Avoiding Misinterpretation of Deeds in Boundary Retracement Surveys
Author Jodi Picoult once wrote, “Words are like eggs dropped from great heights; you can no more call them back than ignore the mess they leave when they fall.” Her observation affixes a clever spin to an obvious truth affecting not only boundary lines, but contracts, office management, and even our interactions with co-workers or clients. The fact is words matter, and as surveyors, our choice of words or interpretation of them can have far-reaching effects.
What Do You Mean?
Consider, for instance, casually announcing to a field technician that “the fence corner is probably the property corner.” While the remark may be technically correct, it implies that a diligent search for the actual corner, which may be buried mere feet away, is unnecessary. A licensed professional land surveyor would certainly never instruct a crew member not to search for monumentation. Yet this statement, barring the presence of a clearly visible monument, has the effect of telling the technician to “locate the fence and move on.” Why is that?
The significance of the comment, specifically the use of the word “probably” does not lie with the intention of the speaker, but rather the perception of the audience. In all likelihood, halfheartedly searching for monumentation is not a calculated decision, but a misunderstanding based upon how the technician perceives the situation. The same thing can mean different things to different people.
Human beings are generally unaware of the way we perceive the world around us. We habitually and automatically respond to information based upon previous experience. Who hasn’t jumped back and recoiled at the sight of a big snake, only to realize it’s a coil of tattered rope? Past experience has conditioned us to respond to the stimulus, in this case, a length of rope, as if it were a serpent.
The same is true of our technician, who after fruitlessly searching for property corners near fence lines for the past eight months, may have been conditioned to accept fence corners on faith alone.
The Chicken or the Chicken
Although not related to land surveying, the case of Frigaliment Importing Co., Ltd. v. B.N.S. International Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960) is a wonderfully absurd example that provides an interesting parallel to boundary retracement. The litigants are “embroiled” in a dispute stemming from the question, “What is chicken?”
Frigaliment Importing, a Swiss company, entered into a contract to purchase frozen chickens of two sizes, 1½ to 2 pounds and 2½ to 3 pounds, from New York-based wholesaler B.N.S. International. Upon receiving the shipment, the buyer discovered that all of the larger birds were so-called stewing chickens as opposed to the broilers and fryers they were expecting. They immediately cried “fowl” and brought suit against B.N.S. International for breach of contract.
The court was compelled to address the question, “What is chicken?” The plaintiff argued that “‘chicken’ means a young chicken, suitable for broiling and frying.” The defendant insisted that a chicken is “any bird of the genus that meets contract specifications on weight and quality, including what it calls ‘stewing chicken.’” The judge hearing the case conceded that either interpretation is possible, declared the term “chicken” by itself to be ambiguous, and was forced to look elsewhere within the contract for clarification. This should seem familiar to the land surveyor accustomed to looking to the four corners of a deed for meaning.
When all of the evidence was reviewed, the court found that the defendant believed they were in compliance with the contract by delivering stewing chicken of the appropriate size. What’s more, the court found the plaintiff did not meet the burden of proof to show that the word “chicken” was used in the narrower sense to indicate only broilers or fryers. The action was ultimately dismissed.
Did They Write it Right?
As absurd as it seems, the confusion surrounding the word “chicken” is akin to the ambiguity swirling about a recent boundary dispute. I presented a summary of the case to a group of Ohio land surveyors only after they were gracious enough to answer my relatively painless questionnaire.
The group was asked to shade in or otherwise hatch the “left end” of a rectangular figure. Seventy-one surveyors, with an average of about 32 years experience, attempted to follow the instructions. Of those, 19 respondents (27 percent) shaded an area approximating half of the rectangle. The remaining surveyors hatched a much smaller area. Interestingly, no one requested clarification of the ambiguous term “left end.”
The same task was given to 21 nonsurveyors of various backgrounds. Thirteen of these respondents (62 percent) hatched an area approaching half of the rectangle! Although there were a lot of questions, not a single person asked what the term “left end” meant.
