Hierarchy of Deed Elements

[Administrator]

Hi everyone,

I'm hoping someone can help me with a request from a CLSA member who does not have a forum account.

On page 307 of Browns Fifth Edition of BOUNDARY CONTROL AND LEGAL PRINCIPLES is a section entitled "Order of Importance of Conflicting Elements that Determine Land and Boundary Location". These elements are often cited in court cases. However, I have spent many hours looking at State Law to see if they have been codified. No luck!

Can you send this on to your contacts to see if anyone knows of such elements having been codified? Please.

Thank you.

[David Kendall]

For California:

CODE OF CIVIL PROCEDURE - CCP
PART 4. MISCELLANEOUS PROVISIONS [1855 - 2107] ( Heading of Part 4 amended by Stats. 1965, Ch. 299. )
TITLE 6. OF EVIDENCE IN PARTICULAR CASES, AND MISCELLANEOUS AND GENERAL PROVISIONS [2074 - 2094] ( Title 6 enacted 1872. )

CHAPTER 1. Evidence in Particular Cases [2074 - [2077.]] ( Chapter 1 enacted 1872. )

[2077.]
Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:

One—Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.

Two—When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.

Three—Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.

Four—When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.

Five—When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance.

Six—When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.

(Amended by Code Amendments 1873-74, Ch. 383.)

https://leginfo.legislature.ca.gov/face ... awCode=CCP

[mpallamary]

I think the current edition is the seventh. As a rule, Curt identified his references at the end of the chapter under References and Notes. I would look there.

Curt initially started out with a California-centric approach but then went national. I worked on a lot of material with Curt.

[David Kendall]

In ascertaining location the guides in the order of importance are: (1) Natural objects; (2) artificial objects; (3) adjacent boundaries; (4) courses; (5) distances; (6) quantity. But the rule is flexible, and it does not control against the intention of the parties as shown by the description taken as a whole. The order of the importance of the guides is manifestly the more flexible when the description of subdivisions of a tract is ascertained by protraction and not by actual survey.

Ewart v Squire, 239 F. 34 - Dec. 2, 1916 United States Court of Appeals for the Fourth Circuit No. 1381

[mpallamary]

Good stuff!