON ROD FOUND IN THE SOUTHERLY RIGHT-OF-WAY LINE OF BISSONNET AVENUE;
THENCE NORTH 60 DEGREES 48 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF BISSONNET AVENUE, A DISTANCE OF 168.50 FEET TO A 1/2 INCH IRON PIPE FOUND AT THE INTERSECTION OF THE SOUTHERLY LINE OF BISSONNET AVENUE AND THE EASTERLY LINE OF FIFTH STREET;
THENCE SOUTH ALONG THE WEST LINE OF FIFTH STREET, A DISTANCE OF 146.01 FEET TO THE POINT OF BEGINNING OF THE HEREIN DESCRIBED TRACT OF LAND AND CONTAINING 0.361 ACRES OF LAND.
SAVE AND EXCEPT:
(DEED TO CITY OF BELLAIRE, TEXAS, NO RECORDING INFORMATION FOUND)
ALL THAT CERTAIN TRACT OR PARCEL OF LAND CONTAING 63.00 SQUARE FEET OF LAND IN THE WILLIAMS J. BROWN SURVEY, ABSTRACT NO. 132, HARRIS COUNTY, TEXAS; SAID 63.00 FEET OF LAND BEING OUT OF LOT 25, BLOCK 46 TOWN OF BELLARIE RECORDED IN VOLUME 3, PAGE 59, HARRIS COUNTY MAP RECORDS, AND BEING OUT OF A CERTAIN TRACT OF LAND DESCRIBED IN DEED DATED NOVEMBER 20, 1983, FROM RAYMOND W. KING, TRESTEE TO ROBERT L. RICHARDSON, ET UX, RECORDED IN HARRIS COUNTY CERLK’S FILE NO. M847076 AND FILM CODE NO. 189-76-1461, OFFICIAL PUBLIC RECORDS OF REAL PROPERTY; SAID 63.00 FEET OF LAND BEING MORE PARTICULARLY DESCRIBED BY METES AND BOUNDS AS FOLLOWS:
BEGINNING AT A 1/2 INCH IRON PIPE FOUND AT THE INTERSECTION OF THE SOUTHEASTERLY LINE OF BISSONNET STREET (60 FEET WIDE) AND THE WEST LINE OF FIFTH STREET (60 FEET WIDE) SAID 1 INCH IRON IPE BEING THE NORTHEAST CORNER OF SAID LOT 25 AND THE NORTHEAST CORNER OF THE HEREIN DESCRIBED TRACT;
THENCE SOUTH, ALONG THE WEST LINE OF FIFTH STREET, 12.00 FEET TO A 5/8 INCH IRON ROD FOUND FOR THE SOUTHEAST CORNER OF THE HEREIN DESCIRBED TRACT;
THENCE NORTH 59 DEGREES 36 MINUTES 00 SECTION WEST, A DISTANCE OF 12.14 FEET TO A 5/8 INCH IRON ROD FOUND 1 THE SOUTHEASTERLY LINE OF BISSONNET STREET FOR THE WEST CORNER OF THE HEREIN DESCRIBED TRACT;
THENCE NORTH 60 DEGREES 48 MINUTES 00 SECONDS EAST, ALONG THE SOUTHEASTERLY LINE OF BISSONNET STREET, 12.00 FEET TO THE POINT OF BEGINNING AND CONTAINING 63.00 SQUARE FEET OF LAND
.
SAID LEGAL DESCRIPTION CONTAINING A NET ACREAGE OF 0.359 ACRES (15,660 SQUARE FEET).”
This description is obviously full of errors and omissions and contains numerous ambiguities. For example, it calls for Volume 3, Page 17 of the map records in the beginning general description but then the save and except tract general description calls for Volume 3, Page 59 of the map records (as previously discussed).
