The process of writing a description of property to be included in a deed of conveyance is, by nature, imbued with uncertainty and cloaked in subjectivity. Just think of the countless parties who have set upon that undertaking with the goal of conveying the intent of the grantor, possessing divergent abilities for the task or perhaps none at all. Innumerable descriptions of land have been written in law offices, court houses, outhouses, and at kitchen tables with little or no assistance from surveyors – yet land was conveyed. It is often the difficult task of the land surveyor to determine the on-the-ground location of these conveyances.
“One of the most important duties the surveyor is called upon to perform in connection with his work, and the attorney in advising his client, is as to the construction or meaning to be given to the words used by the grantor or maker of an instrument, containing a description of property to be surveyed or under consideration. Not infrequently the surveyor is confronted with such a question, in the country, many miles from his office. He has no authority to consult, and must make his decision, more or less in the dark, so to speak.”1
The problem of being “many miles from the office” with “no authority to consult” has been taken care of by modern advances in transportation and technology. Even still, when it comes to the description of property in deeds, if nothing else, the land surveyor should be an expert in the interpretation of the words used by the scrivener who put to paper a description of land that exists on the ground. Interpreting the words used is the first – and most critical – of many steps that must be taken in the process of performing a retracement survey of property.
Unfortunately, experience has taught us that the interpretation of the words used in a description of property is perhaps the most abused and negligently performed step in the retracement process. Too many surveyors have distilled the task down to a geometry problem, giving little or no effect to the true intent of the conveyance. The result has been that in the modern-day retracement scenario, perhaps the most difficult task is dealing with the appallingly negligent and dreadful work of the past six decades – subsequent to the introduction of the idea that boundary surveying is a math problem. Don’t worry. That’s as far as I’m going with that line of thought for this column.
The Rules of Construction
The courts have been dealing with the problems associated with deciphering words used in legal instruments for centuries. For at least the last 240 years in this country, and for another 1,000 years prior to that under the English common law, the courts have been tasked with interpreting the words used in legislation, constitutions, contracts, deeds, descriptions in deeds, affidavits, wills and other such instruments. As a result, the courts have developed what are commonly referred to as the ‘rules of construction,’ or court-made rules for the interpretation of words used in these various instruments when the meaning is ambiguous, uncertain, conflicting or in dispute. Some states have gone to the trouble of codifying some of these rules. In most jurisdictions, they are imbedded in court decisions, making them not-so readily available for consumption.
Because of this heavy infusion of court decisions from various jurisdictions, the rules have become almost universal in recognition and acceptance, but not necessarily universal in application. This means that most of the rules cannot be taken as hard-and-fast. Read out of context, they can actually be misinterpreted, misapplied or not applied at all when, in fact, they should have been. For instance, while it is universally accepted that extrinsic evidence can be necessary for the proper interpretation of the intent of a conveyance, application of the rule varies. It seems that most courts freely allow extrinsic evidence to explain ambiguities in deeds, while other courts will only allow extrinsic evidence if the deed is patently ambiguous.
“A court may look to extrinsic evidence to discern the meaning or intent of words or terms used by contracting parties, even when the parties’ words appear to the court to be clear and unambiguous.”2
“When the boundaries of a tract can be determined by reference to the description in a deed, parol evidence is not admissible. The statements and acts of adjoining landowners are not competent evidence of the location of a boundary when the boundary can be located by the calls in a deed. But when the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land.”3
This, of course, could lead to an examination of what constitutes patent ambiguities and latent ambiguities, but we don’t have time for that right now.
When a boundary dispute goes to court, there is a disagreement over some aspect of the property lines involved. Often, the dispute is over the interpretation of the words used in the conveyances, or perhaps, two surveyors’ interpretation of those same words and the conflicting survey results. As they have for centuries, the courts will utilize the rules of construction to decipher the true intent of those conveyances and determine the superiority of the rights of the litigants. It would seem, then, that it would be incumbent upon the reasonably prudent land surveyor to be well-versed in these same rules, if the goal of the retracement surveyor is to render a well-reasoned opinion on the location of the property lines at issue. This is just common sense.
