California Surveyors Forums

Olin Edmundson wrote: I've been tempted to stick up for you as you're unnecessarily hounded, but you're out of context and missing the big picture here, my friend.

Thanks on the first part. As to the second, we’ll simply have to agree to disagree on the ridiculousness of surveyors claiming certain gaps exist, to be treated as though the original grantor had intended to retain unusable slivers, or that if even unintended, they can’t be resolved by common survey principles.
Jr. corners not closing on Sr. lines and deed dimensions of junior grants being short of parent parcel dimensions are in the same context and germane to the discussion. Addressing them by declaring original grantor retainorship and clouded title is a path I cannot support for most situations.

All a question of magnitude. In this case, we don't have yet any corners established on the ground, prorating a foot across the three lots does make a certain amount of sense, I could see a judge agreeing. If someone were to set up the three undeveloped lots this way and stake on the ground, I don't know if I'd take issue with it and especially if folks started relying on these points and building to them. Then you do have a potential conflict in survey when you get a third surveyor out there who is adamant that the junior gets full excess.

Olin Edmundson wrote:The "choice" the client is given is to take the 50 feet or go through a process to clean things up. The 50' is a practical working solution to the issue, not a final surveyor's determination of ownership. As such, no record of survey would be filed that may cloud title in the permanent record. You're mis-stating what I wrote here. Probably most of the time, they wouldn't want to mess around with a formal fix, instead just build to 50', work things out with neighbor and move on with their life.

My apologies if I mis-interpreted your statement, no offense was intended. I thought you were implying that the surveyor's opinion on the location of the boundary line itself would be left up to the client, as in let the client decide if they want a 50' lot with no risk or if they want a 50.7' lot with additional risk, and the surveyor would locate the boundaries on the basis of that decision by the client.

Regarding not filing a record of survey without the neighbors agreeing and 'solving the problem' by quitclaim deeds/agreement, that is of course a matter of professional choice. However, I suppose that is why this case is so troublesome. In most situations, the neighbor is unavailable, or the owner doesn't want to take action to 'fix the problem', and the surveyor has been engaged to provide a Site Survey, ALTA Survey, Boundary Survey or the like that shows definite boundary locations and dimensions, for architectural design purposes, Public Agency review, or for title insurance purposes. And of course if the survey triggers a record of survey, as a building layout survey in this case would probably do, the filing of a record of survey showing a boundary resolution would no longer be optional. Of course, the surveyor could decline to proceed with the work if the owner won't 'fix the problem', as in that surveyor's opinion the line is either too uncertain to be located, or even if it susceptible of being located, it is too problematic from a liability perspective to locate it.

If the surveyor declines to proceed without an agreement, wouldn't that preclude them from providing layout services for the 50' building, as that layout would trigger a ROS, thereby obligating the surveyor to arrive at an opinion as to the boundary location?

As to the matter of magnitude, as I understand it magnitude is definitely a factor to be analyzed together with all the other evidence collected during a survey. It is always difficult if not impossible to say what the 'cutoff' would be with regard to magnitude, as a boundary opinion is so factset-dependent. However, that doesn't prevent one from arriving at an opinion based on a given set of facts, such as in the present case. As we all know no two surveys are alike.

It seems the question here is: Is this excess of 0.7' a real problem, rendering these lines so uncertain as to be un-locatable absent owner agreements, or is it not, and is actually something that we should be able to address by application of survey and legal principles like so many of the other ambiguities we encounter in a survey? It seems to me that in this case it is more so the latter.

If one were to come behind a surveyor who many years ago prorated the distance across the three lots, or on the other hand allocated it to lot R, and improvements had been constructed in reliance on that survey, how many of us would 'follow in the footsteps' of that surveyor, and how many would 'correct the sins of the past'? How many would say there was actually a 'gap', if the previous survey said there was not? I am sure all of us here, no matter our opinion on this survey, would all equally hope future surveyors would honor our resolution were they to come behind us... And isn't the only way to make that so to always improve our understanding of the applicable principles in such cases, and actually apply those principles, so that we may make our surveys more supportable, and easier for following surveyors to agree with?

The Title Gap

The gap is a gap in title (“Title Gap”); in most instances it is not a separate parcel as there is no legal description and as described, is not marketable. The land in the Title Gap was simply not conveyed. It is beyond the authority of a land surveyor to allocate ownership without the participation of the owner(s).

The law specific to this situation is found under contract law – more specifically, the rules of construction aka the “four corners”.

“The rule has been invoked that deeds and contracts should be construed in accordance with the intentions of the parties to them. But that is subject to this other rule, that if the instrument is free from ambiguity, such intention must be ascertained from the language of the instrument itself. [citation omitted]..the question is, not what was the intention of the parties, but what is the meaning of the words they used” [citation omitted]

“In construing deeds the primary consideration is the exact technical meaning of the language, not what the grantor intended by those words. It must look at the “four corners”. [citation omitted]

"In the event of ambiguity, decisions have given the court authority to place itself in the position of the grantee and to construe the description in the light of the circumstances (as the court sees it) under which the deed was executed. Under this premise, the court may extend and may consider such elements as condition of the property, the title, boundaries, and other elements that may aid in its interpretations." [citation omitted]
[emphasis added]

For complete text with citations: Robillard, Walter G. and Bouman, Lane J., (1987) Clark on Surveying and Boundaries (5th Ed.) Meanings of Words Used in Descriptions (pp.390-392, 394).

The point being, there is no ambiguity or conflict when the land conveyed can be located on the ground and does not interfere with the rights of another. In the event of a Title Gap all parties are whole. Research will show the California contract law is consistent with the citations provided by Clark.

Consider this, if neither party has title to the land in the gap or alternatively, each party has clear title and the entirety of the land was not conveyed - each party has equal title standing. Neither party has any more or less rights to the land in the Title Gap. This is the reason TIB, perhaps over zealously feeling the need to distribute a Title Gap, did the correct procedure by equally distributing the excess land. However, this is an unnecessary exposure, in the given scenario, if the parties choose to develop land outside of their clear title. Again, ask yourself, why would the junior grant have a greater right to the Title Gap?

Each land surveyor should be able to answer the following:

Does the land surveyor have the authority to go outside the deed when the parties are whole and reallocate the ownership without a written instrument? How does the land surveyor decide the allocation of ownership (there is not a recognized junior or senior in the reallocation)? Imperfect title i.e. Title Gaps only become a problem when the land is developed, occupied or otherwise utilized without clear title. A land surveyor has the authority to fix the title with a choice of several instruments and the cooperation of the owner(s). Why is there any propensity to put the client (public) and the land surveyor at risk simply to make a mathematically comfortable solution that ignores the rules of construction?

Lastly, I have the California land surveying licensing exams from 1969 to 1989 - I have taught from them for many years. The answer to each boundary problem testing the examinee’s knowledge of Title Gaps, which is a common test problem, is to show the gap in title on the ground and recognize the owner is the underlying grantor. This solution is without exception on the exams - exams for minimum competence.

I find it hard to read long posts on the forum. I will write the balance over the weekend in separate readable posts. One post on slander of title and another on the Paul Cuomo article.

Thank you in advance for any comments and/or constructive criticisms. If you look around on the forum you will find compelling counter perspectives from Evan Page on this topic.

DWoolley

RPost did a nice job, on the June 24th post, describing the process dealing with the owner when a land surveyor encounters a gap in title. Olin Edmundson, has also articulated his positions well. Thank you Elias French for driving the conversation with thoughtful inquiry.

Following is a pertinent discussion on this topic from another thread.

[="E_Page"]From the O.P.: Sequential M&B conveyances, based on record dimensions, tied to opposite sides of the parent parcel, no helpful controlling calls. The conveyances appear based on the record, to convey the entire parent parcel. During a field survey the parent parcel is found to be wider than record.

Many surveyors get weak-kneed when anyone mentions "intent" and come close to losing control of their bowels if someone suggests that the surveyor attempt to determine intent.

There's no reason for such angst about intent. It's simply a matter of coming to conclusions based on available information and common sense. The job is investigation and analysis, not guesswork and divination.

It is also beyond our authority to essentially create a newly "discovered" parcel due to finding an alleged excess based on measurements made after the conveyances were made.

A very important basic legal boundary principle is that anytime a measurement of a record course is made and there is a discrepancy between the record measurement and the subsequent one, the record dimension is considered to be correct and the subsequent measurement the one containing error.

In this case, it is very significant that the sum of the conveyed parts is equal to the total of the record dimension of the parent parcel. That is a very strong piece of evidence that no gap was intended. If there is no evidence that the grantor had any reason to have been informed that the parent parcel was anything other than what the original surveyor said it was prior to making the conveyances of the parts, then you are left with reasonably solid evidence of an intent to convey all of the parent parcel between the two conveyances and no evidence of an intent to retain any portion of the parent parcel or to have fraudulently convey part of it to the separate grantees.

If the discovery of a supposed excess was made any time after the 2nd conveyance, that discovery is utterly meaningless as to the number of parcels and cannot be used as the basis of creating a new parcel where no such title previously existed.

If the sum of the parts added up to something other than the record whole of the parent parcel, then you may have a reason to suspect an intent to retain a portion or to have fraudulently convey part that had been previously conveyed.

Example 1: Original surveyor measures and reports Lot A to be 200' wide. Original purchaser (and any subsequent purchaser of Lot A) never has a reason to have another survey performed and so does not. Owner of Lot A conveys the W 70' (Lot A-1) and sometime later, still without being informed that Lot A is anything other than 200', sells the East 130' (Lot A-2).

Since he owned a 200' wide Lot, after selling Lot A-1, he retains, per the record he is aware of, a 130' remainder, no more, no less (by record). When he sells Lot A-2, he identified it as the E 130' of Lot A, which is exactly what he had retained after selling 70', no more and no less (by record).

There is no room to divine an intent to have created a third parcel from land which does not exist according to the measurements of the land which existed at the time of the conveyance of Lot A-2. If a surveyor later comes, makes a measurement showing a value of something greater than 200' between the original corners of Lot A and identifies a portion of land which is neither part of Lot A-1 nor of Lot A-2, he is in effect, divining an intent of the grantor to have retained some previously unidentified portion. That is, the surveyor is assuming this intent without any acceptable evidence to support that conclusion.

Example 2: Original surveyor measures and reports Lot A to be 200' wide. Original purchaser (and any subsequent purchaser of Lot A) never has a reason to have another survey performed and so does not. Owner of Lot A conveys the W 70' (Lot A-1) and sometime later, still without being informed that Lot A is anything other than 200', sells the East 120' (Lot A-2).

In this case, based on record dimensions, there is 10' leftover between the two conveyances. Without any other info, there appears to be an intent by the grantor to have retained a 10' strip.

Is it possible that the grantor made a typo in one of the conveyances and intended to convey all of Lot A? Anything is possible, but we have to stick to facts. And it is the facts known at the time of the conveyances that count. Those are the conditions by which the conveyances were made.

Again, if the surveyor concludes that there are anything other than three resultant portions comprising what was Lot A, he is divining an intent for which there is no evidence.


