California Surveyors Forums

Anthony Maffia wrote:+1 for Evan's response to Bryan.

Anthony,

I didn't know that we keep score on the forum. As for a response to Evan I think you are taking liberties with the words "intent" and "interpret" when you are describing what exactly should be done with a deed description.

According to Brown intent means "the true meaning. The intent of a deed is determined from the written words only." (Boundary Control and Legal Principles, Third Edition)

As for interpret Black's defines it as "To construe; to seek out the meaning of language; to translate orally from one tongue to another." (Black's Law Dictionary, Sixth Edition)

The only reason I bring for the text definitions is due to the fact that there is a misunderstanding of the words in common language (Or at least it seems to be).

Brown states that "After a conveyance has been made, however, the courts have the the exclusive right to interpret the meaning and intent of the words used, the rights conferred, and the location of the land described in the written document or instrument."(Boundary Control and Legal Principles, Third Edition)

So basically, as a Surveyor, we do not have the right to either interpret a deed, that is of the courts decision. As for finding the intent of the deed it is the black words written on the paper, end of story. Intent is not defined as something for which you go back in time to define your opinion. That is what a court does using case law and other resources. A deed description as long as the description is clear, is simply put as being read by the four corners/the words on the paper. As for going back in time and using what you think is the proper way of interpreting a deed, I think you are overstepping your boundaries as a land surveyor and becoming a quasi-judicial branch of the court system, something which, at least in the text that I have read so far, is outside the realms of the duties of a surveyor.

I am sure Dave W. would have a few more texts and sources which say the same. I just happened to be reading Brown's last night and found this and thought I would share with the class.


Bryan Mundia
------------------------
LSIT

This crawdaddy is reading you all loud and clear.
Great topic.

I don't believe that Anthony was "keeping score" with his post. It's common on most bulletin boards to post up a "+1" as an abbreviation for "me too," meaning, "I agree with so and so." That's all he meant.

Thanks Lee.

Bryan,

If surveyors can't interpret terms in a deed by their plain meanings and in ways that the courts have already guided us by, then what you are saying is what, that we have to begin each survey with a request for a court to interpret the descriptions for us before we begin? Or are you suggesting that we blindly follow the exact verbiage on a particular sheet, not informing ourselves of the meaning of the words included by referring to other documents incorporated into the deed of the subject property by reference, and without analysis, stake out a boundary that we know or should know that the court will reject in favor of a location which puts the deed of the subject parcel in context of it's referred to/incorporated documents and the circumstances surrounding the writing of the deed?

If you are suggesting either, and if what you are suggesting is true, then we should all just turn in our licenses and let measurement techs take over.


I have taken no liberties and will explain in more detail later. But be aware of the basic and well founded principle that a document referred to in a deed is fully incorporated into it as if the entire referred to document were transcribed into or attached to the subject document.

Failing to consider the boundary of the parent parcel, how it is described, the retained title after previous conveyances form it are considered, and how that description could be described absent extrinsic evidence, then you are not meeting the standard of care. Whenever a parcel is described as being a portion of another, adequate research of the parent parcel is absolutely necessary.

The only way that one can infer a remainder parcel from deeds from a parent parcel where the plainly stated widths add up to, no more, no less than the stated width of the parent parcel is if one introduces extrinsic evidence.

Extrinsic evidence cannot be introduced to add to or take away from the intent as expressed in the language of the conveyances. Stating that there is a mysterious third parcel, supposedly retained by the original grantor when the plain language of the conveyances leaves no room for such a parcel is introducing an intent that can only be found by the introduction of extrinsic evidence.

It is the person who finds such a gap, where the record leaves no room for one, who is taking liberties with the words "interpret" and "intent".

Sorry, but not all gaps are real, and it is incumbent upon the knowledgeable PLS to recognize that fact and to perform adequate research to determine whether or not a gap is real, if that answer can be found in the record. Most often, it can.


But, you know. I understand where you're coming from. If you're going to comment, you gotta back up the boss. ;-)

Interpreting Curt Brown from Wooley's PDF:

The Surveyor's function is to locate the boundary where a Court would locate it.

That's a pretty simple concept.

