Intent

[PE_PLS]

I am working on a project where a local jurisdiction vacated a portion of ROW in exchange for the adjacent landowner dedicating a portion of land to the local jurisdiction. Legal descriptions were drawn up for the land being exchanged. Shortly after this occured (within a couple months) a ROS was filed by the same company that wrote the legal descriptions for the land being exchanged. The legal descriptions do not reference the ROS, though the ROS makes reference to the recording information of the legal descriptions. It appears that the intent of the ROS was to show the land being exchanged.

Here's the problem: The legal descriptions for the deeds do not match the ROS that was done. The legal descriptions have serious flaws. Without the ROS as evidence just reading the legal descriptions of the land to be transfered results in a SUBSTANTIALLY different solution than what is shown on the ROS.

Lines of occupation and other physical evidence support that which is shown on the ROS.

My question: Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?

[Dave Karoly, PLS]

I would say so. Physical evidence is always better than written evidence. In this case you have a Record of Survey which supports the physical situation on the ground.

However, it would be in the best interests of you, the Agency and the Property owners to have the Agency and the Property owners reform the Deeds if at all possible.

[E_Page]

Was it the parties to the exchange that hired the company to do the survey? If so, and the RS references the deeds and purports to follow them, then it seems that the parties to the original agreement put their agreement into effect per the results of the RS.

Clear physical evidence of a survey commissioned by the original parties to the deeds and documented to have been for the purpose of applying the descriptions of the deeds to the ground is pretty darn hard to discount as not representing their true intent. Unless you have clear and convincing evidence that the survey was performed fraudulently, it controls over conflicting elements of the description.

[Anthony Maffia]

It wasn't done fraudulently, but I think he blew it.

I've looked at this, and I think he surveyed one side of a intersection, pushed his CL through and onto the next block, offset it and wrote the deeds for an enlarged intersection. However, there is a disjoint in the CL which makes that impossible - the R/W had to be surveyed from the other direction, which he did not do. The result is a 9' bust.

[DWoolley]

Messrs Maffia and Page:

Constructive fraud defined:

Constructive fraud is defined as any act, omission, or concealment involving a breach of a legal or equitable duty, trust, or confidence that results in damage to another even if the conduct is not otherwise fraudulent. CEB, California Real Property Remedies and Damages 1 (2nd ed. 2005) § 3.27, pp. 128-131. See also California Civil Code § 1573.

Mix in some slander of title and marketable title claims for good measure.

Marketable title is defined as:

“such a title free from reasonable doubt, and such that a reasonably prudent person, with full knowledge of the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept. Title must be so far free from defects as to enable the holder, not only to retain the land, but possess it in peace, and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will arise to disturb its market value.” Lick Mill Creek Apartments v. Chicago Title Insur. Co. (1991) 231 Cal. App. 3d 1654, 1660-1661 (citing Mertens v. Berendsen (1931) 213 Cal. 111, 112).

How can you definitively say there wasn’t fraud involved? What is your frame of reference?

In Closing:

I find Evan Page’s comments disagreeable for many reasons. The record of survey disagrees with the contract and presumably is not referenced in the deed (contract) which allows for two separate locations, leaving the next surveyor and the public with a guessing game of liability. There is a colorable marketable title claim, colorable slander of title claim and a colorable constructive fraud claims for each effected owner.

I hope someone takes a few minutes to write the surveyor and ask him to fix it properly. If the surveyor is unresponsive or appears to be incompetent, isn’t it the duty of another professional to file a detailed complaint with the Board?

I purposely stayed away from this thread; Mr. Maffia’s comments were irresistible or maybe just irritable.

DWoolley

[Anthony Maffia]

The R/S was filed in 1971. This is a difficult intersection to survey, and other maps only come at it from one side or another, but never cross it. I don't imagine any ill intent on the part of the surveyor.

[Dave Karoly, PLS]

I would consider it 1) original monuments and 2) repose.

No, original monuments do not absolutely have to be mentioned in the original Deed descriptions; it's nice if they were but not absolutely necessary.

Or you can go with the Nuclear Option, Fraud and blow the world up but I don't recommend it.

[Double_Proportion]

I agree and disagree with DWoolley at the same time; the principles posted are formidable and irrefutable; however, it would appear more a case of an incompetent surveyor trying to cover his….Does this constitute fraud or negligence, I don’t practice law and cannot answer that. My guess would be negligence.

Anthony’s comment alludes to him having personal knowledge of the project area; I have to respect that he has a strong input on this topic and cannot refute what he is saying. (I would love to review what you have seen for my own growth)

As to intent or frame or reference, I like to take things back to common sense, it’s what my family taught me and has always worked. In this situation the idealism would be, “layman hires professional surveyor to transcribe legal description, layman hires professional surveyor to file map showing description”, it's screwed up.

I apologize in advance; well not so advance for the condescending language of the last paragraph (and this one) but it would appear that if us as surveyors from the begin with learned to identify with our clients’ needs a bit more we wouldn’t be on the chopping block of professions.
Long story short, the RS and the description are all part of the intent of the parties, as the preparing surveyor was engaged for the work he did, it would appear you have some investigation to do.
This is why I love and hate surveying. I can’t think of a more fulfilling profession.

