I’m primarily referring to the descriptive part of the deed, often called the legal description. The proof of this statement lies in the fact that too many surveyors treat the boundary problem as a math problem rather than a legal problem. The physical evidence supporting this statement is the multitude of pincushion corners where only one corner exists under legal contemplation. My explanation for this approach is that surveyors are much more comfortable with their math than they are with the law. This isn’t surprising given that we are way too focused on measurements and math than on the legal concepts behind the interpretation of written documents and the application of boundary law.
I have often been critical of “deed-stakers”--those who utilize the measurements (bearings and distances) in the deed to the exclusion of superior descriptive parts, calls and unwritten elements contained in the deed. In actuality, and in the vast majority of cases, staking the deed is exactly what needs to happen. However, due to misinterpretation or outright inability, the surveyor isn’t staking what is actually called for in the deed. I have been just as critical of those who completely ignore the deed, such as the fence-line surveyor and the bar-room-napkin-description staker. They don’t need to read or consider the client’s deed because it “would not make any difference in the survey.”
The primary inquiry for the proper interpretation of any deed is to identify the true intent of the grantor and, to a lesser extent, the grantee. The first stop in this inquiry must be the deed itself. If the deed is clear and unambiguous, both on its face (prima facie) and when an attempt is made to place it on the ground (latent), then intent resides in the deed. Staking, or more likely, refurbishing the boundary’s established location on the ground, is all that is necessary. In most cases, some form of monument is probably already in place on the ground. Don’t create conflicts that truly do not exist. De minimis non curat lex: The law does not concern itself with trifles. Only the land surveyor asks, How close is close enough?
If, on the other hand, the deed is subject to more than one interpretation, such as when the words or descriptive calls have more than one meaning, or when an attempt is made to locate the property on the ground and more than one location is possible, then true intent does not reside in the deed. In this situation, true intent resides somewhere in the extrinsic evidence (evidence outside the deed). Generally speaking, the extrinsic evidence includes testimony evidence, the subsequent acts of the parties, deeds of adjoining properties, the location of improvements and reputation in the community. The first clue that the deed is subject to more than one interpretation is the pincushion corner--multiple monuments all ostensibly representing one corner. However, we must keep in mind that many surveyors have created pincushions for no real reason other than to satisfy their math needs. In many cases, the surveyor is fixated on trivialities that the law does not consider.
In the Face of Ambiguities
When ambiguities abound, it’s time to look at the extrinsic evidence in order to find intent. Think of intent as Elvis and the deed as a building where someone has sworn he can be found. If Elvis has left the building, he is no longer in the building but somewhere else. Extrinsic evidence represents the possible locations where Elvis can be found. Maybe he’s in Vegas doing an extended show. Maybe he’s back at Graceland down in the “jungle room.” This is where our research and investigative techniques come in handy. If we are familiar with Elvis and his usual hangouts, we can shorten the process of finding him.
The most logical way to find Elvis is to ask his friends where he might be. The grantor and the grantee know him the best and can possibly give us some clues. People in Elvis’ community might have some information, as well. If Elvis comes up missing, police investigators and the courts will hear from these people first, so why shouldn’t we as expert investigators seek them out?
If these sources aren’t helpful or if they seem unreliable, we need to find out what Elvis did when he left the building. Did he simply step next door and take up residence there? If we can’t find him next door, then we need to expand our search. Maybe he made some improvements at some alternative location. Is it possible he never left the building at all but has hidden himself in some unknown chamber or passageway? After all, the building is full of ambiguities and hidden passages.
The search must continue until Elvis is found. When you file your report with your client, the question will be, Did you really find Elvis, or did you find an Elvis impersonator? If your client doubts that you really found Elvis, or if some third party who also has a vested interest in knowing where Elvis is files a missing person report (let’s just call either one of these situations a lawsuit), then the courts may well be called upon to determine who’s innocent and who’s guilty in Elvis’ disappearance. The work that you did as an expert private investigator will be scrutinized, as well. If you didn’t find Elvis but merely an impersonator, maybe you were negligent for not conducting your investigation as a reasonably prudent investigator would. After all, you put yourself out there as an expert investigator, and you couldn’t tell the difference between the real Elvis and an impersonator. You obviously don’t know Elvis.
