There have been some really good recent threads on interpretation of deed language. There is still much reluctance in the surveying community in general that this is something that can be taught. Many believe experience is the only way. I think it takes memorizing some rules, and practice applying them to differing fact patterns. In my courses I did this with case briefs wherein you read the facts then write about the case in a certain format and come to a conclusion. I put this out not to change any minds, but only to show what we were doing in one surveying program. For anyone that wants to play; I am posting a fact pattern that you can respond to with where the line is and why. I will not respond, but attaching the model answer students get along with their graded papers. On your honor not to peak first.
"This is an action in ejectment to recover possession of twelve acres of land in lot 17, township 2, Totten & Crossfield's Purchase, lying in Hamilton county. The premises are wild lands within the Forest Preserve, not in actual occupancy by the plaintiff, but in possession of the defendant. It is conceded that the State owns lots 16 and 17, except Pine Point, of which the defendant is the owner. The disagreement here involves solely the area of Pine Point. [***3] The issue arises in connection with the construction of the exception contained in a deed from William Harris to the People of the State of New York dated January 3, 1901. The description of the lands in this deed is as follows: "Totten and Crossfield's Purchase. Township Two (2) * * * Lots Fifteen (15) Sixteen (16) and Seventeen (17) each containing two hundred sixty-nine (269) acres of land and water, excepting and reserving a parcel of Fifty (50) acres in the said Lot sixteen (16) and Lot seventeen (17) known as Pine Point on Sacandaga Lake."
William Harris is the common source from which plaintiff and defendant's predecessor derived whatever title they have to these premises. About one-half of lots 16 and 17 is land and the remaining half water known as Sacandaga lake. In the deed it is recited that each lot contains 269 acres, making a total of 538 acres in lots 16 and 17. The actual area of these two lots, however, is 547.07 acres. In the conveyance from Harris to the State it is stipulated that the consideration was based upon a unit price of six dollars and fifty cents an acre for the quantity of lands conveyed and the grantor was paid for 488 acres of land in lots [***4] 16 and 17. From this it appears that even if defendant is able to retain the full 50 acres contained in the exception, the State, nevertheless, has the title to and possession of 10 acres over and above the quantity for which it paid.
The evidence discloses that in the northeasterly portion of Sacandaga lake a strip of land extends into the waters. This projection has one small spur to the south and a larger spur to the north, from the latter of which there are several subsidiary spurs. It is the plaintiff's claim that Pine Point includes only the area covered by the geographical definition of the word "point" [*864] and consists simply of the smaller and more southerly of these projections and that it should be limited to that portion of the land extending into the lake beyond a straight line drawn from the deepest indentation on one side to the deepest indentation on the other. The point as thus defined and limited contains but thirty-eight acres. Defendant asserts that the term Pine Point is not limited in common acceptation to [**261] the smaller projection and was not thus limited in the minds of the parties to the conveyance but embraces the area known as "the [***5] whole peninsula" including the disputed triangular strip of twelve acres northerly of and adjacent to the premises which the State contends is the only territory covered by this designation. Testimony was given that the term Pine Point had acquired by custom a well-known, peculiar, idiomatic meaning in that community and that it included the territory known as "the whole peninsula.""
No survey at time of conveyance. Recent survey shows entire peninsula about 50 acres.
Sitting in the seats occupied by the original parties in 1901:
1. The call for Pine Point is ambiguous. Reference to extrinsic evidence to determine what that meant is essential.
2. The original parties call it fifty acres.
3. The understanding in the community is that it is more than just the point, a larger area.
4. The community understanding is consistent with the call for fifty acres in the Deed.
Defendant gets fifty acre Pine Point. The extra ten the State got for free...can't help that because it's outside the bounds of the exception.
Walsh v. Hill, 38 Cal. 481, 487 (1869): ÛÏIn conclusion, upon this branch of the case we deem it proper to say, that in the construction of written instruments, we have never derived much aid from the technical rules of the books. The only rule of much value - one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books - is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was; then, taking it by its four corners, read it.Û
Dave Karoly, post: 347366, member: 94 wrote: Walsh v. Hill, 38 Cal. 481, 487 (1869): ÛÏIn conclusion, upon this branch of the case we deem it proper to say, that in the construction of written instruments, we have never derived much aid from the technical rules of the books. The only rule of much value - one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books - is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was; then, taking it by its four corners, read it.Û
Except that the "four corners" rule was done away with wherever it existed. NY never really recognized it as far as I can tell. Extrinsic evidence is allowed in land boundary contracts because of the uncertainty of language in describing a unique thing. Same reason specific performance is allowed in real estate transactions and not for widgets.