We will attempt to compute the current deed description for the subject tract in Harris County Clerk’s File No. 20090369969 and plot it on our existing mathematical model in brown. We will highlight our computed boundaries of Lot 25 Block 46 in green, according to Volume 3, Page 59 of the Map Records of Harris County, so that we can differentiate it from the current deed description of the subject tract we are attempting to plot. Since there are multiple ambiguities between these two instruments, we will assume the current deed description for the subject tract in Harris County Clerk’s File No. 20090369969 is located where the tax map indicates it is located. See the results below.
bellaire10.pdf
Our mathematical model resembles the tax map, but the results illustrate several issues. If the tax map, the description in the provided title commitment, and the description recorded in Harris County Clerk’s File No. 20090369969 are to be believed, then the current owner of the subject tract (or their predecessors in title) must have had a piece of Bellaire Boulevard abandoned by the City of Bellaire.
The current description for the subject the subject tract, recorded in Harris County Clerk’s File No. 20090369969, does mention it is out of “HARRIS COUNTY CERLK’S FILE NO. M847076 AND FILM CODE NO. 189-17-1461, OFFICAL PUBLIC RECORDS OF REAL PROPERTY”, so let’s look at that and see if it sheds any light on this mess. A copy of this instrument is shown below.
M847076.pdf
The description in this instrument, recorded October 3, 1990, is different from the description in Harris County Clerk’s File No. 20090369969 and the description in the provided title commitment. Harris County Clerk’s File No. 20090369969 is a Survivorship Agreement for Community Property, recorded August 14, 2009. Since Harris County Clerk’s File No. M847076 mentions it is subject to a certain deed of trust lien, a further search of the Harris County Grantor/Grantee index yields the original vesting deed for the current owners of the subject tract in Harris County Clerk’s File No. F006443, recorded January 7, 1977. A copy of this instrument is shown below.
F006443.pdf
The current owner was first granted the subject tract January 7, 1977, and this grant does not mention a portion of Bellaire Boulevard as being part of it. On the other hand, Harris County Clerk’s File No. 20090369969 was recorded August 14, 2009, and includes a portion of Bellaire Boulevard. A check of the Harris County Block Book maps shows the old tax map only depicts Lot 25 Block 46, with no portion of Bellaire Boulevard being associated with it. It follows that if there was an abandonment of a portion of Bellaire Boulevard it must have occurred between January 7, 1977, and August 14, 2009.
After a thorough search of the Harris County Grantor/Grantee index, we find no such transaction. Further, we find no Public Record of the subject tract owner granting the save and except tract to the City of Bellaire, described in Harris County Clerk’s File No. 20090369969.
The description for the subject tract, which includes a portion of Bellaire Boulevard, first appears in the Public Record, at the Harris County Clerk’s office, in Harris County Clerk’s File No. 20090369969.
The next step is to go to the field and our worst fears, along with the veracity of our research, are confirmed. We find some of the artificial monuments called for in Harris County Clerk’s File No. 20090369969 and they are protruding into the street right-of-way of Bellaire Boulevard.
Bellaire Boulevard originally had one-way paving, on either side of the extreme edges of the right-of-way, with a trolley track running along the center of it. Later, Bellaire Boulevard was redeveloped and the trolley track in the center of the right-of-way was removed and replaced with a modern boulevard style roadway. But the old roadway paving, on the extreme edges of the right-of-way, was never removed and simply left in place. At some point, the current owner of the subject tract must have cordoned off a section of the old paving, just south of Lot 25, and begun using it as a parking lot.
We must now complete our survey, of only Lot 25 Block 46, based on the description in Harris County Clerk’s File No. F006443. It will also be necessary to explain to the concerned parties that portions of the subject tract described in Harris County Clerk’s File No. 20090369969, as protruding into the right-of-way of Bellaire Boulevard or being excluded from Lot 25 Block 46, do not exist and that the instrument is fraudulent.
Additional Observations
The current owner of the subject tract must have presented Harris County Clerk’s File No. 20090369969 to the Harris County Appraisal District, and a clerk there then added the tract of land it described to the tax map, even though it protruded into the right-of-way of Bellaire Boulevard.
The description of the subject tract, in Harris County Clerk’s File No. 20090369969, contains numerous errors and omissions but it must have been written by a professional land surveyor. We can demonstrate this because it forms perfectly closed mathematical figures and accurately recites the location of some of the artificial monuments we found in the field. While we can only speculate as to the reasons why a professional land surveyor would create this description, the damage it is causing to the Real Property system is evident.