Either the evidence shows 2 parcels and 1 boundary or 3 parcels and 2 boundaries. Each boundary should be located in accordance with the evidence.

I am aware of the reality of life that one of the property owners may disagree with the survey and the surveyor may choose to settle the case because he can go broke winning lawsuits. Cases rarely settle strictly in accordance with the law and evidence; they usually settle because it is monstrously expensive to pursue a case in court.

It is just not practical for most ordinary property owners to pursue litigation.

Evan,

Although I find your post both interesting and informative I do have to disagree. Also, it should be noted that although I do work with Dave Woolley, I agree with Dave because of the fact that the basis for his thoughts and reasoning is backed by case law, professional literature and other reputable sources.

Second, I think that you misconstrued my original thought. You do state that we must only go with the original intent of the written words on a deed, which I agree with. Where I think you diverge is at the fact that you feel we need to take every legal description to a court for interpretation when in fact this is only necessary when the written word or intent cannot be understood. I know there is a written source for this but I myself am not able to find a cite at the moment.

I do agree that for descriptions such as East 50 and West 50 they need to have proper chain of title performed in order to understand junior and senior rights from the parent parcel. However, I feel that this is only meeting the necessary standard of care as a surveyor who is establishing lines on the ground and not going above and beyond what is required.

I ask, if there were no such thing as a gap, then why do deed reformation and quiet title actions exist?

I honestly feel that there is no difference between assuming who should get extra land when there is an excess and that of saying that 0.3' or 0.5' is close enough to call it record/measured based on past records.

I pose one other question as I am interested, where is the cut off when it comes to "fixing" gaps or determining intent? Is it 2', is it 10' or is it 0.5'? Also, how do you determine that fine line in the sand? Is there some sort of written guide for this cut off point or is it something that you and the other local surveyors agree upon?

How about a different example? A real one that surfaced during my current project.

As opposed to the two 50-foot lots example, this one involves different P.O.C.s I would love to hear from both sides on their approach.

The Facts:

1. All lots in my block are Metes & Bounds, sequential conveyances.
2. Lot #1 and Lot #2 have P.O.C.s to the same tract, but to different lot corners.
3. Each one takes a different route to their P.O.B.s.
4. Each description closes and is 100% complete and unambiguous, internally.
5. All lines are either parallel with, or at 90° to Alemar Way.
6. Due to the different P.O.C.s there is a 0.68’ gap between them.
7. Lot #1 has no calls.
8. Lot #2 has calls (but it remains to be proven that they reflect true Jr/Sr rights in the area).
9. Though I discovered this, it really does not impact my client’s project.
10. My hunch is that (70 years ago) someone mis-calc’d things, due to the N1°15’W bearing.

Now…if I were surveying #1 or #2, my first act would be to proceed with title searches to verify that the calls in Deed #2 to supposedly senior grants were, in fact, legitimate and not just some scrivener’s fantasy.

Let’s assume (for this discussion) that the calls were NOT grounded in historical fact—that there were no calls in the creation deed for #2…thus, leaving us with two internally consistent descriptions, and the resulting gap.

Should the surveyor assert there is no gap, based on, for example, the assumption that the scriveners “intendedâ€￾ the descriptions to be compatible and simply did their math wrong?

Or do I work with both owners to begin a Quiet Title action to distribute the difference?

Or something else?

(As a side note, 3 out of my last 5 surveys involved gap examples similar to the above.)

Lee,

I would like some more information about your question just to make it a little more interesting. If you could please answer the following:

- Are Lot #1 and #2 a total sum of a parent parcel?
- What year were the deeds for Lot #1 and #2 recorded?
- Is there any evidence that would show that this gap exists on the ground?

I would find the creating deeds and subsequently search for unrecorded survey records to determine if I could uncover the original survey from which the deeds were written.

I have found that the majority of the times a survey was conducted prior to the description being written. If you can show that the descriptions were written from a survey which established points or found them, you'd be doing a true retracement. Unfortunately, that can be a quite a job to find the appropriate evidence to make your determination.

Many of the scrivener's never called for the monumentation, but it was what was represented to and relied upon by the grantor's.

I will make this as simple as I can.

