This is the third and last installment on the issue of property rights and the land surveyor. This time we will look at intent in the writing (the deed) and try to answer our ultimate question regarding determination of property rights: If not the surveyor, then who? We know from Olson v Jude [1], and many other cases along this same vein, that occupancy rights that have ripened into legal rights (e.g., adverse possession) extinguish and are superior to written rights. We also know that senior rights are superior to junior rights, but because of the first proposition from Olson (i.e., occupancy rights), in most cases the senior/junior issue is a moot point. The final issue remaining is the intent in the writings.

Intent is King

The intent of the grantor and the grantee is king when it comes to the transfer of property, with a couple of exceptions. The first and most obvious is that the grantor cannot grant more than he owns or has a right to grant. So naturally, it may be the grantor's intent to convey the Brooklyn Bridge, but if he doesn't own the Brooklyn Bridge-well-you get the picture. Similarly, and as we have already discussed, intent is defeated by unwritten conveyances (e.g. adverse possession, prescriptive rights, acquiescence, estoppel, etc.) and by senior conveyances. Again, the grantor can't convey what the grantor doesn't own.

Intent is king, but the intent must be gathered from the four corners of the conveying instrument (the deed). "The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required." [2] In other words, the courts will do everything that they can to construe intent from the document because "the parties' intent is paramount to all other considerations when interpreting"¦conveyances." [3] However, if the document is ambiguous, the courts will look elsewhere to determine intent.

If the intent can't be gathered from the writings, such as when there is ambiguity, then the courts are allowed to look outside the instrument to ascertain the true intent of the grant. "Where a deed is ambiguous, the subsequent acts of the parties are entitled to great weight in determining what they intended." [4] Intent of the parties, as determined from their acts, can also lead to rewriting the description of the property if the intended property is mistakenly described. "[W]here there is no mistake as to the identity of the land intended to be conveyed, but there is a mistake in the description of it, equity may reform the instrument to conform to the true intention of the parties." [5]

It is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties"¦ Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument"¦ The court should be careful to try to give meaning to every clause and provision of the instrument"¦ Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created"¦ Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument. [6]

To restate this as a list of priorities, we could say that the courts will do the following:

  1. The court will first look for the intent in the document itself. The court will search the four corners of the document for the intent of the grantor and grantee. If the intent can be found in the instrument, no further inquiry is necessary.
  2. If there is an ambiguity or if intent is not clear, the court will leave the document and look at factual situations and circumstances at the time the deed was created. This could include discussions between the parties, surveys that were commissioned, boundary monuments that were set, other writings that may point to the intent of the parties, and the testimony of people who have knowledge of those factual situations.
  3. Finally, the courts will look at the acts of the parties subsequent to the conveyance. This could include fences erected, the cutting of timber, and any other activity on the land that will lead the courts to the true intent of the parties. In addition, testimony of locals who have knowledge of these subsequent acts will be heard.
Once intent has been determined, either from the written document, or if there is an ambiguity, from events surrounding the conveyance and/or the subsequent acts of the parties, the line that was intended to be conveyed is the true boundary between coterminous landowners. This is the line that the surveyor should strive to ascertain, because, in the final analysis, no other line really matters.

Ambiguity in the Writing

There are two types of ambiguity that can be found in a deed of conveyance: a patent ambiguity and a latent ambiguity. A patent ambiguity exists when there is something on the face of the document itself that creates more than one interpretation of the meaning of the conveyance. The classic example is a deed that conveys "my house" and I own more than one house. A latent ambiguity, on the other hand, is not readily apparent from an inspection of the document. The usual case that we are familiar with as land surveyors is when two surveyors survey the same piece of property from the same deed and come up with two different results. In the eyes of the court this is a latent ambiguity. Once it is determined that the deed is ambiguous, the courts will leave the writing and look to the subsequent acts of the parties for intent. This usually brings us back to the first proposition in Olson v. Jude: "occupancy rights."

The subsequent acts of the parties are all of those things that surveyors normally observe, measure and locate during the course of performing a boundary survey. The subsequent acts of the parties can include any of the following: monuments set at perceived corners, fences erected along boundary lines, clearing of the land, timber cutting, farming activities, improvements to the land, installation of driveways, erection of houses and other buildings, and the list can go on and on. From a surveyor's point of view, the most significant subsequent acts of coterminous landowners are what they did or what they are doing along their common boundary lines. A good source for this information, which is often ignored by the land surveyor, is to simply ask the landowners where their boundary lines are located. If the case ever goes to court, this will certainly be high on the judge's list of questions to be answered. Why do so many land surveyors ignore this source of information?

