CHAPTER 2 LAND DESCRIPTION BASICS

• Jurisdiction: United States

Mineral Title Examination
(Sep 2007)
CHAPTER 2
LAND DESCRIPTION BASICS
Brent D. Chicken
Attorney
Beatty & Wozniak, P.C.
Denver, Colorado

Brent Chicken is an Associate at Beatty & Wozniak, P.C., a premiere Rocky Mountain energy law firm. After graduating from Florida State University in 2000, Brent attended the University of Denver Law School, where he server as on the Board of Editors for the Denver University Law Review, as Symposium Editor. Since graduating from law school, Brent has practiced in many areas involving energy and natural resources, including complex commercial litigation, oil and gas transactions, and representing clients in administrative matters involving the United States Bureau of Land Management, United States Forest Service, Wyoming Oil and Gas Conservation Commission, and Colorado Oil and Gas Conservation Commission.

Licensed to practice law in both Colorado and Wyoming, Brent also spends a substantial amount of time preparing drilling and division order, lease acquisition, and specialized oil/gas and mining title opinions. Additionally, Brent closely follows trends in mineral and split-estate rights, new mineral production technologies, non-carbon energy sources such as uranium production, and surface access and regulation issues.

Brent is the 2007 Secretary and Treasurer of the Denver Association of Oil and Gas Title Lawyers, an active member of the Denver Association of Petroleum Landmen, and a member of the Rocky Mountain Mineral Law Foundation, the Colorado Bar Association Mineral Law Section, the Wyoming State Bar, and the Federal Bar Association. A self-described movie-buff, Brent lives in Denver with his wife Rebecca, their dog Eve, and enjoys cooking, snow sports, mountaineering, and both reading and authoring fiction.

Real estate brokers are fond of relating the oft-quoted phrase, "location, location, location," in relation to the most valuable aspect of a given piece of real property. However, the same can be said for the preparation of mineral title opinions. The precise measurement, description, and acreage content of the subject parcel of land affects all aspects of a mineral title opinion thereon, from the recorded and filed documents examined, to the division of production proceeds. Indeed, an accurate legal land description also controls the coverage of oil and gas, mining, and other mineral leases and licenses; the location of easements, boundaries, and rights-of-way; and the ownership of surface, mineral, and leasehold interests. This document is therefore designed to give the reader a practical tool for use in understanding the legal land descriptions and acreage contents necessary to prepare a mineral title opinion.

Although an in-depth review of the methods for describing and construing legal descriptions could fill volumes, from the perspective of a mineral title examiner, such analysis can be narrowed to recognizing and understanding those forms of land description which are acceptable, those forms which are imperfect but pass, and those forms which are incorrect and unusable.¹ Indeed, the mineral title examiner has a single choice when construing an instrument's legal description -- the description is either good, or the description is bad, and in the latter case, only a legal action, corrective instrument from the proper parties, agreement, or possibly an affidavit, may be used to determine the correct, and exact, legal description.²

This paper begins with a short history of early land description, followed by a discussion of the metes and bounds method and its early problems. The article then moves to an explanation of the most common Rocky Mountain Region method of legal land description -- the Governmental, Rectangular, or Public Lands Survey System ("PLSS"). The focus then shifts to the subsets of the PLSS, being governmental resurvey and local subdivision. A brief discussion of the priority of controlling aspects of land descriptions, and the most common, modern form of surveying, using the electronic global positioning system, follows. Finally, the paper sets forth practical resources that can be employed by the mineral title examiner to obtain further information on surveying and legal land descriptions, assessing the acreage content of a given parcel of land, and obtaining visual depictions of mineral title opinion subject lands.

