Extrinsic Evidence

[Dave Karoly, PLS]

Generally, where a contract or deed are unambiguous on their face, extrinsic or parol evidence will not be admitted to vary the terms of the deed or contract.

Except that they will, ha ha.

I was looking into California's Practical Location Doctrine (where a grantor conveys a portion of his tract and marks the new boundary on the ground, that will prevail against the description in the deed). It turns out part of the problem with this is it conflicts with the parol evidence rule.

An important case, French v. Brinkman, 60 Cal. 2d 547 (1963), is cited by many subsequent cases as allowing an exception to the rule prohibiting extrinsic evidence modifying an unambiguous contract (including cases outside of real property). French seems to require a mutual mistake but another case citing it more or less says words are just ambiguous unlike mathematical formulas and besides you need testimony to determine if interpretation of the grant is susceptible to more than one meaning...

From Murphy Slough Assn. v. Avila, 27 Cal. App. 3d 649 (1972):
"As a point of departure we must first decide the propriety of the trial court's considering evidence extrinsic to the deed in determining the nature of the interest conveyed.

In Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, at page 37 [69 Cal.Rptr. 561, 442 P.2d 641, 4 A.L.R.3d 1373], our Supreme Court ruled that the test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citations]. The court stated that a rule that would limit the determination of the meaning of a written instrument to its four corners merely because it seems to be clear and unambiguous would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.

"If words had absolute and constant referents, it might be possible to discover contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents. 'A word is a symbol of thought but has no arbitrary and fixed meaning like a symbol of algebra or chemistry, . . .' ( Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195. . . .) The meaning of particular words or groups of words varies with the '. . . verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges) . . . . A word has no meaning apart from these factors; much less does it have an objective meaning, one true meaning.' (Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161, 187.) Accordingly, the meaning of a writing '. . . can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended. . . .' [Citations.]" ( Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d 33, at pp. 38-39.)

If the trial court decides after considering the extrinsic evidence that the language of the instrument in the light of all the circumstances is susceptible of either one of the two interpretations contended for, extrinsic evidence relevant to prove either of such meanings is admissible. [citations].

That this interpretive rule is applicable to deeds as well as to contracts and wills, see French v. Brinkman (1963) 60 Cal.2d 547, 552-553..."

[dewardkb]

LOL David.

I never looked upon the act of setting monuments by an owner to make a conveyance "practical location" although the court cites you refer to do.

Original monuments have no error. The intent of the conveyance was to go to those monuments even if they are not described in the deed.

I always looked upon "practical location" as more of a doctrine of adjoining land owners locating the boundary between themselves because nobody knows where it is at. http://scholarship.law.berkeley.edu/cgi ... alawreview

That is a neat topic though, I enjoyed that piece you wrote.

[Steve Martin]

BC&LP 6th ed

11.47 SUMMARY AND INTENTION OF THE PRINCIPLES

"To determine the intent of each term of a deed without considering each term in light of all the others is to err; the intent is to be gathered from all the terms of the deed, the circumstances under which the deed was written, and the facts on the ground"

In Brown's first book, Boundary Control for Surveyors in California (1954), he quotes Walsh v. Hill 38 Cal. 487 (1869):

"[W]e deem it proper to say, that in the construction of written instruments we have never derived much aid from the technical rules of the books. The only rule of much value - one which if frequently shadowed forth, but seldom, if ever, expressly stated in the books - is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by its four corners, read it"

[Dave Karoly, PLS]

Skelton quotes that too in his a Establishment Chapter.

The California Courts seem to have loosened up on allowing extrinsic evidence in cases of contracts being unambiguous on their face but otherwise tightening up in their more strict adherence to deed descriptions.

It's easy to find recent boundary cases where one side pleads the Agreed Boundary Doctrine (usually shot down on appeal) but I haven't looked for cases where the parties attempt to prove a boundary by extrinsic evidence or Practical Location (capitalized). I've looked for cases that reference French but mostly found contract cases in other areas (not boundary).

An example where I think Boundary Surveyors often miss the boat is as follows: a Deed description (let's call it the Binghamton parcel) ties to a 1/16th corner which has a very old monument purporting to mark it at the time of the first Deed in Binghamton's chain of title. McHale owns the remainder parcel in the same chain of title back to their common predecessor. The Binghamton/McHale boundary location is dependent on this particular 1/16th corner. The established boundary is located substantially in agreement with the old monument. The Deed description is unambiguous on its face containing a distance call, say 500'.

Recently, several Decades after the boundary was established a Survey is made but the chain of title is not researched because it is deemed unnecessary since the description is unambiguous (thence easterly 500'). The 1/16th corner is set at a new location (about 80' away) by a new Chapter 3 subdivision of the section. The proper thing to do is to research the chain of title to determine the circumstances under which the boundary was created (by Deed description referencing a monument existing at the time of the grant) so that the Boundary Surveyor can most closely put the intentions of the parties into effect.