Turn the situation around such that the recent measurement between the original corner locations of Lot A indicates something less than 200' (an "overlap"). Would you show an area where the owners of Lot A-1 and Lot A-2 both have claim to under separate title?

Here's where some pull out the Surveyors' Rule Book, turn to the section of gaps and overlaps and point out the solidly accepted "rule" that in the case of an overlap, the 1st part conveyed out gets their full measure according to deed, and the 2nd conveyance gets the leftover, regardless of the dimension stated in their deed.

This is what most, if not all of us were taught. It's simple, easy to understand, easy to remember, and more importantly, easy to implement in practice, so we see it as sacrosanct, never question the "rule" and get really uncomfortable when and if anyone has the temerity to do so.

The problem with this, and virtually all "rules" in surveying is that it is incomplete and is only applicable in the (in reality) very rare circumstance where there are no other facts available to bring the true answer to light.

If we follow the "rule" of overlaps without making any further inquiry of the facts, we are in essence saying that the last owner of Lot A intended to defraud the grantees, or at least the Grantee of Lot A-2 by selling some portion of land he had already sold to the Grantee of A-1.

"No I'm not. No. I'm not!, Where do you come up with that Page?"

Well, if you would assume an intent that the last owner of Lot A intended to retain some excess portion to be found at some point several years after the conveyances by identifying a parcel that is neither within A-1 or A-2, then to be consistent in your logic, you would have to assume an intent to sell a portion twice in the event that you find less than the record amount of land.

The first surveyor to measure Lot A subsequent to the original surveyor has no idea whether more or less than 200.00' is going to be found by their measurements. The one thing they can be almost sure of is that they will not measure precisely 200.00' between the original corners.

For the surveyor who has never tried to understand the underlying title issues in a case like this, the primary result of making the measurements is to determine whether they are going to assume (rather than investigate) an unexpressed intent to have retained an unidentified and hidden parcel, or assume an intent to have defrauded the grantees for which he will adjudge the full loss to the owners of A-2 according to the set and arbitrary rule of overlaps.

When surveyors apply a rule like this to a specific situation, it should only be after a diligent investigation has failed to uncover evidence of the actual expressed intent and/or the actual physically established original location. When we apply the rule, we need to realize that we are stating "I couldn't find the facts." We are conceding a defeat. It may be a defeat to the vagaries of time, and one that no other diligent surveyor could overcome, but it is a defeat nonetheless. "I had to resort to cookbook guesswork."

If a surveyor applies this rule (or any similarly very general rule) before making a deeper investigation (as opposed to simply pulling the deeds and making measurements), he is saying either "I'm not fully aware of what my function is, so I'm going to identify a problem for someone else to fix at great cost to the landowners" , or "I have this handy rule to apply, which saves me additional effort I'd need to expend to determine the answers that only my profession is licensed to find. Besides, that part of surveying is boring so I don't want to do it. And, I don't give a darn about the cost and trouble to fix it because that's someone else's problem."

If that characterization ticks you off because you've always applied or been ready to apply the rule in such situations, don't get mad. Think it through. Apply logic to the situation and determine whether it makes sense or if it serves the public.

But then again, if you are one of those who apply the rule simply to avoid doing additional work, then go ahead and get mad. For these folks, logic and education isn't likely to help the surveyor or their clients. If the motivation is to avoid the work to find the correct answer according to available facts, this won't be the only corner cut.[/quote]

Elias French wrote:It seems the question here is: Is this excess of 0.7' a real problem, rendering these lines so uncertain as to be un-locatable absent owner agreements, or is it not, and is actually something that we should be able to address by application of survey and legal principles like so many of the other ambiguities we encounter in a survey? It seems to me that in this case it is more so the latter.

The lines are not uncertain and can be located in the situation described - there is no ambiguity in the title or the location unless the land surveyor created it. Again, it is simply the entirety of the property was not granted in the title. The land surveyor can "fix" the Title Gap if the owners are cooperative and willing to submit to the process. Until the fix has been properly executed the ownership of the Title Gap is up for grabs. I have provided the prevailing "legal principles" i.e. rules of construction.

I have an advantage in that I have researched and taught this particular gap situation every year for many years. As a matter of course, I usually offer a few hundred dollars for anyone that can provide a California citation - other than a color article in a trade rag, arguing de minimus or proclaiming divine knowledge of the intent of the parties outside the document granting the junior excess - that says to close gaps and give the delta to the junior grant. Practically every year someone provides the same reference material that is generally misread from the textbooks we all own. To date nobody has provided the citation. The CACI or BAJI state the same four corners information and citations. Evan Page has written the most detailed response (hat tip Steffan for providing the information) and performed the research. A careful reading of his work will not yield a citation, simply his idea of common sense in going outside of the document to determine intent. I am reluctant to go outside the documents unless there is an ambiguity - a Title Gap is not ambiguity - because the court is unlikely to go outside the document unless there is an adverse claim for an unwritten property right (oxymoron noted). Land surveyors cannot resolve an adverse claim by decree.

Elias French wrote:If one were to come behind a surveyor who many years ago prorated the distance across the three lots, or on the other hand allocated it to lot R, and improvements had been constructed in reliance on that survey, how many of us would 'follow in the footsteps' of that surveyor, and how many would 'correct the sins of the past'? How many would say there was actually a 'gap', if the previous survey said there was not? I am sure all of us here, no matter our opinion on this survey, would all equally hope future surveyors would honor our resolution were they to come behind us... And isn't the only way to make that so to always improve our understanding of the applicable principles in such cases, and actually apply those principles, so that we may make our surveys more supportable, and easier for following surveyors to agree with?

Like all things involving technical professional judgment, it depends. As RPost said, there isn't always a black and white solution in the subsequent mapping of another's work - especially when retracing slipshod work. Land surveyors have a responsibility to understand property rights and cannot simply go along to get along.

Offer up an opinion on this hypothetical:

1922 Subdivision - shows monuments at centerline intersections. No lots were shown as monumented.

1942 - 1962 several surveys, tied to the original monuments, by one surveyor establishing several lots in the block and the adjacent blocks. The overall block measurements differ from the record by less than 3/4" in 600'.

1989 Surveyor performs a two monument tango and monuments a lot in the block.

2008-2015 several surveys piggyback onto the 1989 parcel map. The maps tend to hold 1922 record dimensions from the 1989 monumented survey.

2016 daughter of the original owner from 1948 realizes a 4" shortage, in a 35' lot, due to the 2008-2015 land surveyors holding record from each direction and sandwiching her with the discrepancy.

1. What do you do with the 4" shortage in one lot when you have 6 of the 12 lots in the block monumented and filed between 2008-2015? When in Rome? Telling the client there was never an inch documented, between 1922 and 1988 until 1989 and now, everyone has record except her?

Additional facts:

The original block can be reestablished and shows less than 3/4" in the overall 600' dimension from 1922, but now several homes have been built to the contemporary surveys (2008-2015).

Stick with me, this is a real slander of title story.

DWoolley

Boy did I open up a can of something. There is a detached garage shed existing on Lot C between lots C and R near PL.
Solutions A and B would result in encroachment of shed. Solution C the shed does not encroach. All 3 lots have houses 50+ years old.
The owners are not aware of any "problem" and would have no interest in "fixing" anything. LOt C and R want to put up a fence between them and agreed to a survey so they could put fence on PL. At this point the only one with an issue is the reviewer at County after I submitted ROS

The Color Article by Paul Cuomo

Let me tell you about the Paul Cuomo article referenced by Steffan and quoted by Elias French. 

Paul Cuomo hired me in 1988.  We worked together until his retirement from the County of Orange.  After his retirement we maintained a close relationship until his death in November 2006. Over the course of 18 years we spent a lot of time together- mostly talking about land surveying.  In the years between 2004 and 2006, he would stop by our shop a couple times a week and unhurriedly sit at a table placed in the center of the office.  Oftentimes, he would not really speak to anyone in particular - normally, he would tell a joke, offer musings of the day and then, quietly sip water.  He said he enjoyed the energy of the office.  We would purposefully leave copies of work product laying on the table with a red pen knowing he enjoyed reviewing the work.  In turn, he would occasionally leave work for us to review.  He especially enjoyed eating peanuts out of the shell while he worked - in those days we always had bags of peanuts around the office. 

I do not recall the precise genesis of the Title Gap discussion between us, however, we began a back and forth discussion that I recall lasting a couple of months.   

My position at the time - there is no provision to allocate a Title Gap to a junior grantee - was the same as it is today.  After a couple of months of trying to find a citation to the contrary it was determined by each of us no such citation existed.  The purloining of real property to a junior grant was little more than chicanery.   

Absent a citation, Paul still felt very strongly the property should not have a gap shown in the boundary resolution and subsequent mapping.  

I recall one particularly spirited discussion in which Paul was advocating the junior grant should take the excess and I replied "it simply does not say that in any book" and he shot back "but it should!".  

It was then he set about writing the article referenced.  He kept it from me until it was done and submitted for publication.  When he provided me with a copy of the final draft I expressed my abject disgust to Paul.  I explained that he essentially had blood on his hands because many folks do not research land surveying and/or legal concepts and they were likely to (incorrectly) rely on a color article.  His mindset was that if he wrote it the people would rely on it and eventually it would become an accepted methodology.   I scoffed at the idea then, I scoff at it today - a color article will not trump contract law.  Paul placed Chuck's name in the article to lend further credibility to the article.  Chuck did see the article and did offer his contributions.  I accused Paul of gamesmanship for using Chuck's name, he knew.  For those that may not know Chuck Karayan, he is an extremely well read, articulate, beautifully argumentative and all around great land surveying mind. 

I remain disgusted by the article.  That said, Paul's idea, his article, no matter how wrongheaded in my opinion, is a topic of discussion fifteen years later.  He is sure to be happy about that - on some level his plan may have worked.  There was never any hard feelings between us.  I very much enjoyed that particlar period of time and our time together. Neither of us knew at the time he would be gone sixteen months later.  His license still hangs on the office wall to this day.

To quote Paul Harvey "and now you know the rest of the story". 

DWoolley

TIB yes it sure looks like this topic is of interest to many!

Thank you to everyone for contributing and thank you to DWoolley for relating your story about Paul Cuomo. A lot of good points have been made by all.

A few thoughts on the eve of our nation's birthday.

TIB, one could take the view that the garage shed is evidence of possession, which would support choosing Solution C over the others, as you did. This would seem reasonable to me and I do not take issue with that choice. To me this is a two-part issue. One, a choice between A or C as a solution. Two, the correctness of B as a solution, which opens up the bigger issue of title gaps in general.

Title Gaps. If the entirety of the property was not conveyed, it stands to reason that title to any unconveyed portion would remain in the original grantor. It defies logic to assert on one hand that 'all the land was not conveyed', and 'there is a gap', and then turn around and say that the original grantor doesn't own the gap, even though they didn't convey it, and the adjacent owners can agree on the allocation of this 'surplus' land, the same surplus land that they don't have title to.

To make the argument that the solution is an agreement between owners is to prove the point that this is really an issue of location, not of ownership.

