Chapter 16 - § 16.3 • DESCRIPTIONS
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§ 16.3.1—In General
The sufficiency of a description is a question of law.114 As mentioned above, a description is sufficient when from it the property can be identified115 for the purpose for which the description is given. A complete description, of course, constitutes a clear and accurate identification of the property.116 If a surveyor by applying the rules of surveying can locate the land, the description is sufficient.117 Under some circumstances, if there is enough in the description to enable a person familiar with the locality to identify the premises intended to be described with reasonable certainty, to the exclusion of others, it is sufficient.118 It is only after the entire description in a patent has been considered, and found so inaccurate as to render the identity of the grant wholly uncertain, that the grant is held to be void.119
A description of real property as being the real property "last hereinabove described" refers to the entire property described, not merely the last tract thereof.120
The purchaser as well as the seller is bound by the description and, in the absence of fraud, cannot recover damages for oral representations regarding the quantity of land conveyed.121
Description problems occur in infinite variations. Hutchinson122 catalogs a number of common description problems. Martz123 classifies description problems, generally in order of decreasing seriousness, as follows:
1. Adequate description of wrong parcel of land;124
2. Description that identifies no particular tract;125
3. Description that can be unscrambled by instruments of record;126
4. Ambiguous description that can be unscrambled by evidence of usage;127 and
5. Erroneous descriptions that are surplusage.128
§ 16.3.2—Types of Description
United States Government Survey
One must, of course, be familiar with the rectangular system of surveys of the public lands of the United States and the description of lands by reference to that system. An invaluable reference regarding government surveys is the BLM's Manual of Instructions for the Survey of the Public Lands of the United States, discussed in § 16.1.2
Colorado has three sets of base lines and meridians by which public lands are described: the Sixth Principal Meridian, which covers lands located in northern and southeastern Colorado; the New Mexico Base & Meridian, which covers lands located in southwestern Colorado; and the Ute Base & Meridian, which covers lands located in the vicinity of Grand Junction.
The original survey as it was actually run on the ground controls.129 A survey made by the proper officers of the United States and confirmed by the land department is not open to challenge by any collateral attack.130 It does not matter that the boundary was inaccurate as originally established. A precisely accurate resurvey cannot defeat ownership rights flowing from the original grant and the boundaries originally marked off. The conclusiveness of an inaccurate original survey is not affected by the fact that it will set awry the shapes of sections and subdivisions.131
When lands are granted according to an official plat of the survey of the lands, the plat itself, with all its notes, lines, descriptions, and landmarks, becomes as much a part of the grant or deed by which the lands are conveyed, and controls so far as boundaries are concerned, as if such descriptive features were written out on the face of the grant or deed itself.132 Thus, the description of a mining claim as "United States Survey No. 158, California mining district, Lake county, Colorado" is sufficient.133 Whether the field notes are a part of the plat is unclear.134 But even if the field notes are not deemed a part of the plat, if by reason of the plat the patent is ambiguous, the field notes may be referred to in order to determine the intention of the parties.135
The board of county commissioners for each county is authorized to make copies of the original field notes and plats of surveys of all lands surveyed after March 14, 1877 by the officers appointed by the federal government.136 The copies of field notes and plats are filed in the office of the clerk and recorder and thereafter become a part of the public records of the county137 and when certified by the clerk and recorder are evidence in all courts and places in Colorado.138
Resurveys
Resurveys are provided for by federal statute as follows:
The Secretary of the Interior may, as of March 3, 1909, in his discretion cause to be made, as he may deem wise under the rectangular system on that date provided by law, such resurveys or retracements of the surveys of public lands as, after full investigation, he may deem essential to properly mark the boundaries of the public lands remaining undisposed of: Provided, That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement.139
Resurveys may be either dependent or independent. Because the effect of the resurvey will differ depending on whether it is dependent or independent, it is important that a title examiner know which type of resurvey has been made.140
Dependent Resurveys
A dependent resurvey is a retracement and reestablishment of the lines of the original survey in their true original positions according to the best available evidence of the positions of the original corners. The section lines and lines of legal subdivision of the dependent resurvey in themselves represent the best possible identification of the true legal boundaries of lands patented on the basis of the plat of the original survey. In legal contemplation and in fact, the land contained in a certain section of the original survey and the lands contained in the corresponding section of the dependent resurvey are identical.141
Thus, a dependent resurvey does not change any boundaries of lands previously patented, but merely establishes the true position of the boundaries of such lands.142 Because there is no actual change of boundaries, there is no occasion to invoke the "nonimpairment" language of 43 U.S.C. § 772, quoted above. What is "impaired," if anything, by a dependent resurvey is the landowner's mistaken idea of where the true boundaries are located.143
Independent Resurveys
An independent resurvey is an establishment of new section lines, and often new township lines, independent of and without reference to the corners of the original survey. In an independent resurvey it is necessary to preserve the boundaries of those lands patented by legal subdivisions of the sections of the original survey which are not identical with the corresponding legal subdivisions of the sections of the independent survey. This is done by surveying out by metes and bounds and designating as tracts the lands entered or patented on the basis of the original survey. These tracts represent the position and form of the lands alienated on the basis of the original survey, located on the ground according to the best available evidence of their true original position.144
If public lands are resurveyed by an independent resurvey after a patent is issued (or after the lands are otherwise claimed or disposed of), the description in the patent may no longer be correct. Changes of the locations of the lines of the public lands as a result of an independent resurvey do not change the boundaries on the ground of the lands conveyed on the basis of the original survey. It is essential, therefore, where there has been an independent resurvey, that the title searcher know whether any particular description refers to the original survey or to the independent resurvey.
In Koch v. United States,145 the patent as originally issued to Arthur B. Foster described the property granted as the North Half of the Southeast Quarter and the East Half of the Southwest Quarter of Section 6. An independent resurvey resulted in a shift in the boundaries of Section 6, leaving a strip of land, designated Lot 9, containing 11.10 acres, lying north of the property granted to Foster, but in the North Half of the Southeast Quarter of Section 6 as resurveyed. Foster's successors in interest, believing that they owned all of the North Half of the Southeast Quarter, conveyed their interest in Section 6, including Lot 9, to a corporation which in turn conveyed certain property, including Lot 9, to the Kochs. In their action against the United States, the Kochs asserted, and the court agreed, that the description included in a patent is conclusive, against the United States. The Kochs then asserted that since the patent conveyed the North Half of the Southeast Quarter and since Lot 9 lay in the North Half of the Southeast Quarter, they were the owners of Lot 9 by virtue of the patent. The court held, however, that the property included in the patent was described with reference to the original survey, not the resurvey, and that since the land subsequently designated Lot 9 was not included in the North Half of the Southeast Quarter under the original survey, it was not included in the patent.
Patented Mining Claims
Patents for lode mining claims give the entire boundaries of the original locations and except from the patent those portions included within prior valid locations.146 Where a patent includes more than one mining claim and the claims so patented are themselves in conflict, the conflicts are resolved in the field notes of the mineral survey and the plat thereof.147 An example is set out in Exhibit 16A to this Chapter.
Subdivision Plats
If land is subdivided so as to produce parcels of less than 35 acres in area, a final plat for the subdivided land must be approved by the board of county commissioners and recorded or filed in the office of the clerk and recorder.148 Failure to record the subdivision plat before the transfer or sale of a parcel of the subdivided land is prima facie evidence of a...
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