CHAPTER 11 THE INS AND OUTS (AND ZIGS AND ZAGS) OF LEGAL DESCRIPTIONS

• Jurisdiction: United States

Rights-of-Way How Right is Your Right-of-Way?
(May 1998)
CHAPTER 11
THE INS AND OUTS (AND ZIGS AND ZAGS) OF LEGAL DESCRIPTIONS
Alan C. Morganfield
Public Service Company of Colorado
Denver, Colorado
Charles Carpenter
Attorney-at-Law
Denver, Colorado

TABLE OF CONTENTS

SYNOPSIS

I. INTRODUCTION

II. COMMON TYPES OF LEGAL DESCRIPTIONS

III. THE UNITED STATES PUBLIC LAND SURVEY SYSTEM

A. Historical Development of the USPLSS

B. USPLSS Grid System

i. Initial Points

ii. Principal Meridians and Baselines

iii. Standard Parallels and Guide Meridians

C. Documentation for Official Surveys

i. Monuments

ii. Field Notes

iii. Township Plats

a. Lots

b. Tracts

c. Supplemental Plats

d. Meander Lines

IV. SUBDIVISION PLATS

V. METES AND BOUNDS

A. Survey Calls

i. Course

ii. Distance

iii. Basis of Bearing

iv. Curves

VI. STATE PLANE COORDINATE SYSTEMS

VII. READING AND WRITING LEGAL DESCRIPTIONS

A. USPLSS Descriptions

B. Subdivision Descriptions

C. Metes and Bounds Descriptions

D. Right of Way Descriptions

i. Strip and Centerline Descriptions

ii. Fractional or Aliquot Part Description

iii. Perimeter Descriptions

iv. Blanket Descriptions

E. Terminology

VII. CONCLUSION

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I. INTRODUCTION

The term "right of way" can mean several different things. Generally, a right of way is an easement but the term may also apply to a fee simple strip of land or a public right of way for roads, drainage or utilities. No matter what form of ownership or property rights are intended, the exact location of rights of way must be described in some manner. This paper will focus on the different methods commonly used to describe the location of rights of way—the so called "legal description" or "land description"—and the basic principles involved in reading, writing, retracing and interpreting legal descriptions.

First, this paper identifies several methods for writing legal descriptions. The following sections discuss those methods in more detail and give the historical and statutory bases for their use in writing sufficient legal descriptions. Then, the general principles for using each method to read and write legal descriptions are reviewed. Finally, several variations and combinations of the basic methods that are commonly used to describe rights of way are addressed, and a list of ten terms that are often used or misused in legal descriptions is presented.

II. COMMON TYPES OF LEGAL DESCRIPTIONS

A sufficient legal description is one that either identifies the location of the land on the ground to the exclusion of all other land, or furnishes some means by which such location can be obtained from other sources. A legal description is insufficient if it does not, even with the aid of extrinsic evidence, identify the subject land to the exclusion of all other land. Unfortunately, there is no standard rule which uniformly defines the sufficiency of a legal description. Rather, courts tend to apply general rules of construction which favor certain possible interpretations of a description over others to determine the true intent of the parties.¹

To the general public the best reference to the location of land may be by a street address or by simply referring to the owner of the land, i.e., the "Walker Farm" or the "Old Baylor Place." Although this may be adequate for general conversations, it is preferable to use a more precise description for instruments affecting title to or the uses of real estate.²

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A legally sufficient land description can be written in several different ways, and can include combinations several different methods. If the description is not written in a proper manner, the subject land may be described in an unintended location. If the description is erroneous or insufficiently vague, it may locate the land on another person's property, it may describe the property in more than one location, it may fail describe a defined parcel because it does not close, or it may not describe any land at all. In such instances, the insufficient description may render a conveyance void, cloud or slander the title of another, or negate the value of the property rights intended to be established or conveyed.

Four types of legal descriptions which have been developed to achieve greater accuracy and precision in identifying land and land rights are addressed in this paper: (1) descriptions referring to the United States Public Land Survey System ("USPLSS"), sometimes referred to as the "rectangular" or "quadrangular" survey system; (2) descriptions referring to recorded subdivision plats; (3) metes and bounds descriptions; and (4) descriptions based on State Plane Coordinate Systems. General descriptions; which require reference to extrinsic evidence to be sufficient or which incorporate descriptions from other instruments are not addressed herein.

