Unmistakable Marks: The Dictionary is Not Always a Fortress
The intent of deeds, contracts and legislative acts are common sources of dispute between surveyors and other land use professionals. While Justice Thomas Cooley of Michigan is often quoted for relevant land surveying concepts and legal aspects of boundary retracement, many other judges have made contributions that are equally important.
Judge Learned Hand of New York provides this food for thought on proper interpretation of documents: Cabell v. Markham: 148 F.2d 737 (1945): Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. This quote provides valuable perspective for those whose first impulse is to dive for the dictionary.
A prime example is the common failure of dictionary definitions of the term “mineral” when applied to mineral rights disputes. One common truism associated with this word is that “if it isn’t animal or vegetable, it must be a mineral.” However, the “animal/vegetable/mineral” categorization of substances is generally inapplicable to these disputes, despite frequent attempts to use it to define limits between a mineral estate and the surface estate immediately above.
In Keith v. Kinney: 140 P.3d 141 (2005) The Colorado court includes an in-depth discussion of the term “mineral” that explicitly rejects what the court considers a simplistic argument for a strict dictionary interpretation. In this instance, the question was whether sand and gravel were included in a general reservation of a mineral estate: Kinney argues that the commonly understood meaning of “minerals” unambiguously includes sand and gravel. To support his argument, he relies on the dictionary definition of “minerals,” which includes “an inorganic substance,” “something neither animal nor vegetable.”
Judge Graham notes that the parties to the original conveyance were probably not well-versed in chemistry or geology and that there is no single interpretation that would apply to all writings in all circumstances. Thus, the ambiguity often associated with the term necessitates the consideration of surrounding circumstances in order to determine the actual meeting of minds between the parties.
After analyzing numerous previous rulings, the court concludes that sand and gravel are not generally included in the blanket phrase “mineral estate” but that the situation was sufficiently ambiguous to merit consideration of the surrounding circumstances.
The phrase “right-of-way” presents a classic problem where standard definitions fail, due in large part to the extent to which the term has been abused by the courts and by the public. Courts nationwide recognize that the use of this phrase in association with a railroad virtually guarantees ambiguity in a legal description.
The Texas court highlights this problem in S.H. Oil v. Texas & New Orleans R.R.: 295 S.W.2d 227 (1956): While it appears to be true that when used in this state in an instrument of conveyance to describe or to limit the estate that is the subject of conveyance the term “right of way” is to be construed as describing or as denoting only a servitude of passage or a mere easement, … the term is nevertheless recognized by our courts as having a twofold signification and as being used upon occasion and in other circumstances to describe or denote the right-of-way strip of land itself. While individual state courts vary somewhat in the rebuttable presumptions associated with railroad rights-of-way, virtually all agree that use of the term requires a careful interpretation of the remainder of the document and the circumstances of the original conveyance.
Difficulties associated with the term “right-of-way” are also considered in the Washington ruling Ray v. King County: 120 Wn. App. 564; 86 P.3d 183 (2004). Judge Cox provides a helpful list of circumstances that provide indicators of the ultimate intent, but emphasizes that they are guides rather than absolutes. The list includes:
- Additional language clarifying the purpose for the conveyance.
- Limitations for a specific purpose or purposes.
- Language differentiating an easement over the land from the land itself.
- Grant limited to construction of improvements.
- Consideration paid (substantial or nominal).
- Reversion clauses or limitations associated with railroad use.
- Language in the habendum clause.
Reservation vs. Exception
As with the example above, the terms “excepting” and “reserving” create headaches for the courts, particularly when used together or interchangeably. Campbell v. Johnson: 622 N.E.2d 717 (1993) is an Ohio decision that summarizes the doubt and ambiguity that are nearly universal in American courts when considering the difference between a “reservation” and an “exception.”
Both terms have classic dictionary and legal definitions that have been broadly recognized in the courts for many years. In general, a “reservation” creates a right, while an “exception” results in a separate tract. However, due to sloppy application of the terms in more recent times, the standard definitions have little value in modern courts: Although the terms “excepting” and “reserving” mean different things, the two terms are often employed “indiscriminately.” … As a result, the terms employed, in and of themselves, do not definitively establish whether an exception or a reservation has been created.
The term “navigable” is another stellar example of a single word where the dictionary fails to provide all the answers. This term is subject to multiple definitions depending on circumstances and jurisdiction. In United States v. Appalachian Electric Power Co.: 311 U.S. 377 (1940), the U.S. Supreme Court is focused on the status of a stretch of the New River near the Virginia/West Virginia border. Justice Reed observes: The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances and at all times. Our past decisions have taken due account of the changes and complexities in the circumstances of a river. We do not purport now to lay down any single definitive test.
This comment clearly illustrates that the simplicity is not a virtue when the underlying issues are complex. In disputes of this type, over-simplification for the sake of mere convenience results in confusion rather than clarity.
The New York court echoes a distaste for attempts to homogenize relevant definitions with a blender. In Douglaston Manor v. Bahrakis: 678 N.E.2d 201 (1997): Defendants, instead, urge a definitive landmark ruling from this Court, through the instrumentality of this case, that New York State has abandoned the common-law property distinction between rivers navigable-in-fact and those navigable-in-law. As a result, they claim a public right of fishery in all “navigable” waters. This is not so and is too simplistic an approach, which would precipitate serious destabilizing effects on property ownership principles and precedents. (emphasis added)
The Delaware court demonstrates a touch of humor in its arguments against the dictionary definitions in a dispute over the difference between a pond and a lake. Oral arguments include an admission that Red Mill Pond was large enough to be considered a small lake, but the court considers the distinction irrelevant when determining its navigability: This opinion neither decides the issue of whether a “pond” can be deemed navigable water under the language of 7 Del. C. ß 7202(b) nor the issue of when a large pond becomes a small lake. [Extraordinarily useless definitions of “lake” and “pond” can be found by the interested in Webster’s Third New International Dictionary (1981) at pages 1265 and 1762 respectively.]
These and other examples illustrate the dangers of over-reliance on simplistic definitions and gut reactions when dealing with complex issues relating to property rights. It is the responsibility of land-use professionals to have a complete understanding of the legal terms associated with their professions in order to avoid the traps that can be found in the fortress.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.