The following statements often heard prove this out: 'if there was evidence of possession then maybe I could see allocating the overage accordingly', or 'if there was a previous survey that distributed the overage and it had been relied on then I would honor it'. Or, most telling of all, 'if my client owned all the surrounding lots then it wouldn't be a problem'.

The "four corners". My understanding is as follows. Going outside the "four corners", and looking to extrinsic evidence, is warranted upon discovery of a latent ambiguity. That is an ambiguity that is discovered upon the introduction of outside facts, i.e. measurements. This 'gap' is in my opinion the definition of a latent ambiguity. An ambiguity that does not appear in the office, but appears in the field after the survey is performed. If this is not a latent ambiguity, what is? Regardless, in this case the four corners argument seems inapplicable. The deeds called to the subdivision map. Therefore, the subdivision map is part of the deeds. Therefore, the intent of the grantor, based upon their conveyance of three 50' lots out of a record 150', was to have been obviously to divest themselves of their entire holdings. All without going outside the four corners.

Most of the arguments made against the no-gap position can be turned on their head. Can anyone provide a California Citation that says to create a gap given the present facts?

There is an entire chapter in Clark entitled "Excess and Deficiency". What do we suppose it is there for? Why does the phrase "Title Gap" not appear in Clark, Mulford, etc? Why does Brown, in his coverage of this situation, only base his recommendations upon avoidance of liability, not case law? Could it be because there is no case law supporting the creating of a gap?

Is it possible that the grantor made a typo in one of the conveyances and intended to convey all of Lot A? Anything is possible

I know of a situation in which this happened in Sacramento. Grantor subdivided by deeds in or around 1948, selling off "all" of his property, but misdescribed one parcel by 10'. Occupation of long standing indicated the intent *not* to retain a 10' strip, but no one ever fixed the errant deed and the parcel was transferred several times over decades according to the original description. Sometime around the early 2000s (I think) the Assessor picked up on the gap and created a new assessment parcel, naming the original grantor as the owner. (I'm going from distant memory here, but I think that's correct.) After a time with no taxes paid the strip was sold to the state, which eventually got around to auctioning it off. The neighbors were notified, but my client (sort of; she was not a person of means, so I agreed to investigate pro bono) didn't have any reason to believe that the strip actually was part of her property. Her neighbor, however, saw an opportunity and bought it, then announced that he was going to move the fence to his new line, which happened to be within a foot or so of my client's house, and would have swallowed up her entire driveway. It was a mess, and when I eventually walked away from it it hadn't been resolved.

With regard to all the advice to work it out with the neighbors: I don't know about you guys, but with very rare exceptions by the time someone calls me to help them with one of these gap/overlap/occupation-versus-deed things the adjoiners have already lawyered up and aren't speaking to each other other than to hurl insults, so the genteel concept of everyone sitting around a table and arriving at a sensible solution has long since been tossed in the dumpster.

I do not consider garage evidence of possession, but would rather not have encroachment. I'll risk the liability (in this case). Mom wants to put a small fence up so she doesn't plant her roses on the wrong side. Mom don't know any difference in 50.9 and 50.00 nor does she even care, All results are OK with MOM. Mom just wanted to do the right thing and get "official" survey. I think Mom (and public at large) would be (something) that their little fence is such an issue. The public don't realize the we surveyors are dead serious about 3 tenths one way or the other. And that's OK. They just want stakes on their line without the drama. Mebbe we don't wanna advertise to the public different "professional" surveyors could survey their rose bush with a high likelihood of different results. Any group of people "that can't agree amongst themselves" will probably get more ridicule than respect.
I wanted opinions and insight and I got em. Thank you to all thought and ideas on this question. I have learned some new concepts about Title. After considerable thought, I have determined the correct solution shall be as follows: eenee meenee minney mo
Happy July 4 to all

TIB

Elias French wrote: There is an entire chapter in Clark entitled "Excess and Deficiency". What do we suppose it is there for? Why does the phrase "Title Gap" not appear in Clark, Mulford, etc? Why does Brown, in his coverage of this situation, only base his recommendations upon avoidance of liability, not case law? Could it be because there is no case law supporting the creating of a gap?

I made up the term Title Gap for convenience to this discussion. I believe it aids the discussion to tie gaps and the fixes to land title.

Case law on the occupation or possession of Title Gaps would be disguised in a lawsuit under a legal theory like adverse possession, prescriptive right, acquiescence or a contract/warranty/breach/representation etc.

The applicable statute laws are written to prevent litigation on these types of issues and certainly, discourage the required appeal to establish case law. The statute law covers this situation well. If there is a lawsuit, I can guarantee there is a wayward, gap closing in favor of a junior, surveyor that is tailgate adjudicating ownership without authority. Understand, the gap closing surveyor creates the conflict by establishing possession and occupation, arguably misrepresentation, outside of the land title and not catching the title up. Until the surveyor began the ex-judicial allocation of property rights there is no problem, no ambiguity, with the land title or the ability to locate and/or place the limits of title on the ground.

There are a couple of reasons the California exams for minimum competency almost always has a Title Gap problem. One reason, there is only one answer. A good test problem cannot have two valid answers. A second reason, more importantly, this is a principle that can raise havoc on the public if not understood or is misunderstood. Arguably, it is incompetency, certainly negligent, to close a Title Gap in favor of the junior grant by virtue of professional opinion without fixing title - notwithstanding occasional mitigating factors i.e. de minimus.

In my experience in boundary litigation the attorneys usually fret over the court incorrectly providing the equitable solution i.e. splitting the difference. Boundary litigation is technical, nuanced and appears to be boring for the jurist. Also, in my experience, the litigation is emotionally charged due to the personal nature of the parties - they usually live next to each other - being another factor contributing to an equitable solution. In reading appellate decisions it is common to see the lower court's equitable solution being overturned. This is my basis for accepting TIB's proration of the excess between the grants, equity. As I stated earlier, the 0.3 per lot is the outer reaches on a 50' lot. Not ideal, but passable as equitable. In contrast, place 0.9' in the junior grant and an issue is raised, as to liability, dead man walking.

Another reason there should be very little case law, largely due to uncontested quiet title actions, is the rightful underlying owner isn't going to litigate for his 0.9' that he doesn’t know he owns. In other words, there is no responding party i.e. plaintiff or defendant. These actions will be under a theory of relief naming persons “known or unknown”. However, the law does recognize the underlying owner’s rights may exist by virtue of the statute of repose required for quiet title actions.

I realized a better understanding of these particular principles from reading:
“The Legal Analyst: A Toolkit for Thinking about the Law” by Ward Farnsworth
https://www.amazon.com/Legal-Analyst-To ... 0226238350
I recommend reading the entire book, however, the discussion of application of the contract/deed law is in the first 125 or so pages i.e. ex ante/ex post legal theory.

Elias French wrote: Title Gaps. If the entirety of the property was not conveyed, it stands to reason that title to any unconveyed portion would remain in the original grantor. It defies logic to assert on one hand that 'all the land was not conveyed', and 'there is a gap', and then turn around and say that the original grantor doesn't own the gap, even though they didn't convey it, and the adjacent owners can agree on the allocation of this 'surplus' land, the same surplus land that they don't have title to.

To make the argument that the solution is an agreement between owners is to prove the point that this is really an issue of location, not of ownership.

The underlying grantor technically has the best claim to the property in the Title Gap. However, in most instances, the land surveyor is correct to believe the grantor will not return to claim the right. In turn, incurring the liability and coordinating with the owners, the land surveyor protects the client (public) by properly writing the grantor's rights out by executing the title documents for the safe possession and development of the excess property without subsequent claims (after another surveyors identifies the problem).

Likely scenario, ALTA land title survey would pickup the encroachment/occupation/setback violation in a Title Gap, the title company writes an exception to coverage....lender balks or requires additional coverage, damage.

Also, see above, see below.

Elias French wrote: The following statements often heard prove this out: 'if there was evidence of possession then maybe I could see allocating the overage accordingly', or 'if there was a previous survey that distributed the overage and it had been relied on then I would honor it'. Or, most telling of all, 'if my client owned all the surrounding lots then it wouldn't be a problem'.

Possession and ownership and land title are not always coincident. In the absence of adversity the land surveyor has the legal authority to assist the owners in fixing the problems. Professional opinion, coupled with math skills and some CAD, does not properly fix these types of issues.

Elias French wrote: The "four corners". My understanding is as follows. Going outside the "four corners", and looking to extrinsic evidence, is warranted upon discovery of a latent ambiguity. That is an ambiguity that is discovered upon the introduction of outside facts, i.e. measurements. This 'gap' is in my opinion the definition of a latent ambiguity. An ambiguity that does not appear in the office, but appears in the field after the survey is performed. If this is not a latent ambiguity, what is? Regardless, in this case the four corners argument seems inapplicable. The deeds called to the subdivision map. Therefore, the subdivision map is part of the deeds. Therefore, the intent of the grantor, based upon their conveyance of three 50' lots out of a record 150', was to have been obviously to divest themselves of their entire holdings. All without going outside the four corners.

Again, there is no ambiguity, latent, patent or otherwise. The grantor sold 50’, which he rightfully owns, the grantee received 50’ and it was memorialized, in accordance with the statute of frauds, in a written executed deed. Where is the ambiguity? What was intended is precisely what was written. In the instant case, there is no reason to go outside of the document. The four corners are a complete unambiguous transaction that does not conflict on the rights of another. The land surveyor is placing the public in a precarious position by informing a client to utilize land without title. The obligation rests in the land surveyor properly informing the client and the public, by virtue of filing a record of survey, the situation exist and proposed remedies. However, the land surveyor cannot compel a client to fix the problem. After informing the client, why would the land surveyor care either way?

Elias French, I welcome your well written posts, however, no matter how many different ways you pose the same question the answer, from my perspective, will not vary without additional facts or a new hypothetical. As to the matter of Title Gaps, fait accompli.

I will try to write about a slander of title experience sometime soon. In the event I do not get around to it, a land surveyor should know a little something about slander of title, but it isn't anything to lose sleep over. A mediocre land surveyor is more likely to be trampled by a unicorn than to lose a slander of title claim - that is not to say you won't be sued for it though.

DWoolley

Calling J.B. Stahl. Haven’t heard from him in awhile, this topic is right up his alley. Jp

What would happen if today's measurements were half a foot short? That raises the overlap scenario. At some point, parties understand the doctrine of not being able to sell what you no longer own.

Turning that on its head, given the precision of nominal 50' dimensions in a "long" block, is there really a gap? Wouldn't it be better to interpret three successive 50' grants as the equivalent of 'thirds' of the nominal 150' overall?

It may be that there are no appellate cases directly on point because of consistent evaluation of extrinsic evidence by land surveyors - hard as that may be to believe. Case law is made by upset parties, after all.

Jeff Steffan:

I couldn't have said it better myself!

Wait.... uh....

I purposely hadn't posted to this thread because this topic almost always ends with the same people posting the same opinions as the last time the topic came up, and without anyone having changed their mind after pages of discussion and argument. There are those of us who view boundary surveying as an investigative process to find where the original line actually existed, applying sound reasoning and professional judgment to find that line, knowing that a scenario of sequential conveyances where the parts add up to less than our present measurements indicate exists will likely require more investigation and analysis than other circumstances.

