We’ve covered ambiguities in this column before, but the subject bears repeating because it is absolutely essential to the proper interpretation of deeds.



Ambiguity

First, what I am talking about when I say ambiguity? Black’s defines an ambiguity as an “uncertainty in meaning, especially one that is revealed by the text or by extrinsic evidence other than direct evidence of the writer’s intention when that intention contradicts the plain meaning of the text.” An ambiguity in a deed of conveyance of real property occurs when the deed-especially the intent of the grantor-is rendered uncertain either by the actual words used in the deed (e.g., double meaning) or by extrinsic (external) evidence that renders the words in the deed uncertain.

In the context of deeds and deed interpretation, as alluded to by our definition, there are two types of ambiguities. The first is what is referred to as a “patent ambiguity.” Black’s defines a patent ambiguity as an “ambiguity that clearly appears on the face of the document.” An example of a patent ambiguity is a deed with a description of property that doesn’t close. This would probably be an ambiguity that only a surveyor could find; nevertheless, by definition this would be considered a patent ambiguity. Another very common patent ambiguity is the question as to what interest in the property was conveyed. This happens quite often in the fee-versus-easement controversy when the language in the deed leaves the grantor’s intentions uncertain.

In contrast, a latent ambiguity, as the term implies, remains dormant until some external factors render intent ambiguous-a plain reading of the deed reveals no ambiguities. The courts on many occasions have pointed to surveying results as the quintessential example of-or even the very definition of-a latent ambiguity.

The intent may not be clear from the face of the deed when the deed contains a latent ambiguity which is created when … in applying the description to the ground, facts extrinsic to the document controvert or in some way render unclear the deed’s apparently unambiguous terms.{1}

An uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matter outside the writing when an attempt is made to apply the language to the ground is known as a “latent ambiguity.”{2}

This is a situation that we, as land surveyors, are very familiar with. The multiple interpretations that surveyors apply to the descriptions of property are manifest in the multiple monuments we leave behind-all, ostensibly, representing one corner location.

There Will Always Be Conflicts

One of the realities of land surveying is that there will always be conflicts between the written descriptions of land as found in the deed and the details we find on the ground. In other words, we can find latent ambiguities every time we conduct a survey of property. This doesn’t mean, however, that every deed contains latent ambiguities. The courts aren’t nearly as concerned with minor inconsistencies as we land surveyors are. The question that is paramount for many surveyors is: How close is close enough? However, in 10 years of earnest and diligent research in the area of property law, land surveying and boundaries, I have never seen a court ask this question.

The purpose of a description of land contained in a deed of conveyance being to identify the subject matter of the grant, a deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. Any description by which a parcel of property may be identified by a competent surveyor with reasonable certainty is sufficient [emphasis added].{3}

We would do well to remember the difference between precision and accuracy. With the equipment we have at our disposal these days, we can make very precise measurements over very long distances. We can achieve closure ratios that were inconceivable just a few years ago. Yet precision rarely, if ever, has anything to do with boundaries. Your one foot in 100,000-very precise closure-is totally meaningless in the context of boundary surveying if you are not even on the right piece of property. In contrast, being on the correct boundaries, having the true corner positions and properly interpreting the deed in light of the surrounding circumstances will render the survey 100-percent accurate regardless of measurement precision. The courts are interested in accuracy, not precision. We focus way too much on the latter and not nearly enough on the former.

As many courts and commentators have put it, the deed is simply a guide to accurately finding the land on the ground.

The issue here is not of a disputed boundary. It is what the deed means. It is an application of the deed to the land, and not of the land to the deed [emphasis added]. While the object of the inquiry is to determine where the boundary is, the inquiry itself is what the requirements of the deed are rather than what the situation of the land is. … There is no difficulty in locating and establishing the line when it is ascertained how the deed requires it to be run. The boundary is doubtful only because the meaning of the language of the deed is doubtful, and the problem is not how or where to establish bounds answering the calls of the deed but to say what the calls of the deed are. … That the evidence would be admissible to show where bounds are is not a reason to make it competent to show where they should be.{4}

In addition, the courts look to the land surveyor to read and interpret the deed and identify the property on the ground. “It is elementary that a description in a deed is intended merely to furnish the means of identifying the parcel conveyed. Otherwise put, a description of a particular parcel is sufficient if a competent surveyor can locate the land on the ground.”{5} Correctly viewed, our job is to work out the minor problems and inconsistencies. “[S]urveyors are hired for the very purpose of exercising their professional judgment about boundary disputes and inconsistencies in deeds.”{6} Our job is not to create ambiguities that do not exist.