Chapter 5 Content
Example 5
A potential client contacts us and complains the land he recently purchased is landlocked. The potential client wishes us to write a description, and stake it out on the ground, for an access easement which crosses the adjoiner’s land to reach a nearby highway. After looking at the tax map, where the property he owns is located, we explain that we must be hired to survey his land first before we attempt to write a description for an access easement across the adjoining piece of land.
We provide a proposal for service, which includes a copy of the tax map, in the general area where his property is located, along with a tax report for the land he owns. This is to ensure we are bidding on the correct land he wants surveyed. Below is a copy of these.
sanjacinto1.pdf
sanjacinto2.pdf
The potential client balks at the price we quote but, after explaining to him several times what is involved, he signs the contract for service with us.
The next step is to locate a copy of his deed for the property he owns, at the San Jacinto County Clerk’s office. The tax report includes a chain of title, which is very convenient, so this instrument is easy to locate. A copy of vesting deed for the subject tract is shown below.
20221241.pdf
This instrument does not provide a description for the subject tract and only refers to Volume 87, Page 235 of the Official Public Records of San Jacinto County, Texas, for it. However, the instrument does include the subject tract tax identification number for the appraisal district in San Jacinto County. We locate Volume 87, Page 235 of the Official Public Records of San Jacinto County, Texas, a copy of which is shown below.
0087_0235.pdf
The particular description of the subject tract, in this instrument, recorded April 19, 1989, is apparently for Share 5 of the attached 7-acre tract partition map, even though it states it is Tract No. 3 of said partition map in the general description. What is interesting about the description and the partition map, shown in this instrument, are they indicate the subject tract extends to FM 222, unlike what the San Jacinto County tax map shows. This instrument also tells us the original conveyance for the subject tract is apparently located in Volume 115, Page 411 of the Deed Records of San Jacinto County, Texas.
A piece of the subject tract must have been conveyed, between the time Volume 87, Page 235 of the Official Public Records of San Jacinto County, Texas was recorded, and San Jacinto County Clerk’s File No. 20221241 was recorded, cutting off access to FM 222.
The Grantor in San Jacinto County Clerk’s File No. 20221241 was FYMR, LLC, so we need to check the San Jacinto County Grantor/Grantee index to see if FYMR, LLC conveyed some portion of the subject tract to a third party, before they conveyed it to the current owner. This search turns up no other conveyances by FYMR, LLC, concerning the subject tract, other than the above-listed instrument.
FYMR, LLC had the subject tract conveyed to them under San Jacinto County Clerk’s File No. 20206954, by ACPS PROPERTY LLC, recorded October 28, 2020. A copy of this instrument is shown below.
20206954.pdf
The description in this instrument is identical to the current deed description for the subject tract, so we will check the San Jacinto County Grantor/Grantee index to see if ACPS PROPERTY LLC conveyed a portion of the subject tract, before conveying to FYMR, LLC. This search turns up no transactions by ACPS PROPERTY LLC, other than the conveyance of it into them, under San Jacinto County Clerk’s File No. 20205095, filed August 26, 2020. A copy of this instrument is shown below.
20205095.pdf
This instrument is a Constables Resale Deed. It states the subject tract was acquired by San Jacinto County through a tax foreclosure proceeding against Lee Douglas Greenleaf, Cause No. D-8799-14, signed February 26, 2020, by the Commissioner’s Court. It also states a public auction was held for the subject tract, August 4, 2020.
Again, the description of the property is identical to the current deed description for the subject tract, so we are at a dead end. For the time being, we will build a mathematical model, based on the 7-acre partition map shown in Volume 87, Page 235 of the Official Public Records of San Jacinto County, and investigate what happened to the piece shown missing out of the subject tract on the tax map later.
We will first try and compute the overall exterior of the 7-acre partition map shown in Volume 87, Page 235 of the Official Public Records of San Jacinto County. We will then throw all the errors found in the exterior of the 7-acre partition map into the leg along FM 222.