And there are those who come across a problem like this and choose to approach the problem like an engineering technician. They seek to reduce it to a math problem and apply a supposed inflexible rule of construction to the circumstances, thereby creating a problem that previously did not exist and presently need not exist if they stepped up their game to a more professional and less technical level.

Rules of construction are to be applied only where there are no facts or circumstances that indicate the true answer.

Basics to consider:

1. What information was available to the parties of the original conveyances regarding the size and geometry of the parent and senior parcels?

2. Did either the senior or junior conveyances contain the qualifier that the dimensions of the respective parcel were to be defined by the measurements of some surveyor years or decades in the future, using technology and methods not available when the conveyances were written?

3. Is there any indication in the title record that the grantor (owner of the parent parcel) intended to retain a strip of whatever width since the junior parcel was first conveyed?

4. Is there any indication on the ground that the grantor (owner of the parent parcel) intended to retain a strip of whatever width since the junior parcel was first conveyed?


If the answer to the first question is that there was no information available to the grantor that the parent parcel was anything other than the size indicated by the record of the original survey when either the senior or especially when the junior parcel was created, then it's highly unlikely that any actual gap exists.

I've never seen a qualifying statement as in question 2, and I doubt anyone else has, I included it to point out the silliness of determining a gap exists on nothing more than your recent measurements. They are not a factor in determining if there is an actual gap unless the show a gap of some standard width that might be usable for some purpose and that recent measurement evidence is coupled with some indication of intended or actual use of the supposed gap. If the parcels had been monumented at the time of the conveyances, most of you, whether you are arguing that a gap exists in the situation without any original monumentation, would agree that it is the original measurements that actually define the extent of the parcel and that your measurements are merely informational as to how those measurements compare to modern, presumably more precise and accurate measurements (report record and measured on your RS). Likewise, without any original monumentation, your recent measurements are merely informational as a comparison to any previous record measurements. Your recent measurements have no legal standing to define the locations of previously established and existing boundaries. The lack of monumentation does not convey any more authority to you or your measurements as to the location of the boundary defined by the parties to the original conveyances.

The answer to question 3 is probably the most important. Without some indication in the Title Record that some portion was retained or intended to be retained, there is no legal basis to the conclusion that some extra and previously undiscovered parcel exists between the senior and junior parts. Saying that it's not another parcel but merely a gap in title is smoke and mirrors. If you are stating that there is a piece of land that no one was aware, is not part of either of the parcels previously thought to be adjoining, are defining that land as to size and location by dimensions, you are stating that there is an extra parcel, no way around that.

If the answer to question 4 is that there is some indication on the ground of an intent to retain a gap by actual use, then you need to revisit question 3. Maybe you missed something in the Title Record that provides for written title to a retained strip. If not, you need to further investigate whose use is occurring within the strip. Does it best support a claim for one adjoiner or the other, in which case it's far more likely to be evidence of establishment rather than a prescriptive right or title claim. Or if it appears to be use by the original grantor, and if there is no title record of an intent to retain, may just as likely be a matter to be resolved based on prescriptive use.

If you exhaust all avenues of investigation and there is no indications of an intent to retain a strip between the two parts and no indication on the ground where the precise location of the common boundary was actually or intended to be established, then the surveyor is far better, IMO applying the rule of construction that the senior gets what is specifically called for and the junior gets the remainder with any excess or deficiency, or a prorated solution, depending upon the respective descriptions than to create a new parcel.

Either way, I'd strongly advise corrective deeds by whichever means is most expedient in the particular jurisdiction or even by BLA (the existence of an apparent gap provides the requisite uncertainty) just in case the next surveyor on the scene views his or her role as being like that of an engineering tech used to dealing with just numbers and rigid rules, and would proceed to invent a parcel that previously never existed.


Dang it Jeff! "Just when I thought I was out, they pull me back in!" (borrowing from Michael Corlione, GF III)

Going away now and will again try to refrain from adding any further common sense to this often discussed topic.

Citations for those having trouble letting go of engineering inspired ideas and embracing common sense:

Brannan v. Mesick, 10 Cal. 95 (1858)

“"When it is necessary to give an opinion upon the doubtful words of the deed, the first thing we ought to inquire into is, what was the intention of the parties? If the intention of the parties be as doubtful as the words, it will be of no assistance at all; but if the intent of the parties be plain and clear, we ought, if possible, to put such a construction on the doubtful words of a deed as will best answer the intent of the parties, and reject that construction which manifestly tends to overturn and destroy it." (Parkhurst v. Smith, Wiles, 322.)

To arrive at this intention, the situation of the parties, and the subject-matter at the time of contracting, should be considered: the whole deed should be taken together, and, if possible, effect should be given to all of its parts. "It is a true and important rule of construction, that the sense and meaning of the parties to any particular instrument should be collected ex antecedentibus et consequentibus; that is to say, every part of it should be brought into action, in order to collect from the whole, one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire instrument, and not merely upon disjointed parts of it; the whole context must be considered in endeavoring to collect the intention of the parties, although the immediate object of inquiry be the meaning of an isolated clause. In short, the law will judge of a deed or other instrument, consisting of diverse parts or clauses, by looking at the whole; and will give to each part its proper office, so as to ascertain and carry out the intention of the parties." (Broom's Leg. Max. 442.)

The reason of this rule is, that the "same parties make all the contract, and may be supposed to have the same purpose and object in view in all of it; and if this purpose is more clear and certain in some parts than in others, those which are obscure may be illustrated by the light of others." (2 Pars. 14.) If several instruments are made at the same time, by the same parties, and in relation to the same subject, the intention of the parties is to be gathered from all the instruments, taken together, and the recitals in each may be explained or corrected by reference to any other. ( Id. 15.) Oral evidence is sometimes admissible to explain, but not to contradict or vary the terms of a written contract; thus, if the words of a contract be ambiguous, its meaning may be gathered from contemporaneous facts which intrinsic testimony establishes. If, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract in this sense, or with this interpretation, will be enforced as the contract which the parties had made. The distinctions between patent and latent ambiguities are now regarded as intended to enable the Court to distinguish between cases curable and those of incurable uncertainty; to carry the aid of evidence as far as it can go, without making for the parties what they did not make for themselves. (2 Pars. 75.)”


Walsh v. Hill, 38 Cal. 481 (1869)

“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 is frequently shadowed forth, but seldom, if ever, expressly stated in the books—is to place ourselves as nearly 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.”


Aller v. Berkeley Hall S. Foundation, 40 Cal. App. 2d 31 (1940)

“The intention of the parties to the deed should control the construction of the instrument. The object in construing a deed is to ascertain the intention of the parties, and especially that of the grantor, from the words which have been employed in connection with the subject-matter, and from the surrounding circumstances. (Burnett v. Piercy, 149 Cal. 178 [86 P. 603]; 9 Cal.Jur. 324, sec. 188; 18 C.J. 252, sec. 198; 3 Thompson on Real Property, p. 70, sec. 1980.)”

More Citations

Hay v. Allen, 112 Cal. App. 2d 676 (1952)

“[5] It is the statute rule in the state that the primary object of interpretation is to give effect to the mutual intention of the parties as it existed at the time of the agreement. (Civ. Code, 1636.) [6] It is also the rule that "a contract shall be interpreted most strongly against the party who caused the uncertainty to exist." (Civ. Code, 1654.) [7] It is the further rule that it is the duty of the court to assume the positions of the parties and to consider the circumstances surrounding the execution of the conveyance and therefrom, if possible, gain the true intent of the parties. (Code Civ. Proc., 1860; Marlin v. Robinson, 123 Cal.App. 373 [11 P.2d 70].) [8] And in so determining the intent of the parties a court may look to the acts of the parties thereunder and to the practical construction placed upon it by them. (Jones v. Wilterding, 100 Cal.App.2d 210 [223 P.2d 91].)”


Victory Oil Co. v. Hancock Oil Co., 125 Cal. App. 2d 222 (1954)

“For, as nearly as possible, we must place ourselves in the position of the parties at the time of the execution of the instrument involved.”


Biescar v. Czechoslovak-Patronat, 145 Cal. App. 2d 133 (1956)

“However, the rule is well settled that writings contemporaneously executed to express the terms of a particular grant of real property, are held to constitute but a single instrument. (Downing v. Rademacher, 133 Cal. 220, 224 [65 P. 385, 85 Am.St.Rep. 160]; Patterson v. Donner, 48 Cal. 369, 377; Sledge v. Stolz, 41 Cal.App. 209, 220 [182 P. 340].) In Downing v. Rademacher, supra, the court observed: "The deed and the agreement constitute one instrument, and must be read as though each referred to the other and expressly incorporated its terms." (Italics added.) In the Sledge case, supra, the court states: "We must look to the agreement to ascertain the consideration for the execution of the deed, for it was executed and delivered pursuant to the agreement. The two documents are inseparable." (Italics added.) [1b] The trial court was entitled to treat the instruments here involved in accordance with this rule.

“The intention of the parties to a deed is to be derived by a consideration of the instrument as a whole rather than of detached clauses, giving due regard to every provision, clause and word, whether of grant, description, qualification or explanation and viewing it in the light of the circumstances surrounding its execution. (Paddock v. Vasquez, 122 Cal.App.2d 396, 400 [265 P.2d 121]; Schroeder v. Wilson, 89 Cal.App.2d 63, 66 [200 P.2d 173]; 15 Cal.Jur.2d, 128, pp. 528-529.) Every part of the instrument is to be given effect if reasonably practicable and consistent with the evident purpose of the grant, each clause helping to interpret the others. (Civ. Code, 1641; Brannan v. Mesick, 10 Cal. 95, 106-107; Barnett v. Barnett, 104 Cal. 298, 300 [37 P. 1049].)”

Yet more citations

Schofield v. Bany, 175 Cal. App. 2d 534 (1959)

“Intent of the parties may be ascertained from the language of the deed and from relevant parol evidence, including that which described the surrounding facts and circumstances existing at the time of the conveyance in question.”


Dandini v. Johnson, 193 Cal. App. 2d 815 (1961)

“"The modern tendency, almost universally accepted, is to abandon the strict common-law rule of construction [of deeds]. The cardinal requirement in the construction of deeds now, as in the construction of other instruments, is that the intention of the parties as gathered from the whole instrument must govern." (Basin Oil Co. v. City of Inglewood, 125 Cal.App.2d 661, 663 [271 P.2d 73]. See also Paddock v. Vasquez, 122 Cal.App.2d 396, 399-400 [265 P.2d 121]; Weber v. Graner, 137 Cal.App.2d 771, 774-775 [291 P.2d 173]; Biescar v. Czechoslovak-Patronat, 145 Cal.App.2d 133, 142-143 [302 P.2d 104]; Kraemer v. Kraemer, 167 Cal.App.2d 291, 300-301 [334 P.2d 675].) [3] In the Kraemer case the court made these significant observations: "Where the language of a deed is uncertain, i.e., 'fairly susceptible of either one of two constructions contended for without doing violence to its usual and ordinary import' (Beneficial etc. Ins. Co. v. Kurt Hitke & Co., 46 Cal.2d 517, 525 [297 P.2d 428]), circumstances surrounding its execution and the subsequent conduct of the parties with respect thereto may be considered in order to determine their intention in consonance with the language used; to determine 'what they meant by what they said.' (Barnhart Aircraft, Inc. v. Preston, 212 Cal. 19, 23 [297 P. 20]; Civil Code, section 1647; Universal Sales Corp. v. California etc. Mfg. Co., 20 Cal.2d 751, 761 [128 P.2d 665]; Van Slyke v. Arrowhead etc. Power Co., supra, 155 Cal. 675, 681 [102 P. 816]; Poles v. Glass, 136 Cal.App.2d 508, 510 [288 P.2d 986]; Paddock v. Vasquez, 122 Cal.App.2d 396 [265 P.2d 121].)" (P. 304 of 167 Cal.App.2d.)”


