The Deed Description That Calls to a Missing Monument
A 1990 deed to a 12.4-acre parcel reads: "Commence at the NW corner of Section 9, T34S, R22E; thence S 12°14' E, 214.6 ft to a concrete monument; thence S 78°32' W, 1,320.0 ft to a 4-inch concrete monument on the east right-of-way line of County Road 41; thence N 12°14' W, 410.0 ft; thence N 78°32' E, 1,320.0 ft to the point of beginning; LESS the east 100 ft of the west 200 ft." The first concrete monument is missing. The 1988 surveyor's bound field book, filed with the county, records that the monument was a 4-inch by 12-inch concrete monument with a brass cap, tied 6.2 ft S 48° W of a power pole and 18.4 ft east of the centerline of a 24-ft graded road; it states "bearing base: power pole to section corner." Your search finds the power pole and road centerline; the section corner is a 1940s concrete monument 0.3 ft from its record position. The client wants a new deed description "word for word" for a partition and says the old description is fine because it is recorded.
1. How do you interpret the exception 'LESS the east 100 ft of the west 200 ft'?
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The phrase describes a 100-ft-wide strip, not the westernmost 100 ft. First identify the west 200-ft-wide strip measured from the parcel's west boundary; then except the east 100 ft of that 200-ft strip. The excepted strip therefore lies between 100 ft and 200 ft east of the west boundary and runs the full depth of the parcel. On a 1,320-ft-wide parcel, it is a 100-ft by 410-ft strip. The new description should say this expressly rather than repeat the compressed phrase. State the basis of measurement, the bearing of the west line, and the endpoints of the excepted strip. If the west boundary is the County Road 41 line, say so and tie the strip to the monuments on that line. This avoids the common misreading that the west 100 ft is excepted.
2. How do you recover the missing first monument and check the old bearings?
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Use the field book ties as extrinsic evidence: search 6.2 ft S 48° W of the power pole and 18.4 ft east of the road centerline. Confirm that the power pole is the same pole described, or at least that its position is consistent with the field notes; poles can be replaced, so do not treat it as a permanent monument without corroboration. The section corner is an original 1940s monument and controls over its record position, even though it is 0.3 ft off. The old bearing base was 'power pole to section corner'; measure that line and compare it with the bearings used in the deed. If the measured bearing differs, determine whether the difference is consistent with the old basis of bearings and whether the 1988 survey used record or field bearings. Do not assume the deed bearings are astronomic north. Recompute the missing monument's position from the best available evidence and set a new monument at the recovered corner or at the calculated position if the original cannot be found.
3. What should the new description contain, and what do you tell the client about copying the old one?
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The new description should include a clear point of commencement, a basis of bearings tied to the found 1940s section corner and the record bearing base, calls to found or set monuments with concise monument descriptions, the measured bearings and distances, the exception stated in full, and a closing call that returns to the point of beginning. Include ties to the power pole and road centerline as supplemental evidence, but do not make a replaceable power pole the sole control. Show the relationship to the section corner and state whether the bearings are based on the old record or on your field determination. Tell the client that a recorded description is not automatically a good description; this one calls to a monument that no longer exists and lacks an express basis of bearings. A word-for-word copy would carry the same ambiguity into the partition deed. The new description should preserve the old intent while making the boundary recoverable by the next surveyor.