There are Many Reasons NOT to Apportion Dimensions in Subdivision Lots
Updated: Jun 12, 2022
Apportioning excess or deficiency in platted lots seems like a quick and painless solution to a problem subdivision retracement when original corner monumentation is not immediately apparent. While legitimate applications exist, the courts often consider apportionment a poor substitute for other methods of determining the limits of ownership.
Many factors contribute to the difficulty of refining ‘bright-line’ standards for the correct application of apportioning, including:
(1) If a single plat or related group of documents creates a ‘simultaneous conveyance’ or ‘sequential conveyance’ situation.
(2) Whether individual lot corner markers were actually set by the original surveyor of the division.
(3) If individual deeds associated with sales by plat lot include detailed lot descriptions in addition to their references to the source plat.
(4) Whether a mathematical blunder can be traced to a single parcel within the block.
(5) The status of public ways around the block—roads and alleys may have existed prior to the subdivision, or may have been created concurrently or after the lots. Corollary: alleys or roads shown on the plat and dedicated to public use may have senior rights over the lots in some situations.
(6) The apparent intent of the subdivision developer regarding ‘remnant’ or irregular lots.
(7) Structures or lines of possession on the parent tract that pre-date the original subdivision.
(8) The permanence, and age of structures constructed on the lots after they were created.
(9) The age of the original plat, and the span of time between its creation and the present date.
(10) Demonstrated reliance by lot purchasers on subsequent surveys.
(11) Mitigating circumstances based on rules associated with government boundaries and aliquot descriptions.
Items (1) through (7) above are relevant to proving the original intent of the original parties.
Items (8) through (11) also may be considered evidence of original intent via the Common Grantor Doctrine, Parol Agreement, or Practical Location. This group can also (depending on jurisdiction) establish new boundaries by Adverse Possession, Acquiescence or Estoppel. Where lots originating in ancient subdivisions have been occupied up to fixed and certain boundaries, the latter group of principles often prevail.
This article focuses primarily on two decisions—from neighboring states Ohio and Indiana—to highlight the problems associated with over-reliance on apportionment.
Ohio: Labus v. Jones: 93 Ohio Law Abs. 161 (1963)
This dispute concerns lots in Davis’ Fourth Addition to the Village of Mineral City, Ohio. The map was drawn in December 1890—it is probable that lot corners were not set when the plat was recorded. A partial copy of the map can be seen below. Lots west of the alley are dimensioned as 99 by 49.5 feet. Lots to the east are 92 by 49.5 feet, except for lot 242, an irregular lot with a south line dimension of 95.75 feet. Alleys and streets shown were dedicated to public use. Alleys were described as 1 rod wide.
Relevant portion of the original recorded plat.
The measured dimensions from the railroad on the east side to the western road were found to be between 10.5 and 12.8 feet less than indicated by the original plat dimensions.
In Ohio circa 1890, recording the plat operated to immediately dedicate streets to the municipality. As a result, the 16.5-foot alley has senior rights over the lots. Lots 161 through 164 must be treated as a single block, and 173 through 176 are a separate block. Any apportionment of dimensions must be restricted to a single block of lots, making full allowance for the dedicated streets and alleys.
The Ohio court states well-established principles for apportioning deficiencies found in plat dimensions: “if after a tract of land has been subdivided into parts or lots, and title thereto has become vested in different persons, it is discovered that the original tract contained either more or less than the area assigned to it in a plan or prior deed, the excess should be divided among, or the deficiency borne by all of the smaller tracts or lots in proportion to their areas.”
The most critical limitation of the rule of apportionment is also highlighted: “Although it is the general rule that where land is subdivided by a plat, the shortage shall be apportioned among all of the lots, such apportionment will only be made in the absence of facts showing that equity does not require the application of a different rule.”
Apportionment is also subject to other restrictions. Where there has been a prior agreement regarding boundaries or adverse possession to fixed lines, apportionment is not applied.