OK time for the backlash!

[JBStahl]

Originally Posted by PE_PLS

Legal descriptions were drawn up for the land being exchanged. Shortly after this occurred (within a couple months) a ROS was filed by the same company that wrote the legal descriptions for the land being exchanged. The legal descriptions do not reference the ROS, though the ROS makes reference to the recording information of the legal descriptions. It appears that the intent of the ROS was to show the land being exchanged.

You are looking at what is considered a "contemporaneous" document. The ROS is 1) prepared by the same authors as the descriptions, 2) prepared at or near the time of the original conveyance, and 3) makes specific reference to the recorded document. All are evidence of contemporaneous preparation which means they are part of the same transaction and can be considered together as a whole.

Originally Posted by PE_PLS

Here's the problem: The legal descriptions for the deeds do not match the ROS that was done. The legal descriptions have serious flaws. Without the ROS as evidence just reading the legal descriptions of the land to be transferred results in a SUBSTANTIALLY different solution than what is shown on the ROS.

If the descriptions are "flawed" (ambiguous), then extrinsic evidence can be sought to resolve the ambiguities. This principle allows the evidence depicted in the ROS to be considered even if the ROS was not contemporaneous. The doctrine of practical construction views the evidence of what the parties have done subsequent to the transaction when they presumptively knew what the intent of the transaction was, followed by their mutual acceptance of the results of their actions, are better evidence of what was intended than the ambiguous words of the documents. Their actions explain their words.

Originally Posted by PE_PLS

Lines of occupation and other physical evidence support that which is shown on the ROS.

Physical evidence is more meaningful than words on paper (one of the key reasons that monuments control). You've got evidence that the ROS is more likely to be correct than the written words which contain ambiguities. The physical evidence can be used to corroborate or lend more credence to the ROS and to resolve the ambiguities.

Originally Posted by PE_PLS

My question: Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?

Absolutely, YES. You're dealing with conflicting evidence. You've got ambiguity in the documents which opens the document to extrinsic evidence used to explain the ambiguity. You turn to the ROS which is not only contemporaneous, but resolves the ambiguity. The ROS better indicates the intent of the parties.

Legal principles are designed to bring resolution to conflicting evidence. When they are properly understood and applied they will bring resolution.

JBS

[E_Page]

Thanks for the visit and response John. Saves me from having to reply directly to Woolley's post.

I'm still trying to figure out what statement I made that he finds offensive (that's what disagreeable means in that context doesn't it?).

[DWoolley]

Stearns v. Title Ins. & Trust Co., 18 Cal. App. 3d 162 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1971

Basis of the case and selected text:

"Essentially this is a boundary dispute. Plaintiff is the owner of Government Lot 12, ... and defendant is the owner of the portion of Government Lot 11 lying Southwest of the Temescal Freeway. The defendant's property lies immediately West of plaintiff's property. The conflict is based on two differing versions of where the common line between these two government lots is located. Plaintiff bases its location of the government lots on the original United States Government Survey and the survey of A.C. Fulmor, on record in Book 5, Page 73, Records of Survey of Riverside County, and defendant's line is based on the original United States Government Survey and a survey of C. Gulley in Book 6, Page 3, Records of Survey."

“The question is, therefore, whether the discrepancy or conflict in the common boundary line between Lots 11 and 12 was shown or disclosed by the "public records," as that term is defined by the policy.”

“…these records when compared disclosed the discrepancy or conflict in the boundary line between Lots 11 and 12;[3] and that, therefore, such discrepancy or conflict 169*169 was shown or disclosed by the "public records" within the meaning of the policy.”

"[T]he mere fact that an instrument has been recorded does not give constructive notice thereof unless there is some statute authorizing or permitting such instrument to be placed of record and at the same time making the effect of such recording constructive notice." (Dreifus v. Marx, 40 Cal. App.2d 461, 465-466 [104 P.2d 1080].) Numerous portions of the recording statutes specify the effect of constructive notice. (E.g., Civ. Code, §§ 1213, 1215 and 1219; Gov. Code, § 27282.) (3b, 4b) Private records of survey such as the Gully and Fulmor surveys are recorded, however, pursuant to Business and Professions Code section 8762 et seq. These sections contain no provision that such recordation shall impart constructive notice. The recordation of United States Government Surveys by the Department of Interior is provided for by section 751 of title 43 of the United States Code. The statute, however, does not provide for constructive notice.”

“The suggestion made at oral argument that a record of survey is a "conveyance" as that term is used in Civil Code section 1213, which provides for constructive notice, is not meritorious. The term "conveyance" is defined in Civil Code section 1215 as embracing "every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or encumbered, or by which the title to any real property may be affected, except wills." A record of survey is not an "instrument" within the meaning of Civil Code section 1215. (Cf. Hoag v. Howard, 55 Cal. 564, 566.) (7) Furthermore, to impart constructive notice a "conveyance" must be within the chain of title. (Bothin v. California Title Ins. Co., 153 Cal. 718, 724 [96 P. 500]; Ogden's Cal. Real Property Law (1956) p. 236.)”