Buffum v. Texaco, Inc., 241 Cal. App. 2d 732 (1966)

“The construction of the deed from Tompkins to the Humboldt Milling Company presents a pure matter of law. (Sepulveda v. Sepulveda, 77 Cal. 605, 608 [20 P. 145].) [1] In interpreting the instrument we must seek to ascertain the intention of the parties at the time the deed was executed, and if possible give effect to their mutual intentions. (Civ. Code, 1636; Marlin v. Robinson, 123 Cal.App. 373, 375 [11 P.2d 70]; Hay v. Allen, 112 Cal.App.2d 676, 681 [247 P.2d 94].) [2] The language of the instrument is to be first considered, and the intention of the parties gathered therefrom, before resorting to extrinsic evidence (Joerger v. Pacific Gas & Electric Co., 207 Cal. 8, 32 [276 P. 1017]) but the instrument may be explained by reference to the circumstances under which it was made, and the matter to which it relates. (Civ. Code, 1647.)”


Mountain Brow Lodge, IOOF v. Toscano, 257 Cal. App. 2d 22 (1967)

“It is the rule that the object in construing a deed is to ascertain the intention of the grantor from words which have been employed and from surrounding circumstances.”


Pugh v. See's Candies, Inc., 116 Cal. App. 3d 311 (1981)

“"It is fundamental that when construing contracts involving substantial employment rights, courts should avoid mechanical and arbitrary tests if at all possible; employment contracts, like other agreements, should be construed to give effect to the intention of the parties as demonstrated by the language used, the purpose to be accomplished and the circumstances under which the agreement was made.”

Thanks for all of this, Evan. So what's your final call on this hypothetical, my friend? We've been provided short form legals, a thorough investigation has been performed and we're finding nothing on the ground to give clue to intent. Is it proration or excess to junior? And do we insist on deed reformation to provide long term stability and protection to all parties involved, or is this simply a recommendation? - my guess is that most would listen, but pass if it were merely a recommendation as it is a process to go through and they've got a surveyor willing to go on record to stand behind their decision.

And one more that I recently found that I really like.

If I were in a position to write a judicial opinion on this subject, I think it would sound a lot like this one.

In this one, Supreme Court Justice Peters seems to be frustrated with the lower court's application of the rules when it comes to the interpretation of documents and the consideration of extrinsic evidence.

The overall messages, from my reading, seem to be:

1. You must be open to go beyond your own understanding of what you think is unambiguous.

2. All evidence which may be relevant must be considered in order to determine if it actually is relevant.

3. Limiting what you will or won't consider according to your own initial understanding is small minded, "primitive", and may very well result in imposing a meaning which was never intended.

This is as close to an intellectual spanking of a judge of a lower court (and others who are supposed to learn from the direction provided by published opinions) as I've seen in a ruling. Ouch!

I have a couple of comments in here which are bracketed and in blue. All else is right out of the opinion.


Pacific Gas & E. Co. v. GW Thomas Drayage etc. Co., 69 Cal. 2d 33 (1968)

“Having determined that the contract had a plain meaning, the court refused [for our purposes, substitute “surveyor” for “court” throughout this entire quote, EAP] to admit any extrinsic evidence that would contradict its interpretation. [Sounds like some of the surveyors posting in this thread. EAP]

When the court interprets a contract on this basis, it determines the meaning of the instrument in accordance with the "... extrinsic evidence of the judge's own linguistic education and experience." [Substitute “surveyor’s” for “judge’s” and note that his interpretation limited by his own education & experience were characterized as “extrinsic evidence, EAP] (3 Corbin on Contracts (1960 ed.) [1964 Supp. 579, p. 225, fn. 56].) The exclusion of testimony that might contradict the linguistic background of the judge reflects a judicial belief in the possibility of perfect verbal expression. (9 Wigmore on Evidence (3d ed. 1940) 2461, p. 187.) This belief is a remnant of a primitive faith in the inherent potency [fn. 2] and inherent meaning of words. [fn. 3]

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. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 520-521 [67 Cal.Rptr. 761, 439 P.2d 889]; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839]; Hulse v. Juillard Fancy Foods Co. (1964) 61 Cal.2d 571, 573 [39 Cal.Rptr. 529, 394 P.2d 65]; Nofziger v. Holman (1964) 61 Cal.2d 526, 528 [39 Cal.Rptr. 384, 393 P.2d 696]; Coast Bank v. Minderhout (1964) 61 Cal.2d 311, 315 [38 Cal.Rptr. 505, 392 P.2d 265]; Imbach v. Schultz (1962) 58 Cal.2d 858, 860 [27 Cal.Rptr. 160, 377 P.2d 272]; Reid v. Overland Machined Products (1961) 55 Cal.2d 203, 210 [10 Cal.Rptr. 819, 359 P.2d 251].)

A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court 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.

Some courts have expressed the opinion that contractual obligations are created by the mere use of certain words, whether or not there was any intention to incur such obligations. [fn. 4] Under this view, contractual obligations flow, not from the intention of the parties but from the fact that they used certain magic words. [or lack of certain “magic” or precise language, EAP] Evidence of the parties' intention therefore becomes irrelevant.

[2] In this state, however, the intention of the parties as expressed in the contract is the source of contractual rights and duties. [fn. 5] A court must ascertain and give effect to this intention by determining what the parties meant by the words they used. Accordingly, the exclusion of relevant, extrinsic, evidence to explain the meaning of a written instrument could be justified only if it were feasible to determine the meaning the parties gave to the words from the instrument alone.

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. [3] "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 [5 Cal.Rptr. 553, 353 P.2d 33].) 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.) [4] 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 omitted.]" (Universal Sales Corp. v. California Press Mfg. Co., supra, 20 Cal.2d 751, 776 (concurring opinion); see also, e.g., Garden State Plaza Corp. v. S. S. Kresge Co. (1963) 78 N.J. Super. 485 [189 A.2d 448, 454]; Hurst v. W. J. Lake & Co. (1932) 141 Ore. 306, 310 [16 P.2d 627, 629, 89 A.L.R. 1222]; 3 Corbin on Contracts (1960 ed.) 579, pp. 412-431; Ogden and Richards, The Meaning of Meaning, op.cit supra 15; Ullmann, The Principles of Semantics, supra, 61; McBaine, The Rule Against Disturbing Plain Meaning of Writings (1943) 31 Cal.L.Rev. 145.)

[5] Although extrinsic evidence is not admissible to add to, detract from, or vary the terms of a written contract, these terms must first be determined before it can be decided whether or not extrinsic evidence is being offered for a prohibited purpose. The fact that the terms of an instrument appear clear to a judge does not preclude the possibility that the parties chose the language of the instrument to express different terms. That possibility is not limited to contracts whose terms have acquired a particular meaning by trade usage, [fn. 6] but exists whenever the parties' understanding of the words used may have differed from the judge's understanding.

Accordingly, rational interpretation requires at least a preliminary consideration of all credible evidence offered to prove the intention of the parties. [fn. 7] (Civ. Code, 1647; Code Civ. Proc., 1860; see also 9 Wigmore on Evidence, op. cit. supra, 2470, fn. 11, p. 227.) Such evidence includes testimony as to the "circumstances surrounding the making of the agreement ... including the object, nature and subject matter of the writing ..." so that the court can "place itself in the same situation in which the parties found themselves at the time of contracting." (Universal Sales Corp. v. California Press Mfg. Co., supra, 20 Cal.2d 751, 761; Lemm v. Stillwater Land & Cattle Co., supra, 217 Cal. 474, 480-481.) [6] If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, "is fairly susceptible of either one of the two interpretations contended for ..." (Balfour v. Fresno C. & I. Co. (1895) 109 Cal. 221, 225 [41 P. 876]; see also, Hulse v. Juillard Fancy Foods Co., supra, 61 Cal.2d 571, 573; Nofziger v. Holman, supra, 61 Cal.2d 526, 528; Reid v. Overland Machined Products, supra, 55 Cal.2d 203, 210; Barham v. Barham (1949) 33 Cal.2d 416, 422-423 [202 P.2d 289]; Kenney v. Los Feliz Investment Co. (1932) 121 Cal.App. 378, 386-387 [9 P.2d 225]), extrinsic evidence relevant to prove either of such meanings is admissible. [fn. 8]”

---------------- End citation -----------------------

This is a very clear and complete explanation from the CA Supreme Court. Aside from a dissent by McComb on a completely different point, this was a unanimous decision.

We are supposed to be the experts that the courts turn to for boundary locations. If we are not considering the evidence the courts have so clearly and repeatedly told us and the lower courts to consider, then our opinions had darn well better reflect a consideration of that evidence. The Supreme Court did not go so far as to tell us that we need to hang our hats on such evidence. "Consider" is not synonymous with "accept". But if a solution appears as a result of that consideration that makes more sense than the result which occurs having ignored the evidence, then we should accept it as explaining a term or terms which is/are susceptible to an alternate interpretation and our conclusions should reflect the more sensible and likely boundary result.

In a case where we measure an excess in a parent parcel as compared to the record as it existed when the cut-out parcels were created, we are looking for the answers to 1) "Was there an intent on the part of the grantor to retain a strip equivalent to the excess our measurements indicate?" and 2) "What is the physical difference between the record dimensions as measured with the device used by the person who established the boundary (or created the dimensions relied upon by the parties to the original conveyances) and the device I used to make measurements with?"

If you can't find the evidence to answer the first in the positive (and your measurements are entirely irrelevant with regard to that answer), then your job is to find the answer to the 2nd question and take it into account when reporting where the common boundary is.


In response to the citations I provided (and if I take the time to look, I'm sure I can find several more), it's quite likely that someone with the contrary view will post reference to some cases that state that extrinsic evidence can only be considered if the terms of the description are ambiguous. I can practically guarantee it. When those are posted, the person who posts them will be showing that they completely missed the lessons that Justice Peters articulated in PGE v Drayage.

In many of those cases, the terms that one of the parties wanted to apply extrinsic evidence to were calls to bounds that were clear as a matter of law, or two quality of title issues rather than boundary location terms. In some cases though, the question will have been focused on a boundary location term but the judge or justice(s) writing the opinions will clearly have neglected to follow the direction of the Supreme Court which was so clearly articulated in PGE v Drayage, but which also existed well prior to 1968. Remember that it is very expensive first to litigate a matter at trial, but equally or more so to take it to the next step in the appeal process. Many matters which had a good chance of being overruled by the next higher court never got there because one side or the other ran out of resources to take it to the next step.