The case involves a parcel on Mission Bay. I suspect they are talking about eastern San Francisco just north of Candlestick Park. I think they've got the parcel turned 90 degrees counter clockwise since Mission Creek appears to run northeasterly, not northwesterly as suggested by the description given in the opinion. But that's just from noodling around in Google Maps.
The issue is the description starts at the low water mark then runs south (I suspect it should be west, like they were looking at the map sideways) along a ditch to where the ditch turns west. The opinion states that if the POB is changed to the high water mark (about 2000' towards land) then all the other calls make sense.
"... place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was written,..."
That looks to me to be an admonition to read the deed in the context of the circumstances existing when the conveyance was made. That necessarily entails the use of extrinsic evidence in order to establish what the circumstances were. I believe that the justice's understood that and intended this to be direction to use such evidence.
My understanding of the "four corners" rule is that extrinsic evidence cannot be used except to explain an ambiguity apparent on the face of the document. That is, the circumstances surrounding the conveyance are not taken into account and the deed is the only evidence to be used to determine the intent of the parties.
Dave Karoly, post: 348068, member: 94 wrote: The case involves a parcel on Mission Bay. I suspect they are talking about eastern San Francisco just north of Candlestick Park. I think they've got the parcel turned 90 degrees counter clockwise since Mission Creek appears to run northeasterly, not northwesterly as suggested by the description given in the opinion. But that's just from noodling around in Google Maps.
The issue is the description starts at the low water mark then runs south (I suspect it should be west, like they were looking at the map sideways) along a ditch to where the ditch turns west. The opinion states that if the POB is changed to the high water mark (about 2000' towards land) then all the other calls make sense.
The case you posted is a good read. In fact I argued the very point they refer to in boundary dispute a few years back. The reference to "four corners" is not the four corners doctrine I thought they were talking about. The opposing side, as in the case I argued, was saying the "rule" is the POB controls over all the other calls. This case says no it doesn't unless it really is the least likely call to have been mistaken and is followed by more uncertain calls, much like a case I used to use from Texas (Stafford v king). Why do I have to argue that point of law in 2002 when all across the country courts have ruled this way? I think it must be because these general rules are stated somewhere in the secondary texts and passed around in the surveying community without the necessary further explanation such as the court gives in the case you posted. In fact I would bet the professional surveyor exam in NY has a question and answer incorrect on the very point because the one I argued against writes the questions. Folks, the POB is no more controlling than any other call; can't we all agree on that at least. A better rule to memorize would be that which is least likely of mistake is controlling, and that is not always the POB, and much of the time it is not one point but a bunch of the points that make sense when taken together (this courts four corners reference).
MATTER OF ANNEXATION OF LAND, ETC., 572 SW 2d 141 - Ark: Supreme Court 1978
It is clear from the evidence contained in this record that even though a call in the metes and bounds description was erroneously designated as "thence in a northeasterly direction," when in fact it should have been "thence in a southeasterly direction," the points in question are certain and definite enough to enable a trained surveyor to plat and identify the property involved. We are persuaded that O'Kane v. McLean Bottom Levee & Drainage District No. 3, 211 Ark. 938, 203 S.W.2d 392 (1947), is applicable where we stated:
"Where a deed described the lands conveyed by metes and bounds, and other description that can be made certain by evidence aliunde, it is sufficient."
Aliunde means from another place or outside source. It is often used to refer to evidence given aliunde when meaning cannot be derived from a document or instrument itself. For example, when a will contains an ambiguity, in some cases, in order to ascertain the meaning of the testator, evidence aliunde will be received.
JUNCTION CITY SPECIAL SCH. D. v. Whiddon, 249 SW 2d 990 - Ark: Supreme Court.
I disagree with that holding, because we have repeatedly held that a "pt." description in a tax sale or tax receipt cannot be aided by evidence aliunde to show which particular tract of the full government subdivision was covered by the letters "pt.". These cases are collected in Jones'"Arkansas Titles", Sec. 251 and 252
Bowlin v. Keifer, 440 SW 2d 232 - Ark: Supreme Court 1969
I agree with the majority opinion that the description contained in the agreement of sale is insufficient to constitute notice to a bona fide purchaser for value, HOWEVER, I do not agree that the description is void as between Ova Lea Keifer and Guy G. Wade. In Varner v. Rice, 44 Ark. 236 (1884), we permitted evidence aliunde to show what was meant by the description "the plantation called the Varner place". In Thomason v. Abbott, 217 Ark. 281, 229 S.W.2d 660 (1950), we pointed out that a description "a part of the East Half of Southeast Quarter of Section 31, 6 acres" was void for indefiniteness insofar as record title was concerned but that as between the grantor and grantee evidence aliunde might be introduced to establish what lands were intended to be conveyed.
