Deed Retracement: Monument Call, Migrating Creek, and a Relocated Road
A 1947 deed conveys Parcel B: 'Beginning at an iron pin at the northeast corner of Lot 7 of the Map of Fairview Acres (1938); thence S 42 deg 15 min E, 640.00 feet to a 24-inch white oak; thence S 47 deg 45 min W, 1,120.00 feet to the centerline of Mill Creek; thence with the meanders of Mill Creek northerly to the old county road; thence with the old county road to the point of beginning.'
The 1938 iron pin is found and holds. At 631.2 ft along S 42 deg 15 min E there is a 27-inch white oak bearing an old blaze and a wire scar at eye level; nothing is found at 640.0 ft. Beyond the oak lies a 2016 subdivision outparcel whose plat shows its west line 9 ft east of the oak. Mill Creek has cut its west bank; aerial photos from 1951, 1978, and 2019 show the channel moving west 30 to 35 ft, with the largest change between 1978 and 1980. The old county road was relocated in 1971 and now lies 60 ft east of its original location; the original grade is visible as an overgrown lane.
1. Where do you establish the southeast corner, at the oak or at 640.00 ft?
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Monuments control over courses and distances. The call 'to a 24-inch white oak' is a call to a natural monument, and a natural monument is the strongest evidence when it can be identified with reasonable certainty.
Identification: the 27-inch oak at 631.2 ft bears an old blaze and a wire scar, consistent with a corner tree used as a fence corner. A 24-inch call in 1947 versus a 27-inch tree now is consistent with roughly 77 years of growth, about 0.04 in per year of diameter, so the size does not disqualify it. An 8.8-ft distance difference is well within the uncertainty created by a tree call and by 1947 chain measurement. Nothing exists at 640.0 ft.
Conclusion: accept the oak as the called corner, tie it, and set a monument at the tree or as close as the root collar permits, with a witness and a note reading 'original 1947 corner tree, 27-in white oak, blazed.' Do not set the corner at 640.00 ft merely because the distance is written to two decimals; a recorded distance is a call, not a guarantee. Record the species, diameter, blaze description, and condition, and photograph the tree. If it is later removed, your record must be sufficient to reestablish the corner.
The analysis would change if the oak had no blaze or scar and a competing tree stood at 640 ft. Then species, size, distance, bearing-tree evidence, and fence junctions would all be weighed. Here the physical evidence points one way, so the distance yields.
2. How do you locate the creek boundary, given the 30- to 35-ft channel movement?
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The creek call is a call to a natural monument that can move, so the legal doctrine matters.
General rule, which varies by state and must be verified: gradual accretion or erosion moves the boundary with the water; avulsion - a sudden, perceptible change in a single event - does not, and the boundary stays at the old channel. The photos show 30 to 35 ft of movement with the largest change between 1978 and 1980. That pattern could be decades of gradual erosion or a single avulsion, so the photos alone do not settle it.
Look for corroboration: bank profiles, soil stratification exposed in the cut bank, vegetation age on the new bank, old fence lines and their relation to the bank, tree scars, and the 1978 versus 1980 channel position. If the change occurred in one flood event, the boundary likely remains at the pre-avulsion thread; if the bank crept west over decades, the boundary is the current thread or ordinary high water mark, depending on the state's rule.
The deed says 'to the centerline of Mill Creek.' Determine whether the grant conveys to the thread of the stream or to the bank; that is jurisdiction-specific and may depend on whether the grantor owned the bed. Survey the current thread, show the 1947 and 1978 channel positions as dashed reference lines, and state plainly that the boundary determination depends on the accretion/avulsion question, which is for counsel. Do not simply run the meander call to the current bank without addressing the doctrine, and do not omit the old channel lines from the plat.
3. What do you do with the call for the old county road, which was relocated 60 ft east in 1971?
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The old county road is a call for a monument. A monument called for in a deed controls over distance, and a later public relocation typically affects the right-of-way, not the fee lines of abutting owners, unless the fee was taken or the road was established by dedication or easement and later abandoned. That is a legal question, but it determines how you draw the parcel.
Steps:
- Recover the original location from the 1971 relocation plans, county right-of-way maps, the visible overgrown lane, fence lines that terminate at the old grade, and utilities or mailboxes that were never moved.
- Plot both the original centerline and the current centerline on your survey.
- Determine what interest the deed's call to 'the old county road' describes - typically the right-of-way line, often 30 to 60 ft wide, not the centerline, and it may be a fee strip or an easement.
- Tie the parcel boundary to the original alignment unless the title documents show otherwise, and show the gap to the 1971 road plainly.
Flag the issue for the title company and counsel: whether the 1971 relocation altered the abutter's boundary depends on the conveyance documents and the state's statutes on road vacation and relocation. If the original lane is the boundary and the current road is 60 ft east, a lender's survey must show that strip, whatever its status, rather than quietly adopting the modern road as the parcel line.