For the forum’s consideration:

Sterns is still current case law in California. The conveyance documents are the contracts (title) which is evidence of ownership. The record of survey may be contrary evidence of ownership (at best the RS could be evidence of title flaws, but it is not title). Based on the original post, I understand the deeds can be located on the ground, but the record of survey located the same deeds differently on the ground (understanding it was the same surveyor). Why didn't the original surveyor fix his "flawed" documents to reflect his "intent". Again, the record of survey shows ownership is different than title, not an entirely uncommon situation. Ownership and title are not coincident by virtue of convenience (or a surveyor’s voodoo or best guess at the intent).

I think the clever surveyor would recognize the opportunity to provide a remedy to this problem (and others like it) by involving the owners, lenders and the title companies and fixing title to agree with ownership.

Why wouldn’t a surveyor opt for a professional legal remedy? Read the Sterns case, does anyone think a surveyor can make a determination as to “intent” and everything henceforth is binding for all parties? Does a surveyor have this authority in California or any other state?

I am a proponent of binding remedies and removing the survey witchdoctor from making a nonbinding best guess and leaving the parties with a false sense of the service provided.

Best,
DWoolley

PS Mr. Karoly I have enjoyed your recent input on this thread and the other one as well. Evan, I am not sure if I can be offended by the words of another. I have enjoyed the discussion of “intent” for the first 30 volumes. Disagreeable? Contrary? Waspish? Not really, professionally challenging resulting in my betterment. Is anything unreferenced worth saying here? Double Proportion, still waiting for the "condescending language", next time let it rip.

PSS Welcome Mr. John Stahl, looking forward to your perspectives.

[PE_PLS]

The case I am working on is from the early 1970's, the surveyor who performed this work has long since retired. It is apparent to me that the flawed legal descriptions are based upon the original surveyor not knowing the location of the Right of Way where the survey was performed. This is a situation where a single road has a jog in the right of way by several feet. Because the surveyor did not recognize the jog in the right of way it causes a major bust in the deeds. It is apparent to me that the ROS shows the intent of the parties. It matches the legal descriptions in the deeds, and shows monumentation that can be readily retraced. Unfortunately because the surveyor did not recognize the actual location of the Right of Way, it causes a major bust in the deeds.

Yes, the deeds can be constructed on their face without the ROS, but with substantially different results than that which is shown on the ROS.

[bryanmundia]

Originally Posted by PE_PLS

The case I am working on is from the early 1970's, the surveyor who performed this work has long since retired. It is apparent to me that the flawed legal descriptions are based upon the original surveyor not knowing the location of the Right of Way where the survey was performed. This is a situation where a single road has a jog in the right of way by several feet. Because the surveyor did not recognize the jog in the right of way it causes a major bust in the deeds. It is apparent to me that the ROS shows the intent of the parties. It matches the legal descriptions in the deeds, and shows monumentation that can be readily retraced. Unfortunately because the surveyor did not recognize the actual location of the Right of Way, it causes a major bust in the deeds.

Yes, the deeds can be constructed on their face without the ROS, but with substantially different results than that which is shown on the ROS.

As by what you just stated you really don't have a problem with the exception of a Record of Survey which does not match the deeds.

Maybe I misread but you have stated that both the contract (deed) for the properties can be completed in whole. With that, there is no ambiguity in the deeds, the ambiguity lies in the record of survey, a document which cannot be construed as a contract (as far as I know, maybe Dave might know more).

I think what you need to do is sit back and think about what your actions may do. Understand, that although we do rely on case law to make decisions regarding boundary determination, it does not constitute a reason to determine intent, that is left to the decision of the courts.

I am ready for the backlash from those believers of "surveyors determine intent" only because I know that we as professionals really cannot when contracts are whole and unambiguous.

[DWoolley]

It appears to be a latent ambiguity in the deeds which may allow the record of survey to be introduced in the rewrite of the deeds, but the record of survey’s existence does not change title. The remedies (making title and ownership coincident) are available and should be appealing to the owners. The owners, once notified, have disclosure issues on any future sales which should provide additional motivation to pursue remedies. It wouldn’t be expected to have adverse claimants based on the facts provided.

Does the record of survey address the material discrepancy between the deeds and the establishment on the ground? If so, how? If not, why?

Although no longer pertinent to the instant conversation, does anyone think the 1971 surveyor was negligent? Incompetent? Neither? Both?

Move it forward, suppose it was 2001 by a current surveyor, is this method of practice acceptable? Tolerable? Why or why not?

As detailed in other threads, some of the most egregious surveying mistakes involve surveyors “fixing” boundaries by their “opinion” which includes determining the “intent” outside of the plain language of the contract (which on its face has no ambiguity) and (negligently) not bothering to modify the contracts formally.

DWoolley

[E_Page]

A contract or a deed must, not may, not should, but must be read in light of the circumstances surrounding it. If the parties put it into effect without conflict between them, although it does not follow the exact technical meaning of the terms of the contract (or deed), the mutual acts demonstrate the actual intent.