In the present dispute—as is common on town lots platted decades previously—the court concluded that it was impractical to re-locate all boundary lines in the subdivision because it would destabilize lots, streets and alleys throughout the area. At least 16 other lots would have been affected by any redistribution of property rights. Since the alley was dedicated to public use prior to the sale of lots, the deficiency was borne by the lot owners.
Geiger v. Uhl, 204 Ind. 135 (1932)
A seemingly similar dispute played out in Indianapolis at the intersection of 22nd Street and North Meridian Street. East-facing buildings were constructed on the two northern parcels of the block, their locations consistent with the plat dimensions for 50-foot lots. The next parcel south (appellant) was described as 40 feet in width. Additional parcels to the south were not party to the litigation. While this entire block of lots originated as a single platted subdivision, some lots—including the appellants—were sold by metes and bounds description rather than by lot number. In addition, the block included several irregular lots, including a boundary defined by “The Old State Ditch” that existed at the time of the original subdivision
The actual north-south measurement between 22nd Street (to the north) and McLean Place (to the south) was ‘short’ of the record dimensions by 1.4 feet—and this minor discrepancy is spread over numerous small lots extending almost 400 feet. Parcels in this block had been occupied by various parties for at least 30 years. Buildings were constructed consistent with lines staked by various purchasers between 1900 and 1925. Despite these circumstances, the appellant claimed that the disputed lot boundaries be apportioned.
This court admits the legitimacy of the Rule of Apportionment: “where a tract of land is subdivided and is subsequently found to contain either more or less than the aggregate amount called for in the surveys of the tracts within it, the proper course is to apportion the excess or deficiency among the several tracts, 9 C. J. 295, except so far as possession has fixed the limits…” Due to long possession of several lots in this block, the last phrase of the preceding quotation is one major stumbling block to application of the rule.
Judge Martin also includes several cautionary statements limiting the application of the rule: “…it is mere guess work to say arbitrarily that the error extended uniformly along the whole frontage, and it is a rule that is more properly prescribed by legislation…”
Another objection to apportionment in this instance should be of particular concern to land use professionals—the request by a landowner that only two lots be apportioned. The seemingly painless solution to an excess or deficiency ignores the reality that a later dispute between other property owners could result in repeated readjustment of boundary lines, destabilizing property titles along an entire street.
On the other hand, correct application of the principle would affect property rights of owners who were not party to this dispute and may not have been aware of any problem: “Its application when only one or two property owners are litigants, out of the many among whom a deficiency is distributed, must be careful in order to avoid adjudicating the rights of those not before the court.”
The court also considers complications associated with the existence of irregular/remainder lots: “A qualification of the apportionment rule is that when dimensions are given to each subdivision (lot) except one (or two) which is an irregular space, without dimensions designated, such remnant portion will bear the shortage or receive the overplus.”
An argument over proper application of the “Remnant Rule” was also discussed in this decision. This limited principle applies specifically to subdivision plats where an irregular lot is dimensioned in a manner similar to other parcels. In this case, the court cites two competing theories, both supported by case law in other states:
(1) The appellee contends that the “remnant” rule is properly applied also where a tract is subdivided into lots of regular dimensions and a remnant or irregular lot or lots, all with dimensions specified on the plat, and a deficiency or excess subsequently appears; that in such case the deficiency or excess must fall on or be assigned to the irregular tract or tracts, regardless of the dimensions stated on the plat.
(2) The appellant denies the correctness of this last application of the remnant qualification of the apportionment rule and says that the shortage must be apportioned among all lots where the dimensions of the irregular lots as well as the regular lots are fixed in the plat.
Ironically, both parties were actually in possession of the dimensions described in their deed. The court declined to rule on the
Remnant Rule: Additional Discussion
The majority stance for the Remnant Rule is admirably clarified in Pereles v. Magoon, 78 Wis. 27 (1890): “Had the plat given the specific dimensions of each of the several lots fronting on Jefferson street except lot 1, and given no dimensions of that, then such absence of the dimensions of that lot would have evinced an intention that it should include whatever should be left after setting off the several lots of which the specific dimensions had thus been given, whether the same should be more or less; but where, as here, the specific dimensions of each and all of the several lots fronting on Jefferson street are given upon the plat, and there is no lot in the block of which the specific dimensions are not thus given, there seems to be no substantial reason why such excess should be given wholly to one lot merely because its dimensions, as given upon the plat, differ from those of the other lots.”