As anticipated, experienced land surveyors at a continuing education conference were somewhat reluctant to view the term “left end” as equivalent to “left half.” Somewhat surprising was the ease with which the non-surveyor participants equated the two. Equally unexpected was the fact that no respondents in either group requested clarification, apparently taking the ambiguous term “left end” at face value. The example presented in Ohio and summarized below hinges on that very concept.
Lot No. 3, 2nd Division on the right of Enoch Fish in the defunct township of Philadelphia, Vt., is now just a remote corner of land spanning the towns of Chittenden and Goshen, Vt. It is the object of a longstanding and complicated boundary feud, which is finally on the path to being settled. Like many disputes, there is a great deal of ambiguity in the records and on the ground.
In February of 1887, John A. Conant conveyed several parcels of land to one Julia A.C. Jackson described as “the Young Lot so-called, being Lot No. 4 bordering in the Town of Goshen and the North half of Lot No. 3, situated next South of the Young Lot and lying partly in Goshen, but mostly in Chittenden, extending to the North line of the Mineral Lot so-called, said lots measuring 160 rods with an addition of about seven rods being allowed for highways.” A retracement survey of the property was prepared in 1912, noting the North half of Lot No. 3 and holding an “old blazed line” and “mound of stones” that roughly approximates the halfway point of the lot. Later deeds reference the survey and parrot the call for the North half of Lot No. 3.
Unfortunately, Conant was not expressly deeded the North half of Lot No. 3. In point of fact, he was deeded the North end of the lot. The original parcel of land conveyed to Conant by Seth Keeler in November of 1834 is described as “Beginning at a beech tree, it being the South West corner of a lot of land deeded by Josiah Young to John Conant... thence S 5° E on the East line of Brandon 100 rods; thence E 30° N 160 rods to the Easterly line of the lot; thence N 5° W 100 rods to the corner of the lot...; thence W 30° S 160 rods to the place of beginning. It being the North end of Lot No. 3...” In point of fact, it is generally held that the courses cited as 160 rods represent a scrivener’s error and should read 180 rods.
Although the actual dimensions for the whole of Lot No. 3 were found to be somewhat larger, deed descriptions purport it to measure 262 rods North to South and 180 rods East to West. Keeler obtained the lot in May of 1834 and immediately conveyed the so-called “Mineral Lot” from its southern end. The parcel was described as measuring 160 rods North to South and is believed to be contiguous to the Conant parcel, which was created several months later. Given this information, it seems that Keeler’s intentions were quite clear. However, the passage of time, a few insufficient deeds and an imperfect retracement survey have muddied the waters a bit.
At the risk of oversimplifying a complicated problem, the disputes arising from the subdivision of Lot No. 3, 2nd Division appear to have deep root in the meaning of the words “North End.” Our friends in Ohio have demonstrated how a trained land surveyor is likely to view such an ambiguous term, but what of the non-surveyor landowner? Over 60 percent of the non-surveyor participants in our informal study seem to equate the word “end” to “half.” It is possible that an ill-informed layman built a mound of stones and blazed a line somewhere near the halfway point of Lot No. 3.
And what should be made of the 1912 retracement survey? Did the surveyor merely hold a line evidenced in the field by some old blazes and a mound of stones not referenced in any deed? Perhaps they only read Conant’s deed to Julia A.C. Jackson, and finding evidence at or near the halfway point of Lot No. 3, decided that was close enough. Is it possible that they actually reviewed the information and were so influenced by their own perceptions that the words “North end” and “North half” came to mean the same thing? The truth I’m afraid is lost in time.
These examples clearly show that language, whether written or spoken, can be a slippery device. As land surveyors, our words and how we interpret the words of others can have a significant impact on those around us. It is up to each and every one of us as professionals to choose them wisely. To quote Mark Twain, “The difference between the almost right word and the right word is really a large matter — it’s the difference between the lightning bug and the lightning.”