Deed 1: Lot 1 of XYZ Tract which on the face of the Plat is 100' wide.

Deed 2: The east 50' of Lot 1.

Deed 3: The west 50' of Lot 1.

80 years go by.

Surveyor finds original monuments at the corners of Lot 1 and it is 101.76' feet wide, oops.

Staying within the four corners of the Deeds I see two parcels and one boundary.

Obviously there is a conflict that has to be resolved by the Land Surveyor outside of the four corners of the Deeds. If you stay within the four corners of the Deeds then either one or both parcels will get wider but last time I checked distances are near the bottom of the conflict resolution list.

I am well aware that following the law can get you sued and you may have to settle for expediency's sake.

There is no need to insult those who disagree with us in final sentences of posts.

Final post-I have nothing else to say.

Bryan...

I haven't gotten that far into the research at this point. My hunch is that the entire block, like the one to the north, was originally one large lot, stretched out in the E-W direction. I will be asking the title company to locate the original deed, plus the subsequent, original creation deeds for the parcels on the west end of the block.

And that is why alot of us follow this board, to confirm or modify our knowledge base. For alot of us, it is our only particul way to gain CE's

And that is why some of us follow the forum, to confirm or modify our knowledge base. Should be a way to claim CE's

sorry for the double post, my PC is looking forward to the weekend.

More from Deering's on CCP §1856:

The forgoing discussion of subdivisions (a) and (b) indicates the extent of limitations imposed by Section 1856. Except to the extent indicated in that discussion, the section does not make inadmissable evidence offered to explain or supplement the terms of a written agreement. Subdivision (c) makes clear that the parol evidence rule does not make inadmissable evidence of course of dealing, usage of trade, and course of performance to explain or supplement the terms of a writing stating the agreement of the parties, in order that the true understanding of the parties as to the agreement may be reached. Such writings are to be read on the assumption that the course of prior dealings between the parties and the usages of trade were taken for granted when the document was phrased. Unless carefully negated, they have become an element of the meaning of the words used. Similarly, the course of actual performance by the parties is considered the best indication of what the parties intended the writing to mean. Subdivision (c) thus definitively rejects (1) the premise that the language used has the meaning attributable to such language by rules of construction existing in the law rather than the meaning which arises out of the context in which it was used and (2) the requirement that a condition precedent to the admissability of the type of evidence specified in the subdivision is an original determination that the language used is ambiguous.

[Further in the discussion]
Section 1856 does not make inadmissable extrinsic evidence, other than that made inadmissable by subdivisions (a) and (b), offered to explain the meaning of terms of a written agreement, regardless whether the writing is intended by the parties as a final, complete, and exclusive statement of those terms. See subdivision (g). Evidence offered to interpret or explain the meaning of the terms of a written agreement is subject to the normal rules of admissability and construction of instruments, including the rule that the "test of admissability 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.

[End Deering's excerpts]

I also offer here, the entire Section 1856 of the Code of Civil Procedure in order to put all the quotes and partial quote in context with the actual law:

CCP §1856. (a) Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement.
(b) The terms set forth in a writing described in subdivision (a) may be explained or supplemented by evidence of consistent additional terms unless the writing is intended also as a complete and exclusive statement of the terms of the agreement.
(c) The terms set forth in a writing described in subdivision (a) may be explained or supplemented by course of dealing or usage of trade or by course of performance.
(d) The court shall determine whether the writing is intended by the parties as a final expression of their agreement with respect to such terms as are included therein and whether the writing is intended also as a complete and exclusive statement of the terms of the agreement.
(e) Where a mistake or imperfection of the writing is put in issue by the pleadings, this section does not exclude evidence relevant to that issue.
(f) Where the validity of the agreement is the fact in dispute, this section does not exclude evidence relevant to that issue.
(g) This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud.
(h) As used in this section, the term agreement includes deeds and wills, as well as contracts between parties.


And because they are also pertinent to the discussion, I'll offer these sections which speak to inserting a little common sense into your analysis in order to get to the truth of whichever instance you are faced with:


CCP §1860. For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the Judge be placed in the position of those whose language he is to interpret.