If you read a contract and refuse to do so in light of the facts surrounding the agreement and the circumstances existing at or near the time of the contract (or deed), if you ignore the mutual acts of the parties to the contract (or deed) by which they put the agreement to effect, you are negligent, and willfully so in your surveying.

If one studies boundary law with an intent to learn the common threads of logic behind it, one finds that most of it is based upon common sense principles that a layman can grasp. That is because it is not only surveyors who need to have an understanding of where their land boundaries are. Laymen need our expertise to map newly created boundaries so that others can find them in the future. They need our expertise to make visible boundaries that the marks for which have been covered over by nature or the works of men. But once those boundaries are marked by a person the State has granted a license to, those laymen landowners should be able to rely on those marks.

If the laymen landowners each affected by the marks set by the surveyor are satisfied that the marks adequately and properly delineate what those laymen who were party to the agreement (deed) intended to have laid out upon the gound, the survey becomes the manifestation of the agreement, and the reliance by the landowners on those marks with regard to the activities of land ownership the tangible and real evidence of the true intent of the contract (or deed).


"Surveyors can't determine intent."

"Only the courts, a judge can determine intent."

"Surveyors who determine intent will lose their license and incur hundreds of thousands in liability."


BULL PUCKEY!!!!

Surveyors must determine intent anytime they survey a boundary. If you say that's not so, you don't know the first thing about boundary surveying and quite literally have no idea what your doing even as you're doing it. Like the man who looks in the mirror and doesn't recognize his own face.

It is impossible to survey a boundary without making a determination what the intent reflected by each phrase of a description is. If you decide that 50' must be 50.00', not a hundredth more or less, you have decided that the intent of the original parties was that the distance override other particulars and evidence to the contrary. If you decide to hold monuments marking the subdivision lot, even if the map calls for a 50' lot and you measured 50.12' between the monuments, you have determined that the intent of the original parties (or subdivider) was that the actual survey as evidenced by the monuments control over other particulars.

YOU... CANNOT... SURVEY... ANY... BOUNDARY... WITHOUT... MAKING... A... DETERMINATION... OF... THE... INTENT... OF... THE... PARTIES... WHO... CREATED... THE... BOUNDARIES!

There are no exceptions, only degrees of difficulty in discerning what the intent was.

Where surveyors get in trouble is when they make incorrect determinations of the intent and do so with inadequate investigation and/or improper analysis. I don't believe that you will find a case where a surveyor has made a proper determination of the intent of the original parties, even if the description originated in the distant past and is fraught with latent ambiguities, where the court came to the same boundary conclusions as the surveyor and yet chastised him for going beyond the practice of surveying in that he determined intent.

Doing so would defy common sense. The courts rely on and have conferred expert status on surveyors so that they can offer testimony beyond that of a precipient witness. They can testify not only to mere fact, but as to their opinions regarding facts, and in boundary cases, they may opine as to the ultimate issue, the boundary location. The courts recognize surveyors as the only profession qualified to properly investigate and analyze the facts to determine where the boundary is. The law gives us guidance to weigh conflicting evidence to identify what the original boundary is so that we can relocate the original boundary. As long as we do not make a determination that the "what" has changed since it was originally established, we are making use of the law consistent with our authority. The courts rely in part on this expertise to help them sort the facts into proper context and review our application of law.

If we use the law to guide us to the original "what" of the boundary in order to determine the "where" of it, we are helping the courts and helping the landowners in recognizing the true original boundary. If we misuse the law and make a determination that the "what" has changed, we're headed for trouble because we are exceeding our authority and potentially misleading the landowners and the court.


Courts only have the authority to determine intent when the parties to the agreement or their successors in interest cannot agree as to what the agreement means. Far to often, the parties are living in agreement until some "expert" to who may be well versed in the letter of the law but to whom the underlying thread of logic and common sense is a mystery comes along and tells the parties that what they mutually intended and acted on isn't really what they intended to have acted on. One of the parties sees that they stand to gain if they alter their understanding to what the "expert" determined they really meant. If the parties never disagree as to what the intent is or has been, the courts are never granted authority to do so because there is no dispute to settle.




If determining intent, or more accurately stated DISCERNING the intent of the original parties (if you don't understand the distinction, look up "determine" and "discern") is contrary to the practice of surveying, then BPELSG is going to have a lot of work to do by way of revoking licenses because there are a lot of surveyors determining intent, including those who post here insisting that we aren't allowed to do so.

They should probably start with me because I unapologetically will continue to endeavor to discern the actual intent of the original parties in order to find the original boundary every time. They would also need to rewrite the PLSA to remove boundary surveying from §8726 and replace it with a provision that limits the practice to measuring between existing monuments and precisely laying out the distances recited in deed descriptions. All those landowners with descriptions that don't cite bearings and distances numerically will be toatally out of luck because there will be no profession authorized or licensed to determine what there deeds mean and where their boundaries are.

[E_Page]

Addressing specifically how I think the discrepancies between the deeds and the survey should be addressed where the reliance of the parties on the survey is the most definite and reliable indication of the true intent:

First, during your investigation, once you've discovered the discrepancies, you find out from the landowners what they know of surveys in the area, if they understand the monuments they've indicated they are aware of to mean anything in particular... basically find out what their understandings of the boundaries are without asking in such a way that might guide them to a particular answer. This is info you need to make the determination. If what they've told you comports with the physical evidence, that's pretty good corroboration.

