“Intent of the Parties” is one of the central concepts that a surveyor must deal with. Not only is this concept applied every time we retrace boundary lines as described in a landowner’s deed, but it also is a prominent concept in court opinions regarding adverse possession and dedication of easements, as well as those dealing with quasi easements, easement by estoppel and abandonment of easements.
While surveyors frequently equate “intent” with the “Rules of Construction,” a more comprehensive definition of intent requires we consider how the words written by individuals interact with presumptions of law. One principle crucial to an understanding of the concept of intent of the parties is that the document in question should be interpreted in light of circumstances current at the time the original document was created while keeping in mind that the phrase “current circumstances” is itself made up of an extensive list of factors, including: state and local ordinances at the time, typical land usage during that period, common law principles current within the judicial system, local customs, and idioms and local usage of language. Virginia clearly illustrates this principle:
To ascertain the intent of the parties is said to be the fundamental rule in the construction of agreements; and in such construction courts look to the language employed, the subject matter and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and in that view they are entitled to place themselves in the same situation which the parties who made the contract occupied, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described.1
On a related note, it is important to remember that if a surveyor becomes embroiled in boundary litigation, the meaning of specific words and phrases contained in a given document will be interpreted in various ways. Legal terms are defined according to accepted meanings from prior court decisions; technical or industry terms will generally be understood as they are normally used in the pertinent industry; and local idioms will be interpreted in light of their commonly understood meaning in that particular locality. This may seem counter-intuitive, because the individual who drafted the document is presumed to know the meaning of any terms used.
The courts will at times take into account the skill and experience (or lack thereof) of the individual or group responsible for drafting the document in question. In cases where the grantor and grantee drafted a deed themselves without the help of an attorney--or a parent drafted a will for heirs of a given tract--more allowance will generally be made in light of their lack of knowledge of legal terminology.
The court considers that greater latitude may be given and less attention paid to technical words in construing an instrument drawn by one not skilled in such work than would otherwise be the case. See Campbell v. Gilbert, 57 Ala. 5692
It should be emphasized that in reference to the Michigan case cited above, the discussion of a deed drafted by a notary at the request of a widow specifically referred to the lack of familiarity with legal terms when determining the correct construction, “considering the intent of the parties and the surrounding circumstances.”
Magnetic declination should certainly be considered one of the surrounding circumstances defining the intent of the parties. Many states take judicial notice of the fact that declination changes over time, and numerous opinions are on record instructing juries to take this under consideration. Thus, when a line is described in a deed as “running South 20 degrees East … “ the courts interpret this to mean “South 20 degrees East as measured by the original surveyor in 1794.” Hence, we see yet another reason that adequate research for any boundary survey is a must; if the date of the original survey of the boundary line in question is not known, the retracing surveyor may have no way to correctly determine the correct declination.
A tactic often used by attorneys when litigating boundary dispute cases involves the extreme simplification of a boundary situation, whereby all of the complex issues associated with the problem are distilled down to a simple analysis of two or three lines from a single legal description taken from one deed. This may stem from a genuine desire to avoid time-consuming explanations to a jury made up of laypeople, or it may be an attempt to steer a surveyor or other expert witness towards an apparently damaging admission. Case law is clear on this issue; courts across the country take a dim view on “cherry picking” only those words or phrases that support a given resolution. In the words of the North Carolina courts,
Moreover, it is not to be overlooked that while the significance of a deed, like that of a will, is to be gathered from its four corners, Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, the four corners are to be ascertained from the language used in the instrument … In other words, to paraphrase a certain parody, “the recipe for gathering the purport of an instrument from its four corners, begins by saying ‘first look at the corners.’” [cites omitted]3
When attempting to correctly interpret the intent of a deed description, the “Rules of Construction” (sometimes referred to as “Priority of Calls”) are often applied to determine the intent of the parties. However, occasional exceptions to the application of these priorities can be found when boundary lines were marked on the ground by the parties and specific monuments set preparatory to the execution of a deed. In such cases, even if the deed does not call for the monuments in question, the description found in the recorded deed may be found to be subordinate to those monuments set by the prospective grantor and grantee.
In such cases where it is proven by clear and convincing evidence that there was a mutually understood intent that was not adequately described in the deed or other document, the courts may apply a process known as reformation in order to properly effectuate the intent of the parties. This process may occur years after the drafting of the original description, even if the original grantee to the transaction no longer holds title.