CCP §1861. The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is nevertheless admissible that they have a local, technical, or otherwise peculiar signification, and were so used and understood in the particular instance, in which case the agreement must be construed accordingly.


And to remind everyone that where a written instrument is reasonably susceptible to two meanings, that it is the grantee rather than the grantor who is to be favered, I offer this:

CCP §1864. When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it, and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.


What all this means is that one must put the writing in context to properly discern what the intent expressed in it actually is.

Going back to Jim's example from the lease thread, that is a parent parcel 140' wide, and two subsequent grants of the W 70' and the E 60', and applying these sections of the CCP, one cannot offer extrinsic evidence that they meant to say 80' when they said 70' because it clearly contradicts the clear meaning of the terms. Since the parts do not add up to the whole, parol or other extrinsic evidence cannot be now added to close that (capitalized for Bryan) VERY REAL GAP.

But, in the example where the parent parcel was 100' wide by record and the two subsequent conveyances were for the W 50' and the E 50', everyone but the surveyor will see that 50 + 50 = 100 and presume that it was intended that the whole of the parent tract be disposed of between the two conveyances. Being surveyors, we know that a record distance will rarely equal a measured distance, so should understand that such descriptions are susceptible to more than one meaning.

So we need to look to CCP Sections 1856(g) and 1860 which directs us to consider the circumstances existing when the instrument was written. And if we doubt that we are supposed to do it, that particular words are subject to particular constructions and that we must follow them, section 1864 makes it clear that we need to consider the alternate and effectively sends us back to 1856 and 1860.


Sticking with the 50 + 50 = 100 example, and then adding in the EXTRINSIC evidence of measurements, we find that there is 102' across the width of the parent parcel. This suggests to us, as surveyors, that 1) since the record parts total up to the record whole, the intent was for 2 parcels and the first 50 gets 50 as the sr parcel and the 2nd gets the remainder since it was most likely that by the 2nd conveyance the grantor intended to completely divest himself of the property; 2) since the record parts total up to the record whole, the grantor intended to completely divest himself of the property and so there are two parcels, the dividing line being at some location other than the E line of the W 50' (assuming it sr) based upon some other boundary theory of establishment or repose beyond the scope of this discussion; or 3) that despite the fact that the record parts total to the record whole, that there was some unexpressed intent by the grantor which was understood by the grantees, that the grantor retain some portion of land not present by record, and so we must glean the existence of a previously unrecognized, unreserved, undescribed parcel of land and take it upon ourselves to assign ownership of this heretofore hidden parcel to a long gone former owner of the parent parcel.

No matter how you decide on that, you are interpreting intent. It is impossible to make a boundary location determination without interpreting intent, so you do it whether you want to admit it or not. So you are deciding intent, and I ask this in light of that:

Is it more of a stretch to determine that a record 50' is actually 52' on the ground, or to determine that an additional parcel for which there is no room in the record to exist, actually does exist by adding the extrinsic evidence of your measurements which were unavailable to the parties to the instruments executed several years ago.

Before you answer, take note that your measurement evidence is inadmissable to determine intent since it was not available to inform the parties at the time the instrument was drafeted and executed. Also review §1864 "that sense is to prevail against either party in which he supposed the other understood it". And recall this from Deering's: "Such writings are to be read on the assumption that the course of prior dealings between the parties and the usages of trade were taken for granted when the document was phrased. Unless carefully negated, they have become an element of the meaning of the words used. Similarly, the course of actual performance by the parties is considered the best indication of what the parties intended the writing to mean."

I've been addressing the boundary determination issues and not any reformation issues. So just to touch on that, when a phantom gap is found, IMO the surveyor has a duty to inform the client where he (the surveyor) believes the boundary to be, but also to inform the client of the discrepancy between the size of his parcel by strict and slavish adherence to dimensions stated in his deed, and the boundary location according to a more thorough investigation and understanding of what the law says.

The surveyor should, since the boundary location is susceptible to an alternate location, either from a willful or misguided ignoring of record and physical evidence, or by a different but still reasonable weighing of such evidence, suggest a remedy as appropriate, be it a deed reformation, a QCD from the grantor if still available, LLA, or QT action.