An alternate formulation of the Remnant Rule is discussed in the New York decision Mechler v. Dehn, 117 Misc. 591 (1922). Arguments made here may be considered either a corollary or an exception to the general rule. Judge Cropsey concluded that the map demonstrated a clear intent to create regular 25-foot lots, and that irregular lots were intended to absorb any irregularities: “While this is the general rule there is an exception to it which I think applies here. It is this. Where a map shows a plotting of a considerable tract and the creation of lots of regular width and depth, if a few of them are of irregular dimensions they are deemed to be the remnant of what remained of the entire tract after plotting the regular lots and if there is a shortage in the entire frontage the irregular sized lots must bear it. This is held upon the assumption that the owner intended to get as many regular sized lots as possible and that whatever remained of his frontage was to go into the irregular shaped plot and hence if he had more or less than the map showed the difference in the frontage would effect only the irregular lot.”
Note carefully that, where the irregular or remnant lot has no dimensions, the excess or deficiency will generally be awarded to the irregular lot.
Other rulings emphasize that apportioning excess or deficiency is only appropriate where the original survey work was performed at the same time, creating a reasonable assumption of equal standing of all parcels created. The rule is also inappropriate where frontage is shown on all lots except for an irregular lot that is not dimensioned. Routh v. Williams: 141 Fla. 334, 193 So. 71 (1940)
One area where apportioning is more widely accepted involves various aliquot divisions of sections in the Public Land System. Existing parcels are frequently described with language such as “…being the southwest quarter of the northeast quarter…” In these circumstances, the original government monuments control and the aliquot boundaries must be determined by reference to verified government boundaries.
Even in regions and circumstances where aliquot descriptions are the norm, established limits of possession and use may control over calculated lines under the Common Grantor Doctrine, Practical Location, Acquiescence, or Adverse Possession. Applicability of these doctrines vary by state and are also influenced by the specific circumstances of the dispute.
It is clear that the physical possession over a span of years or decades tends to make apportionment less relevant. After half a century or more has passed since the original division, subsequent development combined with use, re-sale and/or recombination of original parcels often strengthens presumptions of ownership based on adverse use or agreed lines. Subdivision requirements of more recent origins, requiring that all lot corners be physically marked, further marginalize apportionment in favor of the recovery of original monumentation. Tricks with mathematics should not be used as a replacement for legitimate boundary retracement principles.
An Unusual Exception: District of Columbia
The Federal City has a specific statute that directs the use of apportionment.
§ 1-1324. Deficiency or excess in measurement of square.
Whenever the Surveyor or a registered land surveyor shall lay off any lot, or any parts into which a square or lot may be subdivided, as provided in this chapter, the Surveyor or a registered land surveyor shall measure the whole of that front of the square on which said lot or part lies, and if, on such admeasurement, the whole front of the square exceeds or falls short of the aggregate of the fronts of the lots on that side of the square, as the same are recorded, the Surveyor or a registered land surveyor shall, except in that portion of the City of Washington included within the limits of what formerly constituted the City of Georgetown, apportion such excess or deficiency among the lots or pieces on that front agreeably to their respective dimensions; and in that portion of the City of Washington included within the limits of what formerly constituted the City of Georgetown, the Surveyor or a registered land surveyor shall allow such excess or charge such deficiency to the highest numbered original lot on that front of the square, or apportion such excess or deficiency among any lots into which such highest numbered original lot may have been subdivided: provided, that wherever in the former City of Georgetown a square or block of land is intersected by the division line between 2 original additions to said City, the excess or deficiency found between the street lines and said division line shall be applied to the highest numbered original lot on each side of said division line, or apportioned among any lots into which such highest numbered original lot may have been subdivided.
Even in the District of Columbia, it should be noted that adverse possession can supersede a boundary determined under the apportioning statute above.