When dealing with an adverse possession claim, intent to hold the land as one’s own has been a well-established convention since colonial times. However, scholars have discussed the relevance of intent in earlier historical periods, reaching back through the old English system to ancient Roman law:
By the Roman systems, a distinction was made between the corpus and the animus of possession; the former indicating merely the actual fact of occupation, and the latter referring to the intention (with regard to ownership) with which it was held. And prescription could not confer a complete title unless the intention of the possessor was to claim the thing as his own. This distinction is also found in the English law.4
This principle still holds true today, but a large body of current case law stipulates that the intent of the adverse possessor is proven by publicly expressed words, writings or actions, rather than by privately held opinions of which there is no outward manifestation. Some exceptions may exist in certain jurisdictions on this issue (for example, North Carolina case law from 1952 to 1985 held that the adverse possessor must have the mind of a thief), but the majority of states hold to the principle stated here by a Virginia ruling:
… a case must be presented in which the preponderance of evidence as to the character of the possession, how held, how evidenced on the ground, how regarded by the adjoining land owner, etc., etc., supplies the proof that the definite and positive intention on the part of the possessor to occupy, use and claim as his own the land up to a particular and definite line on the ground existed … Whether the positive and definite intention to claim as one’s own the land up to a particular and definite line on the ground existed, is the practical test in such cases … The collateral question whether the possessor would have claimed title, claimed the land as his own, had he believed the land involved did not belong to him, but to another, that is, had he not been mistaken as to the true boundary line called for in his chain of title, is not the proximate but an antecedent question, which is irrelevant and serves only to confuse ideas.5
Dedication of an easement may be express or implied, but in either case, it must be demonstrated in a clear and unequivocal manner. Express dedication is generally accomplished by some deed or other written instrument. However, in the absence of any statutory authority, the recordation of a subdivision plat showing lots, alleys and public squares is generally considered to be sufficient evidence of an implied dedication of those areas. More problematic are situations where a landowner invites or permits public use of the land for long periods of time but makes no oral or written dedication of the land in question. Numerous cases emphasize intent as a controlling issue, but “American Jurisprudence” provides an excellent summary:
Whenever the intent of the owner to dedicate property for public use is unequivocally manifested, the dedication, so far as the owner is concerned, is complete. Dedication is purely a question of intention, and any act of the land’s owner clearly manifesting such intention is sufficient.6
As is also the case with adverse possession, intent (when defined with respect to dedication) will be determined by public actions or statements of the grantor, not by private thoughts.
An essential element of dedication is the intent of the owner to devote his land to a public purpose, and we unhesitatingly affirm that without such an intention it is impossible that there should be a valid dedication. But the intention to which courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts. It is the intention that finds expression in conduct, and not that which is secreted in the heart of the owner, that the law regards. Acts indicate the intention, and upon the intention clearly expressed by open acts and visible conduct the public and individual citizens may act.7
Intent is no less critical when determining whether an easement has been formally abandoned. Note also the level of certainty that the court requires for abandonment is frequently described as “clear and unequivocal” or essentially free from any uncertainty (“clear and unequivocal” may generally be equated with the standard of evidence “beyond a reasonable doubt”).
Before the courts confirm the existence of an easement by estoppel, the party claiming the easement must prove to the court that a false representation of a fact or circumstance was made with the intent that the injured party act on the misrepresentation. In another variation of the application of estoppel, the courts may consider whether the conduct of the presumed grantor and grantee establishes intent sufficient to overcome a defective writing. Particularly in cases where a document is signed by both parties but some defect exists on the face of the document (such as lack of an adequate description of the land conveyed), proven intent applied in the context of estoppel may be sufficient to convince the courts to honor the apparent intent of the parties.
Surveyors have been and will continue to be the unfortunate target of criticisms from landowners regarding what they meant to say, what was meant by the deed and where the easement was supposed to go. We will be asked (sometimes forcefully) to disregard what we know of the “Rules of Construction” in order to fulfill wishful thinking on the part of the client with regards to where the boundary line is supposed to be. The hardest lesson for many clients to learn is that at the end of the day, the proximate question is not “what they meant to do,” nor is it “what they should have done,” but it is in fact, what intentions were demonstrated based on documents, statements or public actions at the time of the conveyance.
1. Talbot v. Richmond and Danville Railroad Co.; 72 Va. 685; 1879
2. Michigan Law Review, Vol. 6, No. 2 (Dec., 1907), pp. 171-172
3. Whitley v. Arenson 219 N.C. 121; 12 S.E.2d 906; 1941
4. “Color of Title”; H. Campbell Black: “The American Law Register” (1852-1891), Vol. 35, No. 7
5. Quatannens v. Tyrrell; No. 032562; Circuit court of Alexandria (Va., 2004)
6. 23 Am Jur 2d Dedication § 19
Indianapolis v. Kingsbury; 101 Ind. 200; 1884
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time 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.