Next, we will hold the dimensions shown along the westerly legs of Share 1 through 5 and the dimensions along southwest legs of Share 6 through 7, within the 7-acre partition map, and intersect the called bearings with our computed bearing along FM 222. The record dimensions of the boundary of each individual tract, and the overall 7-acre partition map, are shown in red. The subject tract boundaries (Share 5 of the 7-acre partition map) are shown in green. Our computed dimensions, where they differ from what is indicated on the 7-acre partition map, are shown in black. See the results below.
sanjacinto3.pdf
Judging from the errors we found in the 7-acre partition map and the metes and bounds for the subject tract, shown in Volume 87, Page 235 of the Official Public Records of San Jacinto County, it appears the dimensions for them were computed using a sine table, which indicates the partition map is much older than Volume 87, Page 235 of the Official Public Records of San Jacinto County, because that instrument was recorded April 19, 1989, when the use of computers and calculators was more widespread.
Now that we have a mathematical model to work with, we will try and determine what happened to the piece, shown missing out of the subject tract, on the tax map. The tax map indicates the owner (or their predecessor in title) of Parcel 42923 (north adjoiner) acquired part of the subject tract sometime in the past, so we will begin by finding the most current deed for the north adjoiner. A copy of the tax report for the north adjoiner is shown below.
sanjacinto4.pdf
This report indicates Recinos Ana Lissette Tiznado et al. is the current owner of the north adjoiner and they acquired it from STONE GATE, LLC, under San Jacinto County Clerk’s File No. 20225262, recorded July 28, 2022. A copy of this instrument is shown below.
20225262.pdf
The description, in this instrument, is ambiguous and only refers to the parcel id no. R42923 (42923) shown on the tax map. It does indicate there is a previous deed for this parcel, but it does not provide the recording information for it. We will need to check the San Jacinto County Grantor/Grantee index, to see if there are any other conveyances, which might include part of the subject tract, going into the current owner of the north adjoiner. This turns up no other transactions, other than a deed of trust, recorded July 28, 2022, under San Jacinto County Clerk’s File No. 20225263, with the same description as the vesting deed above.
We will need to look at the deed STONE GATE, LLC acquired the north adjoining property with, to see if it gives us a better description of it. STONE GATE, LLC, acquired the north adjoining property from Guadalupe Zavala Raya, under San Jacinto County Clerk’s File No. 20221384 recorded March 1, 2022. A copy of this instrument is shown below.
20221384.pdf
The description in this instrument is the same as the previous description for the north adjoining property and is no help. We will now have to check the San Jacinto County Grantor/Grantee index to see if STONE GATE, LLC acquired a part of the subject tract before they conveyed the north adjoining property to the current owner. This turns up nothing but a series of transactions with the current owner of the north adjoining property. All of these instruments contain the same description for the north adjoining property.
Guadalupe Zavala Raya acquired the north adjoining property from San Jacinto Investments, LP under San Jacinto County Clerk’s File No. 20154205, recorded August 14, 2015. A copy of this instrument is shown below.
20154205.pdf
The description in this instrument is the same as the previous descriptions for the north adjoining property and is no help. We will now need to search the San Jacinto County Grantor/Grantee index to see if Guadalupe Zavala Raya may have acquired part of the subject tract, before he conveyed the north adjoining land to STONE GATE, LLC. This turns up nothing so we will now look at the deed San Jacinto Investments, LP acquired the north adjoining property under. San Jacinto Investments, LP acquired the north adjoiner with a quit claim deed from Jeff Searcy under San Jacinto County Clerk’s File No. 20154204 recorded August 14, 2015. A copy of this instrument is shown below.
20154204.pdf
The description in this instrument is the same as the previous descriptions for the north adjoining property and is no help. We will make a search of the San Jacinto County Grantor/Grantee index to see if San Jacinto Investments LP acquired a part of the subject tract before they conveyed it to Guadalupe Zavala Raya. San Jacinto Investments LP engaged in at least 200 transactions, but our search turns up no other instrument regarding the subject tract. We will now look at the deed Jeff Seary acquired the north adjoining property under, to see if we can get a better description of it. Jeff Searcy acquired the north adjoining land through a Constable’s Deed under San Jacinto County Clerk’s File No. 06-6202, recorded August 24, 2006. This instrument states San Jacinto County acquired the north adjoiner because of a tax judgment, No. D-6701-04, on May 18, 2006, against Lee Douglas Greenleaf. A copy of this instrument is shown below.