[Steve Martin]

Dave,

I agree with you. Sometimes there are contemporaneous documents such as right of way plats and survey field notes that evidence the circumstances under which the deed was created. All too often those are overlooked in favor of plotting record dimensions from a few old monuments.

[dewardkb]

That is a really good antidote for reading the deed "by the four corners" David. I love Steve's quote and these type of principles of practice can never be stated too many times.

[dmi]

thanks thanks thanks
Not only is this research you are doing good for you, but is is immensely important to the rest of us as well. Thank you very much for sharing...
I am interested to see what you turn up with respect to latent ambiguity.

I know you are not a fan of Brown, but he did provide us with wisdom on a number of matters. I do not think anyone can say it better than he did. For example collect and analyze ALL the relevant and THEN form A PROFESSIONAL OPINION.

He also said that we should do enough surveying to sustain the burden. I think both of those things are pretty good advice.

So the surveyor who finds a way to place the deed geometry on the ground and that is their only basis for the location, has failed to do their job. Just as the surveyor who lands on the fence line by itself alone has fail to consider all the relevant evidence. If we say it is the fence line or the deed line,we had better be able to prove either opinion. I disagree with Mr. Karoly on the fundamental source of our problem. The fundamentals were never learned in the first place, or they were forgotten or more than likely they were eschewed for economic expedience

[mpallamary]

I have successfully applied patent and latent ambiguity in triggering insurance coverage and prevailing in litigation. it usually comes down to educating the court. I have also successfully argued adverse possession (for the underlying fee beneath an unimproved paper street). The key is always to understand the law and then find the elements that are deemed of value to the court and the attorney so that the facts are in support of the case law you are relying on. That is the surveyor's most important role. I find that far too many surveyors stand on their measurement skills and in the end, those are largely worthless. Yes, I am impressed that your values are to the nearest ten thousandth - the correct corner is 20 feet away.....

As to anyone who wants to learn more about Curt Brown, purchase my book and after reading it, give me a call. If you can't afford to buy one, I will send it to you as a gift. http://bookstore.authorhouse.com/Produc ... icles.aspx

Curt did a lot of wonderful work and he was operating in the environment that existed 50 years ago. A lot has changed since them.

[Dave Karoly, PLS]

My understanding is evolving :-)

My motivation is to educate myself in legal matters. In the past I got caught up in the debate at times, I'm not immune to the human desire to win the argument. If I'm wrong I want to find out about it. I'm trying not to debate at this point.

There is no doubt Curtis Brown did a great thing in writing his books. Boundary control is a good overview of boundary surveying with cites from many different states but some principles are nearly the same in the different States (not to say there aren't significant differences) such as Deeds and Subdivisions. I think what is needed to advance to the next level is a state specific book but there aren't enough of us for it to be a money making venture.

A problem I have seen which is certainly not Brown's fault is that at times a Surveyor did not know when to set the book down, drop back and punt. The El Dorado case (Nelidov) involved a 1/16th corner that set per Chapter 3 wound up behind the adjoiner's house (the wrong side) in the face of a 1/16th line established for decades before that. However, it's easy to focus on the negative but there are a lot of people trying to do it right too.

What I'm doing here is having a topic in mind which I am researching the case law, in this case the doctrine of "practical location" per French v. Brinkman. That led to case's discussing admitting extrinsic evidence even though the deed is patently unambiguous. So I find something interesting and post it here but it isn't really a complete article. This forum also doesn't make it very clear that most of the original post is quoted from the various cases. I put quotes around it but they don't stand out. I only wrote one or two lines of it.

[Dave Karoly, PLS]

The Chronicles e-book is only $25.

[mpallamary]

Dave,

Curt started out writing a state specific book and that evolved into a national book. I have proposed some seminars and topics like the ones you are discussing to the Central Office but there is no interest. I am writing a statewide book dealing with reversionary rights and laws unique to California. I have collected and researched the 100 most important cases on the topic and I have been travelling across the state researching and documenting these sites. Right now I don't have enough time to focus on it. I have made numerous suggestions every year to the CLSA conference committee to present topics like this but there is no interest. When I published the Curt Brown Chronicles a few years ago, I offered to make it available for CLSA to sell and make a profit but there was no interest. Curt would be the first one to tell you you'd be foolish to grab his book and go. He recognized that it would be largely obsolete in a relatively short period. Roy Minnick used to publish an annual book on changes in the law and he presented a one day seminar every year and it was very helpful. I presented that idea to CLSA but there was no interest. I offered to write some articles in the Cal Surveyor about this topic but there was no interest. That is why I write my two columns in The American Surveyor magazine as there is a considerable amount of interest across the country in Brown's work and similar areas. It is unfortunate that CLSA is not interested in anything Brown said. On the flip side, your contributions are very helpful as are those of the folks who make positive and civil postings for the betterment of the profession. It is, perhaps the closest thing we have to continuing education.

[mpallamary]

Oops, forgot about that version! Thanks

[dmi]

THANKS FOR SHARING