Once you've discerned that the RS more correctly reflects the intent of the parties than does the description in the deed, you need to inform them of the discrepancies, and if they are significant as seems to be the case in Dylan's situation, advise them that it would be in their best interests to correct the record to comport with the facts on the ground (or in other situations, perhaps alter what they have going on the ground to comport with the deed record). Explain to them why it's important, giving examples of the problems that may occur due to the conflicting record and the costs and inconvenience those problems can result in.

Ultimately, whether or not they correct the record and how they choose to go about doing it is their decision. You can only advise, you cannot force them to take the action you believe is in their best interest.

If they choose not to correct the record, that does not alleviate for you the responsibility of correctly identifying the original boundary. You have no authority to change the boundary to what it "correctly" should have been. Pretty much ALL of the well recognized texts from Skelton, Clark, and Mulford, up through the current versions of Brown (Robillard) and Wilson's "Forensic Procedures" are absolutely consistent in clearly stating that same principle.

If the preponderance of the evidence shows that the boundaries were originally established by a survey and the landowners took possession and engaged in the acts of land ownership in reliance upon that survey, but you decide that you must adhere to the letter of the deed description even though contrary to all survey and other physical evidence, you are going beyond your authority and changing the definition of "what" the original boundary is from lines long established and relied upon to lines and corners which in fact never existed prior to your monumenting and mapping of them.

The courts won't overlook or discount a survey for relatively minor technical defficiencies. They may do so where gross error is involved. Gross error not being defined by a magnitude resulting from poor measurement, but by identifying and following the wrong line (should have followed the right of way according to a road alignment created in 1935 but instead followed the proposed right of way alignment from plans dated 1965), monument was shown by reference to the original notes to have been set erroneously because the surveyor was on or backsighting the wrong point altogether, resulting in an absurd boundary configuration, monuments of the survey were moved from their original positions, or similar issues.

Whether or not the landowners decide to take the corrective action you advise, the original boundary is what it is. You can't revert back to a deed description the evidence shows to contain a description that is faulty due to latent ambiguities (those that cannot be seen until the terms of the agreement are put into effect - the boundaries described are placed on or comared to conditions on the ground). Since you've made representations regarding the boundary location by way of advising the landowners to take corrective action, you are obligated to file an RS.

The RS is your report, in picture and word form of your boundary investigation and your opinions regarding the facts you have uncovered in that investigation. All relevant evidence, whether it supports your opinion or contradicts it must be shown. That depiction demonstrates material discrepancies and/or other inconsistencies in map form.

Beyond that, I believe that the surveyor should provide some discussion of the discrepancy and his/her basis for decisions made in determining boundary locations... why certain evidence was held over other conflicting evidence, why that held was condidered more reliable.

If the landowners followed your advice and rectified the deed records, mention of the corrective action and reference to the new record obviously needs to be made. Of course the discrepancies would no longer exist, but mention of such discrepancies should be made as the reason for the corrective action to the deed record.

If they declined your advice and the discrepancies remain, a more complete discussion of the nature of the discrepancies is in order along with mention that advice was given relative to corrective action and declined as of the date of preparation of the RS.

You have to do what your legally obligated to do. You can only do what your authorized to do in terms of decisions that affect boundary and title from the time of your survey forward. You have to practice per the guidance of existing law.


Sterns was a case about the title companies' duty, or lack of duty to include reference to RSs in their title reports and policies. In essence, it clarified that an RS does not constitute constructive notice on it's own. That makes sense because no title is conveyed or necessarily defined by the survey.

But reference to Sterns in the context of this discussion is misguided. It is not, and pretty much never is the case that a survey depicted on a RS becomes controlling simply because it was perfomed, monumented and mapped. It gains controlling status because of the representation and recognition of, and reliance on it as properly marking the intended boundaries by the parties to those boundaries.

[bryanmundia]

Evan,

First, I think it is possible to make a boundary determination without determining intent. For instance, what about an evidence based boundary? I go survey Lot A of Tract 1234. The previous surveyor set durable monuments at all of the corners. I find all four corners set by the original surveyor. My survey is done, I do not need to determine intent. The monuments hold over everything else pursuant to Section 2077 of the California Code of Civil Procedures which states:

"When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount." (Emphasis Added)

This is true no matter what I measure between said found original monuments. I could be 10' off either long or short.

With that being said do I leave it at that? Well no, I also survey the location of dividing walls or fences, buildings, etc. I do this only to decide if there is a possible encroachment, something that might become a possible title claim. I show these improvements on my record of survey to show what I found and to provide notice as to any potential problems.

If I find an encroachment or something which may cause a problem between home owners, I explain the situation and offer remedies which I as a surveyor can perform (i.e. lot line adjustment, encroachment agreement, easement agreement, license, etc.). I do not however decide that because I measured 10' long and there is a 10' encroachment of course the original surveyor intended for the line to be where the wall is.