While we hope that the client would follow our advice and clean it up to make it so easy even a chainman could follow it, the client might decide not to take any action, and we can't force him to. He may decide he's spent enough money, or may reason that since you were able to figure it out, the next surveyor that comes through should too.

And (again for Bryan), if a real gap is encountered, or a situation ambiguous enough that the surveyor cannot determine from the record whether a remainder was intended or not, or from record and field evidence cannot determine the location of the line or lines in question, then you can always give the client the choice to do what is necessary to clear up the descriptions sufficiently that it expresses intent and allows you to determine location, or you can halt the survey.



And for Woodcutter: To add support for your reasoning, if by record there can be no gap, by my understanding of the discussion in Deering's, it is impossible for the grantor to "accidently" retain the extra found by measurements made at some later date. In such a case, any unknown remainder would have had to have been positively reserved by the grantor in order for the grantor to retain any title.

Looking at the other side and assuming all the facts are the same, save for the fact that the parent parcel is found to be 2' smaller than record,I am confident that, to a surveyor , we would find the senior to be 50' and the junior to be 48'.

Woodcutter wrote:Evan, I guess I was confusing by saying "accidently".

I was simply trying to convey the following in addressing Dave's question about LLAs:

For those who think gaps are created by shortcomings of the original partitioning documents, a LLA would not be technically possible since the grantees never received title to the gap.

For those who think (most) gaps do not actually exist, as they were never intended to be created, then a LLA would not be necessary, as the original partitioning documents can be interpreted by the surveyor as having contained the excess by the rules of apportionment (i.e. sequential or simultaneous), and therefor only a record of survey would be necessary.

Anyways, again, why not empower the surveyor by tweeking the statutes to make it clear we have the abiilty to determine intent?

There are too many widely varying ways in which an apparent or real gap may be found or introduced. The code sections needed to address gaps would probably start out being about as long as the PLSA to start and grow to the size of the SMA before any of us retire.

Although it can be a confusing topic, as evidenced by the number of surveyors, each with 20+ years experience having such divergent opinions, but I think that the law already has the direction within it to properly handle any real or apparent gap we may run across. IMO, it's first a matter of examining record to determine the nature of the gap, and then a matter of recommending the appropriate administrative or legal remedy, and assuming the appropriate role of primary or support consultant, depending upon remedy.

Whether the remedy needs to be applied prior to making boundary determinations depends, IMO, on whether the record allows for the possibility of a gap or not. Where there is an apparent gap but a complete and proper analysis leads to a boundary location, IMO, we should advise the client that it would be best to remedy any latent, or extrinsic ambiguities, but it may not be necessary to do so before rendering an opinion of the boundary location.

Again, the law provides for the remedies. Some we as surveyors can directly facilitate, others we can only support others to facilitate.

dmi wrote:Looking at the other side and assuming all the facts are the same, save for the fact that the parent parcel is found to be 2' smaller than record,I am confident that, to a surveyor , we would find the senior to be 50' and the junior to be 48'.

[good natured sarcasm]Yeah, trying to be consistent with Dave's logic, who's to say that the grantor didn't have some secret belief that the parcel was really 102' wide and an unexpressed intent to retain the gap he believed to be there? How do we, as surveyors, have the authority to deny him his right to claim the gap he expected to be there when the surveyor discovers it some years later? We can't take away from that intent can we?[/good natured sarcasm]

The opinion that the original gantor had a secret agenda would requiire EVIDENCE to support that assertion. Otherwise, the opinion would be unsound and not defensible as it is unsubtantiated.

dmi wrote:The opinion that the original gantor had a secret agenda would requiire EVIDENCE to support that assertion. Otherwise, the opinion would be unsound and not defensible as it is unsubtantiated.

Exactly, Dane.

It seems to me that some surveyors may have been in artfully defended.

If the junior would suffer a shotage under the rules as they currently stand, it appears to be an inconsistent application for the junior not to gain in the event of an excess. You cannot sell what you do not own comes to mind, when confronted with a shortage.

Your point is well taken. Why stick your neck out if it is not required. There are of course many cases where a surveyor slavishly followed the rules(or followed a selected subset of the rules) and still wound up in trouble. A classic example would by the Oregon case (Arnold/Dykes),