This is where I might break out an example case or two demonstrating the surveyor’s abject failure relative to common sense, but, as stated above, I’m not going there today. Instead, I will attempt to be a little more ‘constructive’ and discuss a few of the more important rules that should be utilized in daily practice. Keep in mind as we go through these rules, the presumption4 is that the deed is wanting in some respect, i.e., the deed is ambiguous relative to what was conveyed, and more importantly to the land surveyor, as to where the property is located on the ground. For the sake of brevity, supporting case citations have been omitted.
1. Give effect to the intent of the conveyance.
This is the first and most important rule of construction, and the single reason for all the other rules. As a public policy matter, the courts will seek all means available to render a conveyance valid and effective. There are other sub-rules that stem from this one. (1) Equity abhors a forfeiture. This is the reason for the rule. (2) When there are ambiguities, the conveyance will be construed most strongly against the grantor. The presumption being that the grantor was in control of the conveyance and, when in doubt, it will be deemed valid and effective, and the greater estate will pass. (3) The conveyance will be presumed valid and effective if, as oft stated, a ‘reasonably prudent surveyor’ can locate it on the ground. Actually, the threshold is a little lower than that, since any extrinsic evidence can be brought to bear to explain ambiguous intent. (4) The three-step process for finding intent: (i) the ‘four-corners’ doctrine, or search the four corners of the instrument for intent; (ii) next, consider the circumstances at the time of the conveyance; and finally (iii) consider the subsequent acts of the parties (e.g., occupation).
2. Extrinsic evidence is always in play.
When the description in the deed has been deemed ambiguous, extrinsic evidence is not only admitted, but essential to a proper interpretation of the true intent of the conveyance. Simply stated, extrinsic evidence is evidence that exists outside of the deed. It may include other deeds, maps and plats, monuments, measurements, and parol evidence. A survey of the property, if not directly called for in the deed, is extrinsic evidence. When the deed in and of itself cannot explain the intent of the conveyance, extrinsic evidence must be utilized if the conveyance is to be given effect. The gathering and evaluation of extrinsic evidence is always within the purview of the land surveyor.
3. Those things that are most certain are given the most amount of weight.
And vice-versa, those things that are least certain are given the least amount of weight. Obviously, we are talking about calls in the description. A deed that does not close by 60 feet renders the description patently ambiguous — it doesn’t close by 60 feet — it is subject to more than one interpretation as to location. All surveyors know that properties always close on the ground; in reality, there are no gaps, no gores, no overlaps and certainly no properties that do not close. All of these perceived issues happen on paper only. Therefore, if the mistake in the description can be isolated, it will become the ‘false or impossible’ aspect of the description and must be ‘rejected’ to obtain the true intent of the description. Extrinsic evidence will be necessary for a proper interpretation of the meaning of the words used and the true intent of the conveyance.
4. Lines actually run and marked on the ground are superior to all others.
The lines and corners of the original survey, if they can be found, are superior to all other aspects of the description because they are presumed to be emblematic of true intent. This is the basis for the well-known surveying principle of ‘following in the footsteps.’
5. Landmarks are superior to course and distance.
This is a rule that has general acceptance, but does not enjoy universal application. This rule has variations, but the ‘priority of calls’ is generally articulated as: (1) natural monuments; (2) artificial monuments; (3) calls for adjoiners; (4) courses; (5) distances; and (6) quantity.
6. Long-held occupation is of great weight.
Long-held occupation is evidence of title to the property being occupied. When the description is ambiguous, the occupation may be the best available evidence of the location of the true intent of the conveyance. This implicates other rules such as: acquiescence into a long-held boundary can be an evidentiary tool leading the surveyor to the best available evidence of the true boundary; the doctrine of boundary by acquiescence aids in settling the location question when the description is ambiguous; and this rule works hand-in-glove with all of the above.
This is not an exhaustive list, obviously, but the land surveyor would do well to keep these rules in mind when retracing property lines.
- Clark, Frank Emerson, “Clark on Surveying and Boundaries,” Second Edition, Indianapolis, The Bobbs-Merrill Company, 1939, at 525.
- Hollis v. Garwall, 974 P.2d. 836, 842 (Wash.1998).
- Hall v. Staley, 2003 N.C.App. LEXIS 1390 at 6 (N.C.App.2003).
- “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” Black’s.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.