Instead, if I cannot help the land owners come to a decision, I employ the help of other professionals (i.e. title company, lawyers, etc.) who specialize in determining the intent of ownership.

Second, I feel that a majority of your opinion on intent resides in the fact that you as a professional have a higher understanding of what a surveyor intended to do because you are a professional surveyor as yourself.

I think that you might want to step back and look through the haze in the mirror. Your professional decisions as a surveyor can only be 100% determined by another surveyor or party down the road if those decisions are clearly written down whether it be by recorded survey, document, etc. You cannot 100% determine what anyone decided to do unless you ask them yourself. I think this is another reason, as a surveyor, we have the ability to take an oath.

I ask as someone who wishes to learn where I can find an article/court decision/ag decision, etc. which gives me the power as a professional surveyor to determine intent when contracts (deeds) are whole? Please provide a source.

[bryanmundia]

Dylan,

To answer your question. If the deeds can be plotted without ambiguities then there really is no issue. It can be just as much an error on the record of survey as it could be in the deeds.

I think what you should do is possibly sit down with both owners and come to a resolution which you as a surveyor can perform. I would not try to determine the intent of either document.

I find it very easy to talk your way into a bad situation but very difficult to talk your way out.

[dmi]

Bryan, Look to Brown for your answer. Why do you suppose he mentions the fact the intentions of the parties are PARAMOUNT. Why does he go on for pages and pages about the subject? Do you suppose a surveyor's opinion amounts to a hill of beans when it is is contrary to the intent of the parties and actually serves to defeat the intent of the parties?

There are unending horror stories re-pleat with mountains of case law of surveyors who were negligent or incompetent who tried to hide in the cloak of their poor understanding of intent. This does not mean they we ought not concern ourselves with intent. On the contrary, a careful reading of Brown shows us that our duty is to give full effect to the intent of the parties.

How can you insure that your professional opinion is not contrary to the intent of the parties, if you have made no effort to ascertain what that intent IS nor collected enough evidence to arrive at an opinion that is more that mere speculation?

The physical evidence either supports the written evidence or it does not. How significant this conflict is and what is done about it is what separates the professional from the technical.

[bryanmundia]

Dane,

I will review Brown's tomorrow and provide an answer as to my thoughts. However, with that said, I still don't understand how if you have all the pieces of the puzzle, you feel the need to try and determine intent?

The contracts are whole, there is no need for you to read any further into things. I was once told that everything is black and white but it is the white part that really gets you in trouble.

Understand, I do have a concept of the fact that if the contracts are ambiguous, then of course as stated in numerous, widely accepted and used texts, extrinsic evidence should be collect.

The following quote was taken from a paper titled “What Should be the Education for Land Surveying?” by Curtis M. Brown (1957).

"The property surveyor is given a deed and told to mark it on the ground. He makes measurements, observations and sets markers in accordance with his
opinion, and he charges a fee. The only correct location for a boundary line is in the position that a court of competent jurisdiction will uphold. This in setting his property marks the surveyor is giving his opinion of where he thinks the court will uphold him. It takes superior knowledge to know where and how to set property lines. And if the surveyor fails to set his boundaries in that position that a reasonably prudent surveyor would, he must pay damages. He is a professional man."

With that being said, do I think that sometimes we as surveyors and as professionals need to make a decision regarding where a boundary line is? Of course, but what I do not agree with is determining intent when the contracts are whole. If this is the case there is no need for a court decision. Those that "close" gaps because they know what originally was intended are those who worry me and are those who I do not understand.

I cannot remember where I have read it before but I vaguely remember a quote which states in summary that a map is only a guide as to where monuments were set and/or found. So when someone looks at deeds and and map as combined documents I feel they are using their available resources incorrectly. Instead, each document should be taken as a separate item, one which stands on its own.

Lastly I have come to another talking point. If the contracts are whole, then doesn't Principal 3 from Brown's prevail? It states:

"When establishing the boundaries of a property in accordance with a written deed, the boundaries must be established in accordance with the written terms of the deed. Parol evidence may not be taken to determine the terms of a deed, but may be used only to explain ambiguous terms of a deed."

To me this means that you can collect all the evidence you want regarding a property but if the contract is whole and unambiguous, it cannot even be presented in your decision as to boundary line location.

Maybe I am wrong, maybe I am somewhat right, all I know is that I would like to learn. Provide me a case/book/etc. which can provide me with a reason to go all willy nilly and determine what I think someone was trying to do before me.

[dmi]

".... the position that a court of competent jurisdiction will uphold." Where is that position ? Is that position at odds with the intent of the deed? A deed is a contract and the court is going to enforce and give full effect to that agreement where possible.

I am not debating gaps or any other topic. I am just curious how you propose to execute a proper boundary survey when you give no regard to what is contained within the four corners of the deed.

What evidence are you going to consider and collect and WHY, if it is not in service of giving full effect to the intent of the parties?

If you are not concerned with the rights of the property owner, then what are you concerned with?

I am not going to dig up research since it is readily found in Brown.

[E_Page]

Bryan,

Do some reading about Latent Ambiguities (or Latent Defects) with regard to deeds.

The definition is basically that there is no apparent discrepancy or lack of clarity on the face of the document, but those things become apparent when the terms of the agreement are attempted to be put into effect.