When reading cases, always assume first that different cases will be reconcilable on the law and if at first they appear contradictory, look for differences in the fact set which justify seemingly different outcomes. If after doing that, you can't reconcile them, then go with the opinion of the higher court for the jurisdiction.

It is so well settled that courts consider measurements to be the least reliable evidence (acknowledging that area and coordinates are a little lower, but those are derived from measurements, so their an extension of the same type of evidence) that we should not need to discuss that further for purposes of this discussion.

It should also be basic in our understanding that we cannot redefine existing boundary locations based on our new measurements to defeat the locations established according to the original measurements. Yes, the older measurements are quite likely less precise and less accurate, but it is not the reported values which ultimately matter. It's the locations of the established lines and points that the measurements purport to show the spatial relationship of. If the cutout lots were never measured but the parent parcel is monumented, then that's what we have to compare our measurements to when determining what 100' or 50' meant to the parties of the original conveyances.

As to the specter of "slander of title", I'd be far more nervous about declaring the existence of a parcel that no one, from the parties to the original conveyances of the cutout parcels, the heirs of the grantor, present owners of the cutouts, the county assessor, or anyone else who ever had any title or passing interest in the land ever recognized than I would practically any other method to show the location of the one common boundary according to the best info I could find by a diligent search. Anyone who thinks that declaring the existence of a heretofore hidden parcel without having found reliable title info to support that conclusion and relying only on their own recent measurements to justify is living in a different reality than I or the justices of the CA Supreme Court.

Courts rely on us as the experts. In most cases, the judges we testify in front of have no understanding of what we do or how we are supposed to do it. If the experts testifying in a case like this are, on one side, someone who approaches this type of problem like an engineering tech relying solely on measurements, math, and the supposed existence of some invoilable rule (engineers have invoilable rules defined by physics and other hard sciences. When it comes to boundary location, we have no such rules and shouldn't be looking for them.), but that "expert" is articulate in explaining his or her misunderstanding of the law and the tile & boundary principles at work, and on the other side, the "expert" is mostly ignorant of the principles and has no illusions that they do have a good understanding of them, and lacks the smoothness and any air of authority the engineering tech has, guess who will be seen as knowing their stuff? The judge will most likely make a bad ruling on the bad advice of an "expert" who is firmly self-assured in his or her misunderstanding of the proper way to locate this boundary, and a title mess is then officially created.

Unfortunately, regardless that the highest courts in the land have told us over and over and over again that the task is to find the existing boundary and not to place it where "it should have been", and that the only reliable way to do that is to determine the intent as indicated by the best available evidence, and that we should consider all potentially relevant evidence to determine if it is, indeed relevant or not before accepting or rejecting it, a great many of us never become aware of this guidance or choose to ignore it in favor of the expediency of applying arbitrary "rules".

In almost all cases, these "rules" are guidance to follow in the case where there is truly no evidence to guide us toward the true original boundary location. Applying them before we look for all of the evidence and consider all of the evidence we are able to find after a diligent effort is arbitrary and just plain wrong.

Olin,

I have to admit that I posted all of this today without recently reading your first post, so it's all reflective of my general opinion on the subject of supposed gaps and my interpretation of the law with regard to intent and the use of extrinsic evidence to find the locations of existing boundaries. I'll have to go back for the particulars of what you've got going on. As I recall though, a week or two ago, when there was still less than 1 page of posts, I was going to post that the solution you were favoring seemed reasonable. But like I said, I better go back and read the particulars before I make that statement.

My friend Curt Brown had some thoughts about this topic. For your consideration:

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THE SURVEYOR AND THE LAW

December 1958

Dear Mr. Brown:

Will you comment on how to apply proration and on when proration is applicable and when it is not?

(Signed) E. L. M.

The definition of proration is simple; the difficulty is in knowing when to apply it. Below are a number of principles with brief explanations. It must be understood that any principle is merely a rule of construction or presumption that is subordinate to senior rights and subordinate to the intentions of the parties. Proportionate measurement is a means of distributing any surplus or deficiency that exists between related, found monuments or related, established points.

Definition of proportionate measurement

“A proportionate measurement is one that gives concordant relation between all parts of the line, i.e., the new values given to the several parts, as determined by the remeasurement, shall bear the same relation to the record lengths as the new measurement of the whole line bears to that record.” (Section 364, Manual of Surveying Instructions, Bureau of Land Management, 1947.)
In the above definition, “of the line” infers a line run by the same surveyor or a line resulting from the same map or plat or from simultaneous conveyances. When locating a lot within a subdivision and applying this principle of proration, proration does not extend beyond the boundaries of that subdivision.

Proration does not apply where senior rights exist.

If a person has conveyed part of his property to another, he cannot at a later date convey it to someone else. The first deed gets all that is coming to it and the seller owns all of the remainder. If a person owns a remainder, no excess or deficiency exists. A remainder does not have a definite size; it is more or less in character. A person may have more or less land than he expects, but, so long as he has a remainder, the unexpected quantity of land, be it large or small, is all his. It is not divided among several owners.
The key to understanding when proration is applicable and when it is not are the words “time” and “creation.” If parcels are created in sequence with a lapse of time between them, senior rights exist and proration does not apply. For example, if Brown sells a parcel to Jones and at a later time sells another to Smith, Jones has senior rights over either Smith or Brown’s remainder. Smith is senior to Brown (the seller must deliver all that he has sold, hence the seller is junior to the buyer), but junior to Jones. Brown is junior to both Smith and Jones. Where such junior and senior deeds exist, any measurement that differs from the record measurement is applied to the particular property to which it is applicable, and this is usually determined by senior rights. It is not divided among all the properties.
But what about subdivision maps where lots are sold in sequence and proration is applied? The word “created” is the key to the difference. Metes and bounds descriptions are usually created with a lapse of time between each creation and hence are created in sequence. Lots in a subdivision map are all created at the same moment of time (when the map is filed or accepted) even though the lots are sold in sequence. Lots created simultaneously cannot have one lot with greater rights than another, hence senior rights do not exist because no lapse of time exists between creation of parcels.
Sometimes measurement index is mistaken for proration. If a survey is called for in a particular metes and bounds description and it is discovered that the original surveyor used a chain which was consistently long or short, in order to follow the footsteps of the original surveyor a consistently long or short chain is used. This is not an adjustment between several ownerships or lots, but is an adjustment that applies to one ownership. Strictly speaking this is not proration but is an application of the index-error principle.

Proration is applied whenever the intent of the original owner indicates that he created several parcels simultaneously with equal rights and there is no one parcel designated to receive a remainder.

Simultaneous descriptions are as follows:

(1) Wills and gifts wherein none of the heirs or benefactors are designated to receive a remainder.

(2) Lots in subdivisions wherein a map is filed with a governing body and no lots are sold prior to filing the map or prior to staking.

(3) Lots in any subdivision wherein it is impossible to distinguish an intent to give senior rights to buyers in sequence.

(4) Court proceedings in partition wherein each litigant is given a proportionate share of the whole, and no one is designated to receive the remainder.

(5) Metes and bounds descriptions that are created simultaneously, and no one is designated to receive a remainder.

To illustrate when proration is applied, the following hypothetical situations are used.
Mr. Smith decides that he is going to sell several parcels of land in accordance with the wishes of the buyers. The first buyer takes the east 60 feet; the second buyer takes the west 50 feet; the third buyer takes the 80 feet immediately west of the first buyer, and the fourth buyer takes the remainder. With the fourth sale Mr. Smith files a map (under old laws any map was filed by presentation of filing fees, and in some areas this is still done) showing all four of the parcels with lot numbers. In this case, there has been a creation of parcels in sequence; hence, proration does not apply and senior rights exist in spite of the fact that there is a filed map.
Again, Mr. Smith decides to sell off parcels of land, has a plat prepared, proceeds to sell parcels in accordance with the plat, and gives each buyer a copy of the plat. In most states this procedure is now illegal (plats must be filed with a governing body), but in the past this was commonly done. In this instance proration applies, since each lot was created prior to the sale of any one lot and since the map was a consideration of each sale.
Again, Mr. Smith decides to sell off parcels of land and has a plat prepared. He then conveys each parcel by a metes and bounds description without any reference to the plat, although the parcels agree in size and shape with the plat. Proration does not apply since the buyers have no knowledge of the map nor is the map mentioned as a consideration of the deed. Each parcel has a described perimeter that cannot be construed to be a proportional part of a whole. Even if the seller intended each lot to be a proportional part of a map, the buyer could not be held to the secret intentions of the seller; the intentions must be in writing.
Again Mr. Smith decides that he will sell several parcels, has a map prepared, files the map with a governing agency, and sells lots by lot and block numbers. Proration applies since a person buying one lot is buying a proportionate part of a block and there is no way of distinguishing a senior intent or a remainder.
Mr. Smith decides to give each of his three friends one-third of his land. He has metes and bounds descriptions prepared (perimeter descriptions) that gives each an equal amount. He presents all three deeds at substantially the same time. If a deficiency or surplus is discovered, each is entitled to a share, since the intent was to create three parcels of equal size. Proration applies.
But there are certain rules about proration that limit its application.

Proration is not applied beyond an undisturbed original monument that is considered as part of the deeds.

Where there is a survey called for and the original surveyor marks the position of lots, the lots are unchangeable except by resubdivision or proof of fraud. Proration is not used to alter the original location of the original lots but is used to prorate discrepancies found to exist between original monuments.

Proration is not used to distribute an error that can be proved to exist in one place.

Proration is for the purpose of disposing of discrepancies, the location of which cannot be fixed. It presupposes the idea that each owner has an equal right to any surplus or deficiency. Where an error is proved to exist in one place, the presumption that each owner has equal rights is overcome and the error is placed where it occurs.

Proration, as a means of distributing discrepancies, is a rule of last resort.

Only when the idea of equal rights to land is conveyed is proration applied. If it is possible to distinguish a person with prior rights, proration is not used. Proration may be used to re-establish a lost corner, but only after every means has been exhausted to determine the actual original location of the corner. The courts have gone so far as to state that in many instances old, existing fences and lines of occupancy are better evidence of where the original lines were located than is proration or measurements from distant points. If fences show where the original lines were located, proration cannot be used to alter the original lines. Thus, only after other considerations have been eliminated is proration applied. It is a rule of last resort used to distribute unaccountable discrepancies.

Proration cannot alter rights obtained by unwritten means.

If land is gained by occupancy, agreement, or other unwritten means, proration cannot alter these rights. The old lines are extinguished and new title lines exist.

Proration is applied to proportional conveyances under State laws, but not always under Federal sectionalized land law.

A proportional conveyance, such as the North half of Lot 12, receives a proportionate part of the whole area by common law. For sectionalized land Federal Statute law defines proportional conveyances (North 1/2 of the NW 1/4 of Section 7) in such a manner that a proportional part of the area is not conveyed.
These are my ideas on the subject, as based upon my reading. Perhaps some of you disagree or would like to add to the above by sending your comments to the editor.

