Rcsurvey Of Lots In A Subdivision Plat In Minnesota

by Lloyd E. Pew, L.S.

Legal descriptions fall into three basiccategories: 1) metes and bounds, whichgenerally includes all written descriptionsthat use courses and distances to describethe land; 2) reference to a plat or map; or3) a combination of the first two categories.Of the three, reference to a plat is themost desirable method to describe land,because it is brief and it employs a graphicrepresentation of the land being described.

A "plat" is a plan or a map or a chart ofa town site or a division of land. Kane v.State, 237 Minn. 261, 55 N.W. 2d 333. Alot is a tract or the subdivided parcel withina plat. A block is a group of lots within aplat.

An example of a typical legal descriptionfor a lot in a plat is Lot 5, Block 3, APPLEORCHARD ADDITION. When a deed orconveyance refers to a plat, such asAPPLE ORCHARD ADDITION, the platbecomes part of that deed for the purposeof describing, the land intended to be con-veyed. The^elements of the plat, such asthe description, landmarks, monuments,streets, alleys, easements, and the indi-.vidual boundary lines, are part of the deed,just as if they were written into the des-cription, itself.

"When a map or a plat is referredto in a conveyance, it becomes, forthe purpose of the description andidentification of the land, a part ofthe deed." Nicolin v. Scheiderhan,37 Minn. 63,33 N.W. 33. (1887).

"It is a well settled principle that iflands granted according to an officialplat .of the survey of such lands, theplat itself with all its notes, lines,descriptions, and land marksbecomes as much a part of the grantor deed as it such descriptivefeatures were written out upon, theface of the deed or grant itself, andcontrols so far as limits are con-cerned." Dittrich v. Ubl, 216 Minn.396,13 N.W. 2d 384 (1944)..

A plat does not have to be recorded orcomply to statutory requirements to bevalid. Reed v. Lammel, 28 Minn. 306, 9N.W. 858 (1881). Raines v. Village ofAlden, 252 Minn. 530, 90 N.W. 2d 906(1958).

"And it does not follow, becausethe plat does not conform to thestatute, or is not duly certified orrecorded, that the lands therein des-cribed may not be identified."Sanborn v. Mueller, 38 Minn. 27, 35N.W. 66 (1887).

A deed may be void for uncertainty if aplat referred to in that deed furnishes nosufficient data by which lots could be

located on the ground. Reed v. Lammel,28 Minn. 306, 9 N.W. 858 (1881).

If a deed refers to a lot in a plat, thenattempts to describe the lot by metes andbounds and fails, the lot description holds.

"The property conveyed is Lot 41.The conveyencer thought to makethe description more certain by at-tempting to bound the lot. Insteadof succeeding, he failed to describethe lot as shown on the plat. Undersuch circumstances, the descriptionby lot number controls, and the restis treated as surplusage. Moore v.Minneapolis & St. P.S.R. Co., Minn.152 N.W. 405 (1915).

The boundary of a lot is limited to thelines shown on the plat. Owsley v. John-son, 95 Minn. 168, 103 N.W. 903 (1905). Inthat case, the court held that lots nearLake Superior had no title to a strip of landalong the lakeshore because the lot bound-aries on the plat did not extend to the lake.

Resurveying a lot in a plat is a matter ofdetermining the location of the platted lotlines as originally run upon the ground. Asurveyor must carefully follow the foot-steps of the original surveyor. If a surveywas made upon the ground and a plat wasbased on that survey, then the lines as runon the ground show the intent of theparties in a deed. A monument is anyphysical object on the ground which helpsto establish the location of boundary linesand may be natural or artificial.

"Monuments are the best evi-dence of the lines and comersactually made by a survey, and whenascertained, are satisfactory andconclusive evidence of the locationof the lines as orginally run." Dittrichv. Ubl, 216 Minn. 396, 13 N.W. 2d384(1944).

Dittrich v. Ubl was a court case dealingwith the proper location of lot lines. Ublowned Lots 12 and 13, Block 57, in the cityof New Ulm. He conveyed Lot 13 to Ditt-rich. After a survey, Dittrich claimed thatUbl's barn encroached upon his lot by 2.5feet. Ubl denied that the barn encroachedupon Lot 12. The Lower Court found infavor of Dittrich. The Supreme Courtreversed that decision.

The basis of the disagreement was howthe location of the line between Lots 12.and 13 should have been determined.Dittrich's survey relied upon a iron pipe,referred to as the Behnke monument, aconcrete monument, and markers at thenortheast and northwest corners of Lot 14.Ubl relied upon the location of a monu-ment set by the original surveyor andnoted by the plat. The monument hadbeen replaced by a stone. The stone wasburied when the streets were paved.

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Before the stone was buried, two surveyswere made directly from the stone. Thesetwo surveys could be used to show thelocation of the buried stone.

Dittrich asserted that the replacement ofthe original monument was not an originalmonument. The court agreed but statedthat it was set in the exact place mentionedin the plat.

"Extrinsic aids to show actual loca-tion of original monuments may beused. It is competent to prove by parolethe location thereof and if lost or de-stroyed, the places where they wereset," page 388.

The Behnke monument had existed forat least forty years, and had been used tolocate street improvements. The plaintiffclaimed that it was a replacement of anoriginal monument, but the court said, atpage 389:

".. . there is no evidence to indi-cate how and under what circum-stances the monument was estab-lished, nor to retrace it to the platitself. One must indulge in specula-tion in order to connect it to theplat. Although corners have beenestablished in connection with thestreet improvements for 20 or 30years, it does not follow that a mon-ument mentioned in a plat may bedisregarded, if no error or mistakeappears and if no conflict betweensuch monument and distancesmeasured therefrom."