Undernehr v. Sandlin, 827 SW 2d 164 - Ark: Court of Appeals, 1st Div. 1992
Appellant cites Moseley v. Moon, 201 Ark. 164, 144 S.W.2d 1089 (1940), as "more closely on point" and refers to language in that case which states that a description is sufficient if it "furnishes a key through which the land may be definitely located by proof aliunde." The paragraph which contains that language also states:
ÛÏOf course, the converse of this proposition is true; that is to say, extrinsic evidence is not admissible to cure or perfect a description which in itself is void and offers no key or suggestion by which the land may be located.Û
Moreover, we do not agree that the description in this case "furnishes a key through which the land may be definitely located by proof aliunde." The problem with this description is greater than an error as to the beginning point (which is the error suggested by appellant). The description goes east from the point of beginning and then goes south and then west and, after going south and west again, it goes north but never returns to the point of beginning. It simply stops and states "Etc.," which leaves the rest of the description to the imagination of the reader. This description is equally as defective as the one held void in the case of Gardner v. Johnson, 220 Ark. 168, 246 S.W.2d 568 (1952), cited in our original opinion and that is a later case than the case of Moseley v. Moon, supra, relied upon by appellant.
Payton v. Blake, 210 SW 3d 74 - Ark: Supreme Court 2005
The question, then, for this court to resolve is whether a parcel number is a comparable description to a Lot-and-Block description in a deed which necessarily refers to a plat of the property that has been recorded. Testimony at trial by Connie Beyerle, an abstractor for the Crawford County Assessor's office, revealed that the legal description in Payton's tax deed was not complete by itself, but she went on to say that her office identifies what piece of property Payton bought by the parcel number. She gave the circuit court her understanding of what a parcel number is:
ÛÏThat parcel number is basically like a social security number of that piece of property. Uh . . . you pull those cards, we have records, we have the old cards that we keep files on and we also have everything in computer, and on those cards and in our computer we have all the deed references, and anybody that is buying State land or is doing research whether it's State land or just buying it from an individual, when they come in and do research, we give them the book and page and they can go to the Circuit Clerk's office and pull the deeds and get the full legal description.Û
We conclude that the legal description in the Payton deed is not complete. Even considering Ms. Beyerle's testimony of what can be done to obtain the description, it involves several steps. One must first examine the cards in her office, find the book and page number, go to the deed records, and then ascertain the actual description from that book and page number. The property description found presumably would be the metes-and-bounds description in the Mayo deed to the Rices. This procedure fails the test of an accurate, complete, and specific legal description. Furthermore, we do not view a reference to a parcel number in a tax deed as remotely comparable to a Lot-and-Block description in a deed which necessarily brings into play a recorded subdivision plat.
Hence, it appears that the parcel number system is used by assessors and collectors to reference land for tax purposes. Yet, neither this court nor the General Assembly has sanctioned the use of parcel numbers as a substitute for valid legal descriptions, while Lots-and-Blocks descriptions in subdivision plats are a recognized means of describing real property.
Û?Users should be aware, by Arkansas Law (15-21-504 2 B) digital cadastral data does not represent legal property boundary descriptions, nor is it suitable for boundary determination of the individual parcels included in the cadastre. Users requiring a boundary determination should consult an Arkansas Registered Land Surveyor on boundary questions. The digital cadastral data is intended to be a graphical representation of the tax parcel onlyÛ?
DDSM:beer:
One problem in the PLSS is the GLO only monumented 8 corners around the exterior of the Section but they patented out 40 acre parcels and government lots. In a standard Section there are 25 corners that could be the corner of a patented parcel. These are all of the 1/16th corners and the center quarter section corner. The County Surveyor or other private Surveyor would run those lines as needed by patentees and set posts at the missing corners. Then often Deeds would get tied to those posts but usually they would only state "beginning at the northeast corner of the southeast quarter of the southeast quarter of Section _".
This leads to an obvious problem, 1. use the old post for the 1/16th corner which fits with everything in the neighborhood or 2. resubdivide the Section again and put all the Deeds where they are "supposed" to be which could result in the surveyor jumping over a fence and marching fifty feet to within window peeper distance of the neighbor's house. The house and fence have been there for decades assuming the old 1/16th post was correct and the fence fits the Deed distance from the post within a few feet. I have used Walsh v. Hill to explain we are supposed to use what they used, not an imaginary coordinate that didn't exist until I calc'd it yesterday.