2006-6202.pdf
The description in this instrument is like the previous descriptions for the north adjoiner, with the exception that it does mention a prior deed, San Jacinto County Clerk’s File No. 03-2591. Lee Douglas Greenleaf apparently owned the subject tract (Share 5 of the partition map) and the north adjoiner (Share 4 of the 7-acre partition map) and ceased paying taxes on them.
We will check for any conveyances into Jeff Searcy and see if he acquired any part of the subject tract, before he conveyed it to San Jacinto Investments, LP. Jeff Searcy has been involved in more than 200 transactions, but our search turns up no conveyances into him which involve the subject tract. We will examine San Jacinto County Clerk’s File No. 03-2591 next, to see if this helps with this problem. A copy of this instrument is shown below.
2003-2591.pdf
This instrument was recorded April 16, 2003, and is an Affidavit of Heirship. The only hint it gives, as to a description for parcels it involves, is as follows
:
- A31 Jose Dolores Martinez, Tract 343, 2 acres, San Jacinto County, Texas
- A31 J D Martinez #7, Tract 62, 2 acres in San Jacinto County, Texas
It is possible the subject tract and the north adjoiner (Share 4 and Share 5 of the 7-acre partition map) are mentioned as tract “a.” or tract “b.” of this instrument but that is uncertain. The instrument states that Lee Douglas Greenleaf was the previous owner of the parcels listed in it and states that Colena Greenleaf is the new owner of them. What is certain is, if Colena Greenleaf owned Share 4 and Share 5 of the 7-acre partition map, she did not pay taxes on them.
What is also certain is all of our searches have turned up no evidence that some part of the subject tract (Share 5 of the 7-acre partition map) ended up being part of the north adjoining land (Share 4 of the 7-acre partition map).
We know Lee Douglas Greenleaf acquired the subject tract (Share 5 of the 7-acre partition map) under Volume 87, Page 235 of the Official Public Records of San Jacinto County, recorded April 10, 1989. What we do not know is how he acquired the north adjoining property (Share 4 of the 7-acre partition map).
We are stuck with going through the San Jacinto Grantor/Grantee index and searching for any grants to Lee Douglas Greenleaf. We are in luck and find a Deed of Gift reserving life estates, recorded in Volume 87, Page 250 of the Official Public Records of San Jacinto County, recorded April 10, 1989. A copy of this instrument is shown below.
0087_250.pdf
The description in this instrument is for the north adjoiner (Share 4 of the 7-acre partition map) and the partition map attached is identical to the 7-acre partition map in Volume 87, Page 235 of the Official Public Records of San Jacinto County. The description also tells us the original conveyance for the north adjoiner is apparently recorded in Volume 115, Page 406 of the Deed Records of San Jacinto County, Texas.
We now know how Lee Douglas Greenleaf acquired the subject tract (Share 4 of the 7-acre partition map) and the north adjoining land (Share 5 of the 7-acre partition map). In addition, our search for grants to Lee Douglas Greenleaf turns up a Deed of Exchange, in Volume 101, Page 445 of the Official Public Records of San Jacinto County, recorded December 18, 1989. A copy of this instrument is below.
0101_0445.pdf
It is a grant of a 0.05 acre tract, out of Share 2 and Share 3 of the 7-acre partition map, owned by Dollie M. Ellis Rollins et al. to Lee Douglas Greenleaf and Colena Greenleaf who owned the north adjoiner (Share 4 of the 7-acre partition map). This exchange deed contains a lot of information and the first thing to notice is the original deed for the north adjoiner (Share 4 of the 7- acre partition map) is apparently recorded in Volume 115, Page 406 of the Deed Records of San Jacinto County, Texas.
However, this still does not explain why a piece is missing out of the subject tract (Share 5 of the 7-acre partition deed). This exchange deed contains two partial copies of a survey performed by Joe Pridgen (Joe Pridgen Survey), Registered Public Surveyor No. 1691, which depict two pieces of land, the 0.05 acre tract out of Share 3 of the 7-acre partition map and another 0.05 acre tract out of Share 4 of the 7-acre partition map. Something else to notice is the Joe Pridgen survey does not agree with the partition map or descriptions in Volume 87, Page 250 and Volume 87, Page 235 of the Official Public Records of San Jacinto County.