- Curtis M. Brown

EDITOR’S NOTE. - Further explanation is given in Mr. Brown’s recent book, “Boundary Control and Legal Principles.” (Reviewed, SURVEYING AND MAPPING, October-December 1957, Vol. XVII, No. 4, pages 435 - 436.)

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And then again:
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THE SURVEYOR AND THE LAW

More on Proportionate Measurement

March 1959

One of the longest trials involving land boundaries has finally appeared in print (Nov. 28, 1958, Advanced California Appellate Reports, Bancroft Whitney Company, page 54). After about 340 days, and about 38,000 typed pages later, a verdict was reached. William Wattles (a former vice president of ACSM) was cross-examined for some 46 days. An official copy of the transcript cost some $6,000.

Of course, the land was valuable. Oil was discovered. Chandler (Chandler et al v. Hibberd et al) was the owner of the south half of Section 25 (leased to the Superior Oil Company). Section 36, lying immediately south of Section 25, was owned by Hibberd and leased to the Richfield Oil Company. The dispute arose over the location of the common line between Sections 25 and 36, Township 10 North, Range 27 West, San Bernardino Meridian.
To avoid using such words as plaintiff, defendant, appellants, respondents, etc., in this summary, the word “Superior” will be used to include all owners and interested parties in Section 25 and “Richfield” will be used to include all parties interested in Section 36.
Superior claimed that the line between Sections 25 and 36 had to be located by proportionate measurements. Richfield claimed that the line was fixed by an old fence (acquiescence, agreement or adverse possession). The original section corners were either lost or obliterated. It was stipulated that the court was to determine the true location of the common line between Sections 25 and 36 whether the fence constituted the original ownership line or not.

The lower court declared that the fence did constitute the true ownership line and declared that the true original section line was north (at a specified place) of the fence line. The court rejected proportionate measurement in this case. Upon appeal to a higher court (Appellate), the higher court declared that the fence line did not constitute an agreed property line and that the true section line, as determined by the lower court, must be used. Since this section line was north of the fence, Richfield obtained more land than they contended to be theirs.
Two items are of interest to surveyors. (1) Why was proportionate measurement rejected? (2) What was it that determined the section line when the original corners were absent from view? As of secondary interest, why did the lower court accept a fence and the upper court reject it?
The fence erected between the two properties was the result of a survey, was for the purpose of a cattle enclosure, and was erected by a leasee. The owner of Section 25, at the time of the erection of the fence, wrote a letter (1938) to the owner of Section 36 to the effect that he would not object to the erection of the fence “as long as he did not make a boundary line between the two properties.” For this reason, the upper court reasoned that the fence was not an agreed boundary nor was it acquiesced in. Since the upper court did not accept the fence, the original location of the section line between Sections 25 and 36 became the division line.

Proportional Measurement. Superior contended that the corners common to Sections 25 and 36 were lost and that proportionate measurement was the only means that could be used to restore them. Their contention was that the court must accept measurements between a corner a mile north of the disputed line and a corner a mile south of the disputed line and then reset the “lost” corner by proportionate methods. When doing this a 660-foot shortage existed; hence, Sections 36 and 25 would each be 330 feet short. Of course, this contention is perfectly valid providing (1) the missing corner is in fact lost and (2) providing the corners from which the measurements are made are in fact the original corners.
An examination of the evidence presented indicates that the corners one mile north of the disputed corners were questionable. The surveyor for Superior accepted an old fence line as being the north line of Section 25. The authenticity of the original corners along this line was never proven. To further complicate things, the corners located in more than a mile to the north of the disputed line fell within the limits of Cuyama Rancho and were never set. “The court found that they (corners along the north line of Section 25) were not actually relocations of corners or corner accessories of the original (Glover) survey and that they are not located in the position of Glover’s corners or accessories.” There being no north line established for Section 25, the shortage in boundaries disappears and with it the sole basis for relocation of the corners of the South line of Section 25 by proportionate means.
Upon commenting on the proportionate method, the following points were brought out. Proportionate measurement “must not be resorted to unless all other prescribed methods fail” (Verdi Development Co. v. Dono - Han Mining Co., 296 P 2nd 429). Proportionate measurement is not used “if the line can be retraced as it was established in the field” (County of Yolo v. Nolan, 77 P 1006). “If the exact spot (for a corner) cannot be found, it (the court) must, if possible, decide from the data appearing in evidence its (the corner) approximate position, and the proportionate method is to be used only when no other reasonable method is possible and it must be so used that it does not contradict or conflict with the official data that are not impeached, and which, when not impeached, confine the actual position within certain limits.” (Weaver v. Howatt, 161 Cal 77). “The law is well established that the obliteration of a monument made in a survey does not destroy such survey nor justify a court in disregarding it where enough data remain to locate the place occupied by the monument by reference to natural objects referred to in the survey. Nor does such obliteration justify the adoption of the proportionate method of locating a common corner as a lost corner, where the field-notes refer to certain natural objects which can be found along the line mentioned so as to approximately locate it.” (Hammond Lumber Co. v. Haw, 274 P 386).
The court found that the corners were obliterated, not lost. In deciding where to locate the obliterated corner, the court examined (by field trips) the topography and other evidence to be found in the field and compared the topography and evidence with the original field notes. J. R. Glover, a United States Deputy Surveyor, made the original controlling survey in 1881 and 1883. The terrain was rough. The marks set by Glover to monument the corners of Section 25 were not found.

The southwest and southeast corners of Section 36 were found and were not in dispute. The rerunning of the westerly line of this section illustrates the court’s processes of relocating the obliterated corners. The call of Glover’s notes is “Ascend. 31.00 (chains) Top of spur, bears East and West, descend.” The court found this spur at a distance of 31.26 chains with certainty. The next note states, “67.57 Cross gulch 10 links wide, course Northwest and ascend.” The gulch was found identifiable with certainty, but it was found to be 73.20 chains north of the southwest corner instead of 67.57 chains. The next call was “70.00 Top of spur, bears Northwest and Southeast and descend. 80.00 set post for corner.” There was an ascent to the spur and a descent to the corner. If proportionate measurements were used, the proportionate point would fall on the ascent to the spur instead of on the descent from it. The court found that the most certain location for the section corner was 12.43 chains north of the gulch and on the descent as called for in the field notes. This made the section line 85.63 chains long. Superior had contended there was a shortage of five chains; the court concluded that there was an overage of 5.63 chains.
The east boundary of Section 36 did not have many natural monuments. The east boundary, being a township line, was retraced twice by early deputy surveyors and found by them to be as originally reported (or very nearly so). Certain “descents” and “enter rolling land” were identified closely in accordance with the original notes. Since the terrain was consistent with the notes, the court ruled that the proper location of the corner was 80.12 chains (at N 00° 06’ 20” W) from the southeast corner of Section 36 as called for in the original notes. The bearing was arrived at by means not clear in the report.
The following points, as quoted from previous court cases, were brought out. “It is not the province of the Court to determine where the corner should have been fixed. This is not an action to vacate the government survey. It must be assumed that the line was measured and the monuments set. Their positions, as set, fix the rights of the parties, regardless of the inaccuracy of the measurements and the errors in distance found in the field-notes. The trial court must ascertain, as near as may be, where this monument was set by the government surveyor.” (Weaver v. Howatt, 161 Cal. 77). On page 86 of this same case is stated, “It is for the trial court, upon all the evidence, to fix the place at a point where it will best accord with the natural objects described in the field notes as being about it, and found to exist on the ground, and which is least inconsistent with the distances mentioned in the notes and plat.” And in 171 Cal 302 is, “The court is bound to assume that the line was run on the ground and that the post was set in a mound of stones at a place fixed for the common corner of the four sections as the field notes show. All trace of that monument has disappeared, and the exact place where it was erected cannot now be identified. But under the above rules these circumstances do not destroy the survey nor justify the court in disregarding it, when enough can be ascertained therefrom and identified on the ground to approximately locate the corner. The court, under the above authorities, and in obedience to the former decision of this court, could not do otherwise than it did, that is, fix the corner ‘at a point where it will best agree with the natural objects described in the field notes as being about it, and found to exist on the ground and which is least inconsistent with the distances mentioned in the notes and plat.’ The government owned the land, caused the survey to be made, and sold the land by reference thereto. Purchasers must abide by the results regardless of the lack of rectangular shape of the subdivisions so made.”

Comments on the case. In this case proportionate measurement was rejected for the obvious reason that the original location of corners from which proportionate measurement could have been made were never proven. If the location of the corners north of the obliterated corners could have been identified beyond a shadow of doubt, would the outcome have been the same? I am inclined to think that it would.
Proportionate measurement, as clearly brought out, is a “rule of last resort.” All other means must be proven inapplicable before resorting to proportionate measurement. “In the absence of senior rights, excess and deficiency found to exist between original monuments are distributed among the lots in proportion to the original record measurement of the lots. This is a principle of last resort.” (Boundary Control and Legal Principles, by Curtis M. Brown).

When the public lands were surveyed, field notes were kept. The terrain, natural monuments accessories, and like objects called for in the original government field notes make it improbable that proportionate measurement will be used to restore corners in sectionalized lands. But in the case of private surveys, such as a local subdivision done by a local surveyor, field notes are usually not available. Without field notes to identify natural objects, the usage of proportionate measurement, as a last resort, is much more frequent. The number of times that proportionate measurement may be used increases with a decrease in knowledge of what the original surveyor did. Proportionate measurement is a means of disposing of errors the location of which cannot be explained, and, with meager original survey notes, many errors cannot be explained.
The method used by the court to locate lost corners by identifiable natural objects is following well-established principles. Quoting from Boundary Control and Legal Principles: Section 171. “The boundaries of the public lands, when approved and accepted, are unchangeable, except by re-subdivision.” Section 172. “The original township, section, and quarter-section corners must stand as the true corners which they were intended to represent, whether in the place shown by the field notes or not.” Section 177. “The plat and all the original field notes become a part of the grant.” Section 184. “Where the direction of a line can be determined from the mean position of line trees or blaze markers, the direction so established will be controlling where the corner monument is lost. Sometimes a stream or canyon crossing becomes controlling, especially where the crossing is close to a corner.”

When making a survey, it is often a temptation for the surveyor to “bury” discrepancies by proportionate means rather than diligently spend the time to discover the cause of the discrepancy. Proportionate measurement should not be used except as a last resort.

- Curtis M. Brown

One more from Curt Brown
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THE SURVEYOR AND THE LAW

Remnant Rule and Proration

September 1960

Dear Mr. Brown:

At the Minnesota Land Surveyors meeting in April [1960] will you comment on the Barrett Perkins case (113 Minn 480)?
(signed) HAROLD HOFSTRAND

DISCUSSION:

Below are shown the essential data of Hughes’ Addition to the City of St. Paul. The significant facts are:

(1) Lot 22 scales 50 feet, more or less, but not 75.38 feet as indicated.

(2) The block, when measured, is 25 feet short.