In a contract for goods, the terms of the agreement may be "The sum of $10000 to be paid by Party A to Party B upon delivery of new Acme pizza oven to 123 Third Street, San Somewhereorother, CA."

The intent is quite clear: A is purchasing an oven from B, who is to deliver it to the specified address and then be paid a specific sum. No trouble interpreting the plain meaning of those words and the idea they express.

But what if 123 Third Street is a vacant lot and there is no one at the vacant lot to receive the oven? You would not be aware of that from the information in the agreement. It is complete and clear within its four corners. But carrying out the agreement is problematic in that the specified address does not appear to be correct.

It should seem obvious that the intent was for B to deliver the oven to A. It should be equally obvious that A did not intend for his new oven to be left at an unattended vacant lot.

The defect of the agreement is only found when the delivery driver attempts to put the agreement into effect. The defect is found and identified from information extrinsic to the written ageement, or by outside information.

So what is the true intent of the agreement? Is it to leave the expensive oven at a vacant lot or is it to deliver it to A, probably for use in a restaurant? If the delivery driver views the agreement and his instructions the way you suggest we need to view a deed, he must leave the oven at the vacant lot and then convince A and B that since that's what their agreement said, that's what they really meant to have happen, regardless of whether they each expected the oven to be delivered to A at his place of business.

Or, the driver can seek to clarify the Latent Defect in the agreement, which he found by extrinsic evidence (found no restaurant at the address) when attempting to carry out the terms of the very clear agreement. The only way to do that is with additional extrinsic evidence used to clarify the true intent of the parties to the agreement.

The driver recalls passing an Italian restaurant on his way to 123 Third Street. It's just a few blocks away, so he has a reasonable idea where he should take the oven to fulfill what A & B intended, but our driver being reasonably intelligent, doesn't just rush off and act on his first alternate presumption without verifying it. He calls the warehouse to have the dispatcher find out the correct address.

In the meantime, rather than just wait around, our industrious driver decides to see what he can find out on his own. When he inquires at the restaurant that he passed earlier, he finds out that "A's Pizza Emporium" is just a few blocks away at 123 Third AVENUE, just a couple blocks down and a couple over from 123 Third Street. On his way to "A's Pizza Emporium", the dispatcher calls back with corroborating testimony that the oven needs to go to 123 Third Ave. The agreement put into effect as intended because the driver recognized the defect and initiated investigation to determine, or discern the true intent of the agreement he was charged with facilitating.

He neither determined that the agreement was to leave the oven in a place it did not reasonably seem to belong, nor did he determine that the parties really meant for him to leave it at the nearest Italian restaurant he was aware of. He investigated, sought out information that would lead him to the correct location to leave the oven to fulfill the true intent of the parties to the agreement.

Now suppose that a different driver had been sent, and that driver reasoned that since the agreement specified delivery to 123 Third Street, that it was not his place to question the correctness or validity of the terms of the agreement. If they wanted the oven somewhere else, then they should have been more precise in writing the agreement! So he follows the letter of the agreement and carefully unloads the oven, leaving it right in the middle of the lot. Satisfied that he has done his job well and properly, he drives off and calls in, telling the dispatcher that the oven was delivered as specified. But being the ever diligent delivery professional, he also informs the dispatcher that 123 Third Street is a vacant lot. Don't know why they'd want an oven at a vacant lot, but it is what it is and it's not his place to question, that's for people at a higher pay grade if questions need to be asked.

Being the ever conscientious delivery professional, he suggests that A be called and told that he should come and get his oven before it rains or before one of the ever-present groups of juvenile delinquents finds it.

For whatever reason, A doesn't move the oven right away. Maybe he didn't get the message for a couple days, maybe he lacked a truck and a means to lift the oven, maybe he expected the delivery company to go back, get it and deliver it to the correct address. In the meantime, the delinquents do find it and tag it with no-waterbased, non-boidegradable paint, and decide to build a fire fueled by assorted trash from around the lot because, well because that's what ovens are for and because they're unsupervised kids. By the time A finds his oven, it's useless and he decides to sue B and the delivery company.

Perhaps the judge might reason that it is not a delivery drivers place to question the terms included in the written agreement if the driver tells him that and finds another driver to agree with it. Maybe the judge will buy into the acceptance that delivery drivers are just kind of dense and shouldn't be expected to do anything other than exactly what their written instructions say.

But what if that first delivery driver is called by A's side to testify as to the delivery professional's standard of care, and he testify's that he delivered an oven just last year, and at that time someone had also written "Street" instead of "Avenue", and that it was immediately obvious to him that something wasn't right. And then he further testifies that he was able to figure out what A & B really intended by making a couple of calls and asking a couple of questions of the locals. Do you think that the judge would be likely to find that the driver acted correctly by following the letter of the agreement even though there was adequate indication to show that it was defective? Do you think that the judge would chastise the first delivery driver for deviating from the letter of the agreement in delivering the oven to a different address than as specified in the contract?