Back to Occupancy Rights

Say you're performing a boundary survey. You've traced out the legal description, you've found monuments in place, occupation is matching the monuments, occupation has been there long enough to have ripened into vested occupancy rights per your state law, and you still feel the need to set new monuments 2.324581 feet away from these existing monuments and occupation. Stop for a moment and follow this train of thought. As soon as you set new corners, the judge will determine that there is a latent ambiguity in the deed. There are two possible locations of the written title-yours and the one that is already there. When there is a latent ambiguity, the judge will leave the written document and look to the events surrounding the transaction and subsequent acts of the parties. These are things you as a land surveyor can determine on your own in the field. You can ask the landowners about their property line, you see the occupation, and it's pretty obvious that surveys were performed. Do you really need a judge or an attorney or anybody else to tell you what to do?

If the expert measurer in you just can't let all of this slop slide, there's no law against writing a new legal description that conforms to your new measurements and what will, in all likelihood, be the true boundary lines. What's the downside to writing a new description? Well, if you have made your decision about the boundary lines based on the found monuments, there probably is no downside. The title company may ask you to certify that the new description is the same property as the old description, but you've already made that decision anyway. The upside is that you have now memorialized your determination and any expert measurers who follow in your footsteps will, in all probability, end up on your found corners, especially if you call them out in your description. And finally, who's going to argue with you? Certainly not the previous surveyor because you're holding the existing corner locations. How about the judge? He's not going to make a decision on an issue that never comes to court. How about the neighbors? If your determination is based on what they already recognize, who's going to litigate? So where is the problem in this situation?

The problem arises when you or the next surveyor can't take off the expert measurer hat long enough to recognize vested property rights and correctly apply the law. But you say, "It's not my job to apply the law." I say, "Our entire profession is governed by laws and regulations that we have a responsibility to interpret and apply in our everyday practice. Property law is just another avenue of the law that we are obligated to properly interpret and apply as well." The real question is, do you want to be right or wrong in your application of the law? Setting new monuments that will never be held as correct with a proper application of your state's property laws is wrong, not right.

Your state's laws on adverse possession, prescription, acquiescence, estoppel, agreement, etc., may be slightly different in timing and effect, but are nonetheless applicable to your practice as a land surveyor. I have already discussed Florida's (30 years per MRTA [7]) and Alabama's (20 years by prescription) laws. There are 19 other states with MRTA on the books and every state has some form of adverse possession, many with an ultimate time limit after which all competing claims are barred as a matter of law. As I have said before in this series, determining property rights can be a complicated issue and I stand the risk of oversimplification by even writing about it, but the vast majority of the cases that I have run into in my own practice haven't been very complicated at all. It's been the expert measurer who turned a blind eye to straightforward and easily recognizable property rights who complicated the issue and brought his client and all the neighbors into court to fight it out.

If Not the Surveyor, Then Who?

So, if not the surveyor, then who? We could continue to resign ourselves to the position that these matters are best left to others. Many surveyors do operate this way and are adamant about it. But if we run that train of thought out to its logical conclusion, we would end up with the following:

If surveyors never make boundary determinations that are correct as to the true boundary between coterminous landowners, and the proper resolution of a property boundary must be had in the courts only, why do we need surveyors? We can simply take our boundary issue to the courts for a proper resolution.

But the courts don't want this. "As a matter of public policy and for the repose of society, it has long been the settled policy of this state, as of others, that antiquated demands will not be considered by the courts, and that, without regard to any statute of limitations, there must be a time beyond which human transactions will not be inquired into"¦ It is necessary for the peace and security of society that there should be an end of litigation"¦" [8] And time and time again, the courts have instructed the surveyor in the principles that the courts will apply to boundary cases.

Specifically, those principles are as follows:

  1. Occupational rights that have ripened into legal rights (check your state specific statutes and cases on occupation rights) will extinguish and are superior to written rights.
  2. Senior rights are superior to junior rights.
  3. Senior rights are inferior to occupational rights.
  4. The written intent of the grantor and the grantee are paramount.
  5. When an ambiguity exists in the written document (two different surveyors, two different results), the subsequent acts of the parties will determine intent, regardless of what has been written.
  6. See number one.
The answer to our ultimate question, "If not the surveyor, then who?" is that nobody is in a better position to make these determinations than the surveyor. This is because nobody is in a better position to test and resolve all six issues during the course of his work. But if he has to, the judge will put himself in the position of surveyor and make the decisions that we refuse to make. And he'll do it with "the Stanley tape measure for distance and the eyeball for direction." [9]