Title Doctrines vs. Location or Establishment Doctrines
Often the question comes back to me: So you’re advocating that I recognize adverse possession has taken place and simply hold the fence? I’m not saying that at all and never have. Adverse possession is both a title doctrine and a location or establishment doctrine. Adverse possession says that a conveyance of land has taken place outside of the deed and outside of a correct and proper interpretation of the deed. The statute of frauds requires that all conveyances of land be memorialized by a written document. Adverse possession requires that a court decree be made. The court decree granting adverse possession conveys the disputed strip to the plaintiff and divests the defendant of the same. This process satisfies the statute of frauds and settles the question of title and location.
The boundary location or establishment doctrines (e.g., agreement, acquiescence, practical location, estoppel, prescription, repose, etc.) pass muster under the statute of frauds because no land is being conveyed. They do not claim that what the boundary is has changed. They simply establish the true location of what the deed already contains. The location doctrines, in the face of ambiguities, answer where on the face of the Earth the boundary is located. They work hand-in-glove with ambiguities and the rules of construction (discussed below). In many cases, they are the silent witnesses to the true intent of the original parties to the transaction and/or the subsequent acts of the original parties to the transaction (almost the same thing). When properly interpreted and applied, they speak volumes to the subject of intent.
If a land surveyor advocates that adverse possession has taken place, then the surveyor isn’t just interpreting the deed through the extrinsic evidence; the surveyor is advocating a position. In most jurisdictions, paid advocacy is the practice of law. Many surveyors who can’t recognize the difference between advocating a position for a client and rendering a well-reasoned opinion on boundaries have accused me of suggesting that surveyors should be lawyers or practice the law. Interpreting deeds, recognizing ambiguities, gathering and evaluating extrinsic evidence, knowing and applying the law as a disinterested third party to the conveyance and rendering a well-reasoned opinion on the property boundaries involved is the practice of professional land surveying. Anything less is the work of a technician or, at best, a second-class professional. I wonder why so many of us have the feeling we’re second-class professionals.
The Rules of Construction
The rules of construction are court-made rules  for interpreting ambiguous written documents when all other means have been exhausted for finding true intent. Prior to resorting to the rules of construction, the courts will hear the testimony from the parties to the transaction and from locals in the community who have knowledge concerning the history and general reputation of boundaries in their community. Without the original parties to the transaction, which is often the case encountered by the courts and the land surveyor, boundary location and establishment doctrines will be employed to testify on behalf of the original parties. Acquiescence is just such a doctrine. The courts imply through the acquiescence of the parties that an agreement has been reached as to true intent and location of the boundary line in question.
Basic propositions under American property law, in priority, are that occupied boundaries that have ripened into legal boundaries are the most superior boundaries in existence. They extinguish written title when they are fully recognized under the law. Adverse possession falls into this category but certainly is not the only way the state recognizes the occupied boundary line. Next, the senior conveyance is superior to the junior conveyance based on the proposition that no one can convey that which he/she has already conveyed. Therefore, a junior conveyance must always be read in light of the senior conveyance. Finally, the intent of the grantor, and to a lesser extent the grantee, is paramount.
The basic rules of construction, but not an exhaustive list, are that natural monuments are paramount to artificial monuments, and these are paramount to bearings, distances and acreage. Many states have taken the further step of establishing that a call for an adjoiner is the same as a call for a natural or artificial monument and/or that a call for an adjoiner automatically creates a junior/senior rights situation. A junior conveyance is always read in light of the senior; thus, overlaps and gaps do not exist in American property law. Those things that are the most certain are given the most amount of weight, and those things that are least certain are given the least amount of weight. All of the rules are for the purpose of ascertaining true intent; therefore, they are thrown out or rearranged if application produces absurd results.
In the final analysis, all of this boils down to common sense, which surveyors for the most part possess in abundance. However, when it comes to a choice between applying common sense or math, for some reason surveyors just can’t let go of the math.
The boundary problem is a legal and factual problem, not a measurement and math problem. If we were as confident in our legal and factual analysis abilities as we are in our ability to make measurements and apply math, I wouldn’t have anything else to write about. It doesn’t appear that I’ll be running out of material anytime soon.
1. Andrews v. Barton, 2008 Fla.App. LEXIS 1836, 4 (Fla.App.2008).
2. In some cases, state legislative bodies have stepped in and codified some or all of these rules.
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.