There is no single preferred method for writing legal descriptions. Any types of descriptions discussed herein, or different combinations thereof, may be the most appropriate means for describing the location of a right of way, depending on the factual, contractual and physical circumstances. Rather, the preferred method of writing descriptions is simply to use the best type or combination of types and parts that will give the clearest and shortest description possible.³

III. THE UNITED STATES PUBLIC LAND SURVEY SYSTEM ("USPLSS")

The most common method for describing large parcels of land is by reference to the USPLSS. This is a grid system that is unique to North America.⁴ Any parcel of land in a public land state can be precisely identified, to the exclusion of all other land, by stating the Section (or a fractional subdivision thereof), Township and Range numbers in relation to a specific Principal Meridian. The rectangular survey system that is the foundation of the USPLSS was implemented to locate and describe the first sales of public lands in the United States, and substantially all federal disposals of the public domain since 1800. Since the first governmental surveys in Ohio pursuant to the Land Ordinance of 1785, the USPLSS has been extended westward across the United States,

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including Alaska, and now covers 30 of the 50 states. This system does not cover the New England or Atlantic coast states (except Florida), West Virginia, Kentucky, Tennessee, Texas and Hawaii.⁵

A. Historical Development of the USPLSS

Soon after the Revolutionary War ended it was decided by the first Continental Congress that a plan must be worked out for locating and selling public lands in the western territories not included in the original states to help pay off the national debt. Thomas Jefferson chaired a committee that recommended a survey plan based on the New England town system.⁶ It was adopted by the Continental Congress, in a modified form, on May 20, 1785.⁷

The first surveys under this newly enacted law, were performed in the State of Ohio. Though only seven ranges were actually survey pursuant to the Land Ordinance of 1785, this testing ground for the rectangular survey system proved that it was well conceived. By the time extensive surveys were started in Indiana in 1805, the system had been further refined and most of the basic survey rules were well established.⁸ The General Land Office ("GLO") was established in 1812 to administer all public land sales.⁹ Although the GLO Commissioners circulated written survey instructions to the

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Surveyors General before 1836, it was not until then that Congress expressly centralized the control over all government survey activities in the GLO.¹⁰

The first official manual of surveying instructions was issued by the GLO on March 3, 1851. It was written by John M. Moore, Principal Clerk of Surveys, to the newly appointed Surveyor General for certain public lands in the Oregon Territory and the new state of California. Copies of these instructions, the so-called 1851 Oregon Manual, were subsequently distributed to the Surveyors General in several other States and Territories.¹¹ The 1851 Oregon Manual was further expanded by Mr. Moore in an 1855 Manual of Surveying Instructions. Although the technical details of monumentation, rectangular and closing limits, location and restoration of obliterated corners, etc. have evolved since 1855, the basic system of rectangular surveys at the core of the USPLSS has remained essentially the same,¹²

The 1855 Manual has been periodically updated and supplemented. New editions were published in 1881, 1890, 1896, 1902, 1930, 1947, and 1973 ("BLM Manual").¹³ Since 1862, the BLM Manual has been incorporated into and made a part of every surveying contract let by the federal government.¹⁴ The BLM Manual and certain circulars issued by the federal government, such as the instructions for reestablishing lost or obliterated corner monuments, have also been adopted by statute as the official source for surveying standards in many states.¹⁵

Since all major legislation authorizing the disposal of public lands, except for mining claims, has required that the land be included in the USPLSS prior to disposal, the political decision to convert the public domain to private ownership required the extension of the USPLSS to cover all of the new territories and states. Until 1910, all public land surveys were conducted by private surveyors pursuant to contracts executed by the Surveyors General, who were under the supervision of the Secretary of Treasury

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from 1797 to 1812 and the Commissioner of the GLO from 1812 to 1910.¹⁶ This contract system ended with the Civil Appropriations Act of 1910 which provided for the direct employment of competent surveyors by the Secretary of Interior.¹⁷ Today substantially all official surveying by the federal government is performed by the Cadastral Survey branches of the Bureau of Land Management ("BLM")...