It may be important to note at this timethat when doing a resurvey of a lot in aplat often many iron monuments arefound. A surveyor should take care whenrelying on these monuments and questiontheir origin. Were the monuments set bythe original surveyor? Are the foundmonuments perpetuating the location ofthe original monuments and can they betraced to the original without any fancifulspeculation?

It doesn't matter how many surveyorshave relied upon a found monument or forhow many years. The authority of amonument is not a matter of a popularitycontest. The footsteps of the originalsurveyor must be followed, not the beatenpath of those that came after him.

In Dittrich v. Ubl, the court also notedthat fences existed on the line betweenLots 11 and 12, also on the line between 13and 14. The fences agreed with the defen-dent's location of the lot line.

"A building or a fence constructedaccording to stakes set by a sur-veyor at a time when these were stillin their original locations may be-come a monument after such stakeshave been removed or disappear,

and next to the stakes they may bethe next best evidence of the trueline," page 390.

In Ericksonv. Turnquist, 247 Minn. 529,77 N.W. 2d 740 (1956), some of theprinciples stated in Dittrich v. Ubl arereaffirmed. The court stated at page 742:

"Since the location of lots, streetsand alleys within a plat is determinedby their relation to the original mon-uments and landmarks of the plat, itmust be apparent that the properpoint from which to commence asurvey to determine the boundaryline between lots within an additionis an original or properly relocatedmonument or landmark within theaddition itself, or from a pointdirectly and accurately traceable tosuch a monument or landmark."

Original monuments control the locationof the boundaries within a plat, but what isan original monument? Undoubtedly, if amonument is shown and described on theface of the plat as having been set by theoriginal surveyor, it is an original monu1

ment. H a monument has been set toreplace an original monument and it canbe shown that it was set in the exact loca-tion of the original monument, then thatmonument may be treated as an originalmonument.

Surveyors have often set monuments orstakes at lot corners while laying out theoriginal plat, but these monuments orstakes do not appear on the face of theplat. In two cases, Turnbull v. Schroeder,29 Minn. 49,11 N.W. 147 (1882), andBoher v. Longer, 44 Minn. 281, 46 N.W.358 (1890), the court has allowed the suchmonuments or stakes to control the loca-tion of the lot line. Furthermore, when thestakes were missing from the ground andnot shown on the plat, parole evidencewas allowed to establish the location andthe fact that they were set by the surveyor.The important issue here seems to bewhether or not the stakes were set withauthority.

If distances and directions shown on theplat disagree with monuments, then thedistances and directions give way to themonuments. An example of this can befound in Nicolin v. Schneiderhan, 37 Minn.63, 33 N.W. 33 (1887). A lot was shownon the plat of "Nicolin's Addition to JordanCity" to be bounded on the north byWater Street and bounded on the south bySand Creek. The west and east lines weredimensioned on the plat as 35 feet and 33feet, on the ground they measured 50%feet and 5iy2 feet. After conveying the lot,Nicolin claimed that the lot did not go tothe creek but only extended south fromWater Street as far as the dimensions indi-cated. The court held that the plat clearlyshowed the lot extending from WaterStreet to Sand Creek. This was in effect acall to monuments and the distances mustyield.

If it can be said that distance and direc-tion give way to original monuments, thenit follows that an original monument setinaccurately still controls the true line oncethe title of the land has passed from thehands of the platter. And conversely, if themonument was set accurately but thedimension on the plat was written inaccu-rately, the monument holds. This also pre-tains to street and railroad rights-of-way, asstated in Arms v. City of Owatonna, 134N.W. 298 (1912), and Hunt v. Keyes, 150Minn. 142, 184 N.W. 840 (1921).

In the absence of all other controllingmonumentation, the location of street im-provements may be used to locate the platon the ground. Dittrich v. Ubl, 216 Minn.396,13 N.W. 2d 384 (1944).

An interesting concept, unique to Min-nesota and New Jersey, is the "remnantrule." In Barrett v. Perkins, 113 Minn. 480,130 N.W. 67 (1911), the court held that if aplat shows a row of lots of uniform widthwith an irregular end lot, the intent of thesurveyor was to leave all the deficiency orexcess in the end lot. Therefore, whenresurveying such lots, the court's opinionwas that the distances of the uniform lotsshould hold and any overage or underageshould be left in the irregular lot.

Barrett v. Perkins may leave thesurveyor a little confused. The plat laid outLots 1-21 as 25 feet wide and Lot 22 was75.38 feet along the front. The block was25 feet too short to allow all the lots. The

Lower Court's answer to the problem wasto eliminate Lot 1. The Higher Court saidthat Lot 1 had a right to exist, even agreater right than the other lots because,by virtue of its low number, it was createdfirst. Does this mean that lots createdsimultaneously have rank status accordingto their number or size? A surveyor shouldexamine a survey very closely for otheralternatives before applying the principlesset out in this case.

Barrett v. Perkins did restate a usefulprinciple and offer authority for its exis-tence at page 69:

"In such a case the most the courtis authorized to do, in the form ofcorrecting the apparent mistake, isto apportion the deficiency amongthe several lots . . . The rule re-quiring an apportionment of eitheran excess or deficiency of land insuch cases is well settled."

Apportionment or proration is a methodof distributing discovered excess or defi-ciency between lots within a plat. Lost lotcorners are replaced by setting them online between the nearest existing cornersusing proportioned measurements. Streetsand alleys are not subject to propration. .

In conclusion, when resurveying lots in asubdivision it should be kept in mind that aplat is only a representation of a survey.The intent of the parties are the lines andcomers are originally run and markedupon the ground. •

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