Nobody Knows What the Judge Will Do

Over the course of my surveying career, I have heard other surveyors say: “Only the judge can determine the boundary line, and nobody knows what the judge will do.” Although this statement contains tidbits of truth, it is, on the whole, an incorrect statement. If a boundary controversy does go to court, the judge will determine the boundary between the coterminous landowners. However, a boundary line can be determined by other means. It is true that you can get almost any ruling under the sun in any given trial court. But in the vast majority of the cases, once the case goes up on appeal, the correct law will be applied. This is the law we read about in the court opinions because trial court rulings (if they are even written) are seldom, if ever, recorded in the reporters.

The interpretation of all written documents (deeds, contracts, wills, affidavits, etc.) is the same body law in all jurisdictions. The courts climb the same flight of steps in the halls of American jurisprudence in search of intent. Failing to find intent within the written document or in the extrinsic evidence, they turn to their “rules of construction”-the court’s “playbook” for the interpretation of written documents. To say that nobody knows what the judge is going to do may be correct in the sense that any given trial judge may not know or may even ignore the law and give a bad ruling in court. However, to say this in the context that we can’t know what the law is relative to the interpretation of deeds is not true because it is repeated consistently from Maine to California and Washington to Florida. The only reason we wouldn’t know what the judge is going to do is if we haven’t been paying attention to what they have been doing.

We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained.{7}

When surveying activity reveals a latent ambiguity in the description of the property as contained in the deed, then the deed no longer contains the true intent of the parties. This happens, by definition, when more than one location of the property or more than one configuration of the property can be ascertained from the evidence found in the field and from evidence found in other documents, especially the deeds of adjoiners. For example, if the deed of an adjoiner creates an apparent overlap, this will render the client’s description of property ambiguous as to configuration. Similarly, if a clear and unambiguous description is rendered doubtful due to conflicting monumentation that affords more than one interpretation of the location of the property on the ground, a latent ambiguity has been revealed.

In these cases, the courts leave the written document in search of intent. They find it in “the factual situation and the circumstances existing at the time the instrument was created … [and] the subsequent acts of the parties.”8 These are the details the surveyor should already have discovered as a result of his or her research and evidence-gathering activities. This is when the surveyor needs to give greater weight to extrinsic factors instead of a worthless description of property contained in the client’s deed.

To make the subject of ambiguities more palatable, think of it this way: In essence, you are still following and staking the deed. It’s just that the property description has been rewritten to conform to the intent of the parties as found in the extrinsic evidence. Your job is to decipher the new description, not from the written words but from the circumstances existing at the time of the conveyance and the subsequent acts of the parties. Intent is still king, but ambiguity is the key to the kingdom.



References

1 - Perkins v. Graves, 1993 Me.Super. LEXIS 68, 3 (Me.Super. 1993).

2 - Gilbert v. Geiger, 2008 Wisc.App. LEXIS 21, 11 (Wisc.App. 2008).

3 - Wooded Shores v. Mathews, 411 N.E.2d 1206, 1208 (Ill.App. 1980).

4 - Smart v Huckins, 134 A. 520, 522, 523 (N.H. 1926).

5 - Podlesak v. Wesley, 849 S.W.2d. 728, 732 (Mo.App. 1993).

6 - Lawson v. Winemiller, 1995 Ohio App. LEXIS 2043, 16 (OhioApp. 1993).

7 - Theriault v. Murray, 588 A.2d 720, 721, 722 (Me. 1991).

8 - Brashier v. Burkett, 350 So.2d 309, 311 (Ala. 1977).

 

Author’s note: I have had many requests for a more in-depth study of the law and the legal principles that affect our everyday practice. In August, I launched “The Lucas Letter,” a legal newsletter that will be the vehicle for that study. I invite you to join us at www.jnlucaspls.com/TheLucasLetter.html.

 

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.


This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.