(3) The court ruled that Lot 22 must take all of the shortage merely because it was irregularly dimensioned, or more specifically, it was a remnant.

Court cases should be viewed with caution. Each case is judged on its own merits. A case that is similar, yet has one point of difference, may end up with opposite results. The Barrett-Perkins case, like all other court cases, cannot be taken at its face value and extended to all other cases which by outward appearances seem to be similar.
If we are to believe the Barrett-Perkins case, which I do not, the remnant rule may be applied in Minnesota. However, the case does not spell out when the rule may or may not be applied. To apply the remnant rule, according to this case, two elements must be present and a third one is implied. First, there must be regular sequence of lots with uniform width, said width usually being in even feet. Second, there must be only one-odd shaped or one irregularly dimensioned lot at the end of the block. The theory is that if the subdivider had known that there was a different block length he would have given it to the end lot, hence excess or deficiency should be given to that end lot. The implied third element, slighted, but there, is a mistake.
This remnant rule has obvious shortcomings. It is never proper to conjecture on what a man would have done had he known differently; what he did is what counts. The remnant rule is based upon a possibility, not a probability. Very few jurisdictions accept it, and I am in complete agreement that it should not be used.
Why should a fully dimensioned lot be reduced in size merely because it is off shaped?

The remnant rule is like color of title in that by outward appearances it seems to be good, but actually it is not. There are numerous circumstances whereby the end lot in a block is given all the surplus or deficiency, but the reason for giving the end lot the surplus or deficiency, in my opinion, should never be attributed to the remnant rule. While the verdict in the Barrett-Perkins case was just and correct, the wording of the opinion of the judge was unfortunate.
Before going into an analysis of this case, I would like to remind you of three legal principles that all of us recognize as being correct.
First, I think that you will all agree that once a surveyor sets an original monument or line and conveyances are made calling for that monument or line, the line is fixed in position and can only be changed by resubdivision. While it is true that title lines may be altered by unwritten rights or by written conveyances, original lines, except for resubdivision or where a senior right is interfered with, are unalterable.
Second, if the original surveyor makes a mistake in recording his measurements and monuments are in conflict with his record distances, the monuments control. What the surveyor set upon the ground is proof of what he did; what he records is merely an aid to find what the surveyor did on the ground. A mistake in recording measurements does not serve as an excuse to change monument positions. If a surveyor makes a mistake in a particular lot, that mistake is left in that particular lot. To bring this principle of mistake into operation there must be sufficient evidence to show that there was a mistake and also there must be sufficient evidence to prove where the mistake belongs. A mistake, the location of which cannot be fixed, must be disposed of and proration is often applied, but a mistake that can be localized is never prorated.
Third, proration is a rule of last resort. If there is proof of where excess or deficiency belongs, then that discrepancy is placed where it occurs. If someone is designated to receive a remainder, then proration cannot apply. Proration is a means of disposing of errors, the positions of which cannot be fixed. It is not a means of distributing a discrepancy that can be proven to exist in one spot.
Below are a series of actual circumstances that illustrate the shortcomings of the remnant rule and also illustrate the above points.
In Figure 1 is a condition to be found along the Rancho El Cajon land grant line. It can be proven by existing monuments that the government surveyor, for some unexplainable reason, did overlap the true grant line by some 1,200 feet. In such a situation, the 1/16 corners, or, as they are sometimes called in Wisconsin, 1/8 corners, should never have been penalized by prorating from the true grant line. Corners are prorated from the location as monumented by the government, then the area lost by overlap is subtracted. The 1,200 feet of deficiency is not prorated. By appearance, the remnant rule seems to apply in this circumstance, but obviously the reason for giving the deficiency to the odd lottings is because of a mistake and not because of the remnant rule.
Figure 3 illustrates this same point. Part of the Bay of San Diego was subdivided. Since title to land below the mean high tide line could not be conveyed, part of Lots ‘F’ and ‘G’ could not exist. Lot ‘F’ was fixed in position and cannot be enlarged by proration. All the deficiency in this block was caused by a mistake (the mistake of subdividing San Diego Bay) and that mistake belongs in Lots ‘F’ and ‘G.’ The deficiency of some 4.5 feet is certainly not prorated. Here again the remnant rule seems to be applicable, but in reality it is not. A mistake caused the trouble.
Figure 2 shows a condition found to exist between San Diego and former East San Diego. The boundary between the two cities was formed by a Spanish Land Grant line. When surveying blocks within the subdivision of City Heights, all blocks except those adjoining the land grant line are found to be of record measurement; those adjoining the land grant line are 4.8 feet long. In the University Heights subdivision, all blocks except those adjoining the land grant boundary are of record measurement; those adjoining the boundary are 4.8 feet short. The implication of the evidence is obvious. After the subdivisions were filed and of record, the City of San Diego improved, paved, and tie pointed Boundary Street. At the time they did this, they located the true land grant line some 4.8 feet westerly of the old line. The surveyors for the subdivisions were definitely wrong. Unfortunately, this took 4.8 feet away from one side of Boundary Street and gave it to the other side. In such a situation, proration from the new street line cannot apply. The lots that had their land taken away by the City must suffer the loss. Proration only applies from the original position of lots, never from a new position gained by occupancy. The remnant rule appears to be proper in this circumstance, but the real reason is adverse occupancy. While adverse occupancy can alter title lines, it can never alter original survey lines.
Figure 4 shows a situation almost identical to that found in the Barrett-Perkins case. Lot ‘D’ has a dimension of 66.58 feet on the map, yet it scales 96 feet. A mathematical closure of the data shown on the original map reveals that the lot will not close by 30 feet east and west. The 66.58 feet is proven to be a mistake and should be 96.58 feet. Only a fool would try to argue that the 30 feet of excess must be prorated among all the lots. The intent from scaling the drawing and the intent as disclosed by a mathematical closure was to make Lot D 96.56 feet. Mistakes are placed where they occur and in this case, it is in Lot ‘D.’ The excess of 30 feet is not prorated. The reason for doing so is not because of the remnant rule - both ends of the block are remnants. The reason is because of a mistake in Lot ‘D.’
To me, the Barrett-Perkins case is an identical situation. If all of you will scale the east-west dimension of Lot 22 on the map before you, you will find it to be 50 feet. To show the absurdity of the lower court’s contention that the length of Lot 22 was 75.38 feet, scale off on the southerly line of Lot 22, 75 feet from the southeast corner. You will find that it falls exactly on the lot line between Lots 21 and 20. Next draw a straight line connecting this point and the most northerly corner of Lot 22 as plotted. You have a diagonal line completely out of agreement with the original subdivider’s intent.

A mistake was made on the map and it is placed where it occurs, namely in Lot 22. The fact that the block is almost 25 feet short also proves this. The original subdivider made a mistake by the width of a 25-foot lot.
I am in complete agreement with the court in the final outcome of its verdict, but I do not agree with the reasoning, i.e., the application of the remnant rule. The judge noted that there was a mistake and said so; he should have stopped right there.
The syllabus in a court case is the opinion of the reporter or abstractor of the case. In this syllabus the abstractor indicates that a mistake is the cause of the trouble and because of this mistake the deficiency must fall in Lot 22. The judge in his analysis accented the idea of the last lot being a remnant, hence, so he says, the mistake is to be put in the last lot because it is a remnant. If he had said that the deficiency belongs in Lot 22 because of a mistake, he would have been on firm ground.

The remnant rule of giving surplus or deficiency to the last lot merely because it is irregular in dimension is without reason. In one block along the City of San Diego boundary line the situation is shown in Figure 2A. As pointed out, the reason for the shortage indicated is that 4.5 feet was taken from Lots 10 and 11 when Boundary Street was improved. According to the remnant rule, every lot would be shifted 4.5 feet westerly and the shortage given to Lots 1 and 20. In such a situation the remnant rule can never apply! The deficiency must be placed where it occurs, namely in Lots 10 and 11. This is exactly the reverse of the remnant rule.
The judge in the Barrett-Perkins case did render the correct decision, but I can hardly believe that he meant his decision to apply to every case wherein a dimensioned irregular lot exists at the end of a block. The more logical view of his opinion is, “Where there is a remnant lot and the evidence supports the idea that the remnant should receive all the excess or deficiency, then place it there. But if the evidence shows that the remnant lot was to receive its full measure, it is entitled to an equal share of surplus or deficiency.” Viewing his decision in this light it makes sense. You will note that one of the closing statements of the judge was, “The rule furnishes a definite and safe method and guide for mistakes of this type.”
At law, every case is judged on its own merits, and this case justified his opinion. Another one might not. To illustrate the proof of this we need only to refer to sectionalized lands. The most northerly and most westerly tiers of lottings in a township are remnants; they are what is left over. Yet the judges have uniformly refused to apply the remnant rule even in extreme cases when justice would be better served by doing so. In the case of Goroski v Tawncy, 121 Minn 189 the evidence was as shown in Figure 5.
Three section lines proved that the original surveyor had, in fact, set the 1/4 corner very close to 40 chains from the section corner and that very large deficiencies existed in the closing half mile. What would be more logical than to apply the Barrett-Perkins idea in relocating the lost 1/4 corner between Sections 1 and 6 and thus place the entire remnant mistake of 15.39 chains where it logically belongs: in the last half mile? But, did the court do this? Despite all the evidence that a mistake should belong in last half mile and despite the remnant rule, the lost corner position was determined by proration. The remnant rule does not apply to sectionalized lands, yet if the law were consistent with the Barrett-Perkins case, it would. This merely points to the fact that Minnesota law can frown upon the remnant rule.
While it is true that in most instances where there is a remnant, the remnant rule does appear to apply, it is also true that in most instances there is another more logical rule for giving the deficiency to the end lot; i.e., the rule of a mistake.
In most blocks with small measurement errors, we adjust our chain to the original length of the original surveyor’s chain and no problem ensues. This is the measurement index principle. But where there is a large discrepancy, the chances are that a blunder was made and the entire mistake belongs where the blunder occurred.
A far better rule than the remnant rule is: “Seek the cause of surplus or deficiency, and if a mistake can be found, place the mistake where it occurs.”

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Brown:
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Proration does not apply where senior rights exist.

If a person has conveyed part of his property to another, he cannot at a later date convey it to someone else. The first deed gets all that is coming to it and the seller owns all of the remainder. If a person owns a remainder, no excess or deficiency exists. A remainder does not have a definite size; it is more or less in character. A person may have more or less land than he expects, but, so long as he has a remainder, the unexpected quantity of land, be it large or small, is all his. It is not divided among several owners.

The key to understanding when proration is applicable and when it is not are the words “time” and “creation.” If parcels are created in sequence with a lapse of time between them, senior rights exist and proration does not apply. For example, if Brown sells a parcel to Jones and at a later time sells another to Smith, Jones has senior rights over either Smith or Brown’s remainder. Smith is senior to Brown (the seller must deliver all that he has sold, hence the seller is junior to the buyer), but junior to Jones. Brown is junior to both Smith and Jones. Where such junior and senior deeds exist, any measurement that differs from the record measurement is applied to the particular property to which it is applicable, and this is usually determined by senior rights. It is not divided among all the properties.