The original conveyance for Share 4, recorded in Volume 115, Page 406 of the Deed Records of San Jacinto County, only recites a description that agrees with the partition map found in Volume 87, Page 250 and Volume 87, Page 235 of the Official Public Records of San Jacinto County, which we already constructed a mathematical model of.
It is possible Colena Greenleaf or Lee Douglas Greenleaf made a conveyance out of the subject tract (Share 5) so we will go to the Grantor/Grantee list for San Jacinto County and run a search for either of them as a Grantor. We are in luck and an Exchange Deed was recorded December 18, 1989, in Volume 101, Page 453 of the Official Public Records of San Jacinto County, Texas from Lee Douglas Greenleaf and Colena Greenleaf to Dollie M. Ellis Rollins et al. for an 0.05 acre tract, out of Share 4 of the 7-acre partition map, to Share 3 of the 7-acre partition map. A copy of this instrument is shown below.
0101_0453.pdf
There must have been confusion about who owned Share 5 of the 7-acre partition map, because of these various instruments. The subject tract is Share 5 of the 7-acre partition map, but it is not mentioned in either of the above exchange deeds, which only involve Share 3 and Share 4 of the 7-acre partition map.
Like the exchange deed in Volume 101, Page 445 Deed Records of San Jacinto County, Volume 101, Page 453 of the Official Public Records of San Jacinto County only contains one description, for an 0.05 acre tract, but it is out of north adjoiner (Share 4 of the 7-acre partition map) to Share 3 of the 7-acre partition map (owned by Dollie M. Ellis Rollins et al.), and has the same two partial copies of the Joe Pridgen Survey attached to it.
What is interesting about the Joe Pridgen Survey and the 0.05 acre descriptions, in these two exchange deeds, is they contain calls to set and found artificial monuments, unlike the 7-acre partition map.
Even though these exchange deeds only involve Share 3 and Share 4 of the 7-acre partition map, we can partially reconstruct Joe Pridgen’s resurvey, of Share 2, Share 3, Share 4 and Share 5 of the 7-acre partition map, using the calls from the 0.05 acre descriptions and the partial copies of the Joe Pridgen survey found in them.
We will abandon part of our current mathematical model and construct a new one, based on the Joe Pridgen survey found in these exchange deeds. A copy of this is shown below.
sanjacinto5.pdf
We were trying to determine the dimensions of Share 5 of the 7-acre partition map, according to the Joe Pridgen survey, but we are only partially successful. The descriptions and the partial copies of the Joe Pridgen survey, in the exchange deeds, provide us with a dimension of 63 feet for Share 4 of the 7-acre partition map along FM 222, but does not provide us with a dimension for Share 4 of the 7-acre partition map along its westerly boundary.
The Joe Pridgen survey does, however, provide a total dimension of 115.60 feet along the westerly boundary of Share 4 and Share 5 of the 7-acre partition map. The call in the 7-acre partition map for this dimension is a total of 103.2 feet.
We need more information. It is possible that Dollie M. Ellis Rollins et al. (owner of Share 2 and Share 3 of the 7-acre partition map) may have had a survey of her land performed if she sold it. A search of the San Jacinto County Grantor/Grantee list, with Dollie Rollins as a Grantor, yields the following conveyance to Donald McAdams, Sr., in San Jacinto County Clerk’s File No. 01-5199, recorded August 15, 2001. A copy of this instrument is below.
01-5199.pdf
This instrument provides us with the complete resurvey of Share 2, Share 3, Share 4 and Share 5 of the 7-acre partition map according to the Joe Pridgen survey of them.
There are several things to notice. We now know the dimension along FM 222 for Share 5 of the 7-acre partition map according to the Joe Pridgen survey, but the Joe Pridgen survey does not provide the individual dimensions for the westerly boundaries of Share 4 and Share 5 of the 7-acre partition map. Something else to notice is the Joe Pridgen survey depicts a house being located on the subject tract (Share 5 of the 7-acre partition map) near FM 222.