I. Early Land Description and the Metes and Bounds Method

Describing the boundaries of a parcel of land is one of the oldest practices of civilized

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mankind, and has been documented in both early Egyptian and Chinese records.³ In the case of the Egyptians, accurate land description methods were paramount to return Nile River basin land boundaries to their original locations following the annual overflow of the river.⁴ In more modern times, however, the first widely-accepted, and oldest, method of legal land description and survey was the metes and bounds system.⁵

In literal terms, metes and bounds means the measurements and boundaries of a given parcel of land.⁶ That is, the metes and bounds land description method involves describing a point on the boundary of a parcel as the "point of beginning," and then setting forth the directions or courses (or "calls"), and distances, from point to point around the parcel, to arrive back at the "point of beginning."⁷ A metes and bounds description must always contain two important criteria: a known, reliable point of beginning and description closure.⁸

In terms of the point of beginning, the location must be known, be susceptible to easy identification, be of substantial character, and be established in such a way that relocation with certainty is possible if the marker therefore is removed or destroyed.⁹ Due to these prerequisites aimed at assuring accuracy, a surveyor would often attempt to mark his or her point of beginning in a lasting manner, using stone or iron if possible, or even up to two trees if the situation required.¹⁰ Indeed, the failure of a precise point of beginning often invalidates a metes and bounds legal description, and the instrument within which it is found, unless the point of beginning can otherwise be discerned from the remaining descriptive information.¹¹ A surveyor would therefore endeavor to identify points of beginning, and other important points of reference in the metes and bounds description, by a monument.

Monuments can be natural or artificial, although natural monuments generally take precedence over artificial monuments.¹² Natural monuments are created by the forces of nature, and include trees, rivers, lakes, and boulders.¹³ Artificial monuments are man-made, and can include iron pins, steel pipes, highways, and other non-natural permanent markers.¹⁴ The hallmark of any monument, however, whether natural or artificial, is permanency.¹⁵ Permanency is the monument characteristic which allows subsequent location during resurvey, and is in fact the key piece of information which makes such resurvey even

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possible.¹⁶ For example, most regulation monuments for the PLSS are required to be made from a thirty inch long iron pipe, with zinc coating, two and one-half inches in diameter.¹⁷ Although, tree slashes, rock piles, mounds, and even pits have been used as monuments.¹⁸ The overarching idea concerning monuments therefore is that they must be both readily identifiable, and lasting enough to withstand the exposure, weather, and other rigors of both nature and time.

Closure of the legal description is the second important characteristic of a metes and bounds description¹⁹ Because the metes and bounds system depends on beginning at and returning to a specific point, thereby drawing a complete, unbroken line around the parcel being described, closure of a given tract is very important. The lines between identifiable points must be continuous, as described or construed, with the final line returning to the point of beginning.²⁰ Thus, a metes and bounds legal description which fails to begin and end at the same specific point therefore also fails to close, a situation which immediately calls into question the accuracy and/or correctness of the calls and distances provided in the legal description, and often does not describe any land.²¹

However, despite the seemingly logical protocols used in the metes and bounds system, problems arose that affected the permanency and accuracy of metes and bounds legal descriptions. Over time, trees are felled, rivers accrete and avulse, pits become filled, and mounds are leveled. The inherent inaccuracies and lack of permanency in a careless metes and bounds description are evident in the following legal description, taken from a deed dated October 3, 1874:

Begin at the middle of a large white pine stump standing in the West side line of Simon Vender Cook's land and on the South side of the main road that leads to the new city -- and there is also a fence that stands a little to the West of Simon Vendor Cook's barn, which said fence if it was to run cross the said road Southerly, would run to the middle of said stump; and running thence North 2 degrees East 19 chains and 50 links to a small white oak tree . . . thence North 9 chains 16 links to the middle of the stump where it first begun

Descriptions such as this were often the subject of boundary disputes and litigation in the early history of the United States, as metes and bounds legal descriptions were the prevailing method used in the Original 13 Colonies.²² The failures of the above-described metes and bounds legal description are immediately evident, particularly to a title examiner

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in present times: Is the white pine stump still in existence? Who is (or was) Simon Vender Cook? How can one identify the "main road to the new city"? These inaccurate applications of the metes and bounds system protocols, coupled with the general failure of surveyors to record or otherwise file their survey field notes...