Or do you think that the judge will come to the conclusion that a delivery professional exercising reasonable care in simialr circumstances would have recognized the defect in the written agreement and taken steps to discern and put the agreement into effect according to the true intent of the parties to the agreement, though it differ from the clear and unambiguous terms contained within it.


Now substitute "deed description" for "agreement" or "contract;
"North 100 feet" for "123 Third Street";
"North 100 feet to the southerly right of way line of the County highway" for "123 Third Avenue";
"title company" or other appropriate source of information for "dispatcher";
"boundary" for "pizza oven";
and
"surveyor" for "delivery driver".

As licensed professionals, we are not excused from exercising common sense, and even have a higher duty of performance because of our elevated status as experts with regard to boundaries. The difference is that since the technical aspects can be so complicated, the judge may not fully understand how all the evidence fits together and why it should fit together in a certain way. That's why we are experts, so that we can aid the trier of fact to make these interpretations correctly. The judge will weigh our opinions against applicable law (which your side's attorney has hopefully identified the applicable law and properly argued it), and against the thread of common sense which can be found in the laws pertaining to boundaries and to the interpretation of written agreements.

Many surveyors seem to be under the impression that any judge will have more familiarity with laws pertaining to land boundaries than will the surveyor. If that is so, then either the judge has already been well educated through experience with many previous boundary matters, or the surveyor is woefully underqualified to survey boundaries. Although most judges will have good to excellent familiarity with the laws pertaining to contracts, most will have almost no familiarity with laws pertaining directly to boundary. It is up to the attorney to bring those laws applicable to the case to the judges attention and for the surveyor to have properly applied their guidance to his work during the course of the survey. The judges expertise is in interpreting the terms of legal art in the laws and so determine whether or not the surveyor applied them according to a proper understanding of them. That it is the judge's role to determine what the law means and it's proper application to the case, neither precludes nor excuses the surveyor from applying them by a reasonable understanding and per prior guidance of their application as given by past courts.

[bryanmundia]

Evan,

First, the pizza oven analogy doesn't work. You are right in saying that the contract is clear of ambiguity, however, how I am supposed to know that the purchaser did not want the oven delivered to a vacant lot?

The only way I would know is if the contract said that the delivery is to an existing brick and mortar store. Or to be even more specific and eliminate ambiguity, state that it will be delivered to "ABC Pizza Parlor at 123 Somehwere street in, san something, california. If upon delivery, the terms of this contract cannot be met, the seller will be reimbursed and delivery will be rescheduled with additional costs which amount to $5,000.00"

I think that is pretty thorough.

Second, if I start to try and figure out what the purchaser and seller really meant I am now including a human error into the mix. My decision, which may not be the decision of the original purchaser/seller, is now liable for any problem associated with the delivery.

Third, your error in street names is a misnomer. It is a typographical error. I believe that there is writing in one of our widely accepted books which backs up what to do with typographical errors in contracts.

Also, a story regarding pizza oven delivery was a little hard to read through. Why must I read everything, understand what you are saying and then try and substitute some words and read everything over again?

I agree that common sense is a powerful tool in the surveying profession. It helps us to not set up the instrument behind parked cars or in the middle of a lane of traffic. It also helps us understand why we do the things we do in the field regarding procedures. Everything we do should make sense. To a professional who is trained in the industry, our procedures make perfect sense.

I personally think that you are jumping quite the hurdle in going from common sense to intent. I ask you when do you collect extrinsic evidence? Common sense tells me to collect it when I see that there are potential encroachments over boundary lines. Why does my common sense tell me that? It tells me that because I think that maybe at some point I may have to provide the information to first the property owners and then possibly a judge to make a determination of lines of possession versus lines of ownership.

I personally cannot speak about being an expert witness or participating in a case which may come from a boundary dispute. However, I do feel you are correct in saying that the judge does depend on us as experts to provide guidance in the judge's decision as to the intent of the deeds. Again, the judge makes that decision, not you.

I will stand behind my belief that if a contract is free of ambiguity, then the contract is whole and there is no need for extrinsic evidence nor the determination of intent nor should I try to determine intent when there are ambiguities. Instead, I will run through the proper channels of notification to property owners, offer of a solution which I as a surveyor can provide, and if necessary, have a judge decide as to what the intent of the contract was, providing the courts extrinsic evidence and my professional opinion.

My reasoning is for my belief is this. I have asked numerous times for case law or a book which states that I as a surveyor can determine the intent of a deed. No one has provided me with such information. I have been provided information backing up my belief. As a matter of fact, I took Dane's advice and read some of Brown's and asked the surveyors in my office about anywhere in Brown's where it may say that I as a professional and surveyor can determine intent. It states nothing of the sort and actually states in plain writing just the opposite. It states that I do not have the power to determine intent.

If someone can provide me information to the contrary I would greatly appreciate it.

[DWoolley]

Evan,

Suppose another person, “C”, provides a receipt from “B” for the same oven? Does the delivery truck driver decide who gets the oven? Based on which criteria?

Or suppose the soon to be ex-wife of "B" claims it is her oven and “B” has no right to sell it? Who does the delivery truck driver deliver the oven too?

DWoolley

[coast]

I know it's only 7:15 am, but I want a pizza......RIGHT NOW!