We will add the information on the Joe Pridgen survey, in the above instrument, to our new mathematical model. We will hold the westerly boundary dimension of 49 feet, shown on the 7-acre partition map for the subject tract (Share 5 of the 7-acre partition map) and add that to our mathematical model as well. The results are shown below.
sanjacinto6.pdf
After all of this we still do not know what happened to the piece missing from the subject tract (Share 5 of the 7-acre partition map), but this is helpful information for performing our survey. The only avenue left is to examine the southerly adjoining deed, to see if it sheds any light on this problem. A copy of the tax report is shown below.
southadjoiner.pdf
The owner is shown as McMurrey John R. A search of the San Jacinto County Grantor/Grantee list turns up a conveyance in Volume 324, Page 24 of the Official Public Records of San Jacinto County. The description for the south adjoining tract is on Page 24 of this document and is of no help. A copy of this instrument is shown below.
0324_0024.pdf
We are back to square one. We still do not know why the San Jacinto tax map is showing a piece missing out of the subject tract. We will still need to do more research to find the instrument for the west adjoiner, as well as FM 222, but this is not going to help with the problem of the piece missing out of the subject tract.
The Exchange Deed, recorded December 18, 1989, in Volume 101, Page 445 of the Official Public Records of San Jacinto County, Texas from Dollie M. Ellis Rollins et al. to Lee Douglas Greenleaf and Colena Greenleaf, has only one written description, but graphically depicts two 0.05 acre tracts from the Joe Pridgen survey. The second depicted 0.05 acre tract shows a triangular parcel on FM 222, but the Joe Pridgen survey does not graphically indicate where it is located in the 7-acre partition map.
The Exchange Deed, recorded December 18, 1989, in Volume 101, Page 453 of the Official Public Records of San Jacinto County, Texas, from Lee Douglas Greenleaf and Colena Greenleaf to Dollie M. Ellis Rollins et al., has only one written description, but graphically depicts two 0.05 acre tracts from the Joe Pridgen survey. The first depicted 0.05 acre tract shows a triangular parcel, but does not graphically indicate where it is located, relative to FM 222.
The conveyance from Dollie Mae Ellis Rollins to Donald McAdams Sr. was recorded August 15, 2001 under San Jacinto County Clerk’s File No. 01-5199, and the Joe Pridgen survey, shown in it, would not have been known to the San Jacinto County Appraisal District until 11 years after the Exchange Deeds were filed.
As mentioned before, there was obvious confusion as to who owned what shares in the 7-acre partition map, due to errors in the conveyance descriptions and the conflicting conveyance instruments, particularly for Share 4 and Share 5 of the 7-acre partition map. In addition, San Jacinto County Clerk’s File No. 01-5199 depicts an old house on the subject tract (Share 5 of the 7-acre partition map) in the attached Joe Pridgen survey.
It seems possible the San Jacinto County Appraisal District misinterpreted the location of one of the Exchange Deeds and thought two of the 0.05 acre tracts were located in Share 5 of the 7-acre partition map. If this were true, then it would explain why the tax map is showing a piece missing out of the subject tract (Share 5 of the 7-acre partition map). If we alter our mathematical model, with this assumption and some imagination, the results are shown below.
sanjacinto7.pdf
Our mathematical model is now substantially the same as the San Jacinto County tax map and there seems little doubt that a mistake by the San Jacinto County Appraisal District, described above, brought about this condition.
This brings to light several issues. The north adjoiner (Share 4 of the 7-acre partition map) was sold by San Jacinto County to Jeff Searcy through a Constable’s Deed under San Jacinto County Clerk’s File No. 06-6202, recorded August 24, 2006, because of a tax judgment No. D-6701-04 dated May 18, 2006, against Lee Douglas Greenleaf. The description of the north adjoiner in that conveyance is as follows:
“Being 1.00 acre of land, more or less out of the Jose Dolores Martinez Survey, Abstract 31, San Jacinto County, Texas, as more fully described in Instrument #003-2591 of the Deed Records, San Jacinto County, Texas. Account Nos. R42923.”
As mentioned before, San Jacinto County Clerk’s File No. 03-2591 (2003-2591.pdf) is an Affidavit of Heirship and is ambiguous as far as what lands it concerns. It is possible that the north adjoiner (Share 4 of the 7-acre partition map) is part of one of the two tracts described in this instrument, but we do not know. The last part of the description in San Jacinto County Clerk’s File No. 06-6202 states that it is San Jacinto County Appraisal District “Account Nos. R42923” which is the tax identification number for the north adjoiner. When Jeff Searcy acquired the north adjoiner from San Jacinto County, due to the tax judgment No. D-6701-04 dated May 18, 2006, against Lee Douglas Greenleaf, he must have believed he was acquiring the land depicted on the San Jacinto County tax map, which included a piece out of the subject tract (Share 5 of the 7-acre partition map).
The issue becomes what did San Jacinto County intend to convey to Jeff Searcy (north adjoiner, Share 4 of the 7-acre partition map)? It could be argued that the description in that conveyance (San Jacinto County Clerk’s File No. 03-2591), “Account Nos. R42923”, would be the lands depicted on the San Jacinto County tax map as tax identification no. R42923, since the subject tract (Share 5 of the 7-acre partition map) was also owned by Lee Douglas Greenleaf and sold by San Jacinto County to ACPS PROPERTY LLC for nonpayment of taxes, under San Jacinto County Clerk’s File No. 20205095.
However, the subject tract (Share 5 of the 7-acre partition map) was not acquired by San Jacinto County until a tax foreclosure proceeding, cause No. D-8799-14, signed February 26, 2020, by the Commissioner’s Court, and a public auction, held August 4, 2020, according to San Jacinto County Clerk’s File No. 20205095, filed August 26, 2020 (San Jacinto County to ACPS PROPERTY LLC).
Since you can’t sell what you do not own, San Jacinto County could not have sold part of the subject tract (Share 5 of the 7-acre partition map) when they sold the north adjoiner (Share 4 of the 7-acre partition map) to Jeff Searcy in 2006, because the subject tract was not foreclosed on by San Jacinto County until 2020. In other words, it does not matter what the San Jacinto tax map showed that Jeff Searcy was purchasing in 2006.
This means the mathematical model in sanjacinto6.pdf is the actual shape of the subject tract (Share 5 of the 7-acre partition map) and the north adjoiner (Share 4 of the 7-acre partition map), and not what is depicted on the San Jacinto County tax map. This also means our client’s land (subject tract) is not landlocked and there is no need to write a description for an access easement to reach the highway.
When we go to the field, it is discovered that the current owner of the north adjoiner (Share 4 of the 7-acre partition map) is in the process of renovating the old house on the subject tract (Share 5 of the 7-acre partition map). In Texas, this has little bearing on how a land surveyor would treat this case since land surveyors in this state are charged, by codified law, with locating real property according to the intent of the original conveyance of it. Possession may have changed the boundaries of the subject tract, and the north adjoiner, but it is not within the powers of a land surveyor in Texas to grant land based on that.
Epilogue
The Public Record is rife with problems, which pose difficulties for a professional land surveyor attempting to retrace or describe Real Property boundaries. Understanding the chaos caused by these problems and being able to identify them is half the battle. The professional land surveyor must also be able to understand when they can resolve a problem and when they cannot.
Most land surveyors did not grow up thinking they would be land surveyors. Once they become land surveyors, many never retire and continue to practice until they are no longer physically able. It is a rewarding profession, but is not often recognized by the Public for the benefits it provides to our society. Without land surveyors, the courts would become clogged with frivolous legal contests over who owns what. The ability to own Real Property is the basis for all the wealth of the citizens in this country. It is the Land surveyors job to protect that wealth, by stabilizing our Real Property System on the ground, and in the Public Record.
References, sources, and additional reading
https://www.imps.ac.ir/uploads/LawBooksJI/Boundary-Control-and-Legal-Principles.pdf
https://pels.texas.gov/downloads/lawrules.pdf
https://statutes.capitol.texas.gov/Docs/SDocs/PROPERTYCODE.pdf
https://www.cclerk.hctx.net/applications/websearch/
https://i2j.uslandrecords.com/TX/SanJacinto/D/default.aspx
https://www.tsps.org/store/viewproduct.aspx?id=3313641
https://archive.org/details/legalelementsofb0000rayh