Oops-there are 25 total patent corners possible, 8 were set (four section corners and four exterior quarter section corners), 17 were not set by the GLO (all the 1/16th corners and the center quarter section corner) and were left to the County Surveyor or local Surveyor.
This is a good example of knowing the local definition of a word. When I read Duane's post I didn't see any ambiguity in the definition of "Point". In the Adirondacks a peninsula is referred to as a point.
If I was in New Jersey the word "Point" would mean the end of a peninsula, usually the narrow extension of the peninsula. Two different regions two different definitions for the same word.
A deed must be interpreted using the language in the time and place it was written.
Is the Four Corners Doctrine the same as the Parol Evidence Rule?
The California Parol Evidence Rule runs to 83 pages in Witkin Summary of California Law, most of that is exceptions.
Supplement
Copyright (c) 2012 B.E. Witkin Article Sixth Testamentary Trust Witkin
California Evidence, Fifth Edition
B.E. Witkin and Members of the Witkin Legal Institute Chapter VIII. Documentary Evidence
V. PAROL EVIDENCE RULE
A. Nature of Rule.
(1) In General. The parol evidence rule, with certain exceptions, prohibits the introduction of any extrinsic evidence (oral or written) to vary or add to the terms of an integrated written instrument (a contract, deed, or will). (See Estate of Gaines (1940) 15 C.2d 255, 264, 100 P.2d 1055; Imbach v. Schultz (1962) 58 C.2d 858, 860, 27 C.R. 160, 377 P.2d 272, citing the text; Masterson v. Sine (1968) 68 C.2d 222, 227, 65 C.R. 545, 436 P.2d 561, infra, å¤90; Tahoe Nat. Bank v. Phillips (1971) 4 C.3d 11, 23, 92 C.R. 704, 480 P.2d 320, infra, å¤65, citing the text; Price v. Wells Fargo Bank (1989) 213 C.A.3d 465, 486, 261 C.R. 735, citing the text; Alling v. Universal Mfg. Corp. (1992) 5 C.A.4th 1412, 1433, 7 C.R.2d 718, citing the text; 9 Wigmore (Chadbourn Rev.) å¤å¤2425 et seq., 2443 et<> seq.; 6 Corbin (Rev. ed.), å¤573 et seq.; 11 Williston 4th, Chap. 33; 2 Jefferson, California Evidence Benchbook 4th, Chap. 34; C.E.B., Effective Introduction of Evidence 2d, Chap. 37; 25 Southwestern U. L. Rev. 1 [analyzing recent cases and arguing for abolishment of rule]; 69 A.L.R.3d 1353 [parol evidence rule in action on contract for architect's services]; 29A Am.Jur.2d (2008 ed.), Evidence å¤1104 et seq.; 36 Proof of Facts 3d 331 [introducing evidence over parol evidence objection].)
I've seen parcel numbers used as descriptions and thought it is BS. Nice to see some common law that says so. Heck I reviewed one a few years ago where a lawyer had used parcel numbers to convey about 10 parcels in a single deed. Sure easy and quick BUT does it really work?
I question whether the parcel number is as permanent as a social security number as was mentioned in the testimony. I think I heard of an instance where the parcel numbers were reassigned at the convenience of the assessor's office. Good luck tracing that back.
Dave Karoly, post: 348124, member: 94 wrote: Oops-there are 25 total patent corners possible, 8 were set (four section corners and four exterior quarter section corners), 17 were not set by the GLO (all the 1/16th corners and the center quarter section corner) and were left to the County Surveyor or local Surveyor.
Yes, and it's universal not just PLSS. The only thing different in the PLSS is you have a repeating theoretical pattern, and even there the situation differs. For instance, there were not 25 total patent corners possible at the time of original surveys in the more eastern states. Many areas of NY were originally laid out grid fashion, just not called sections or other PLSS terms. But corners or lines of these grids were routinely called for in deeds.
Dave Karoly, post: 348264, member: 94 wrote: Is the Four Corners Doctrine the same as the Parol Evidence Rule?
The California Parol Evidence Rule runs to 83 pages in Witkin Summary of California Law, most of that is exceptions.
Supplement
Copyright (c) 2012 B.E. Witkin Article Sixth Testamentary Trust Witkin
California Evidence, Fifth Edition
B.E. Witkin and Members of the Witkin Legal Institute Chapter VIII. Documentary Evidence
V. PAROL EVIDENCE RULE
A. Nature of Rule.(1) In General. The parol evidence rule, with certain exceptions, prohibits the introduction of any extrinsic evidence (oral or written) to vary or add to the terms of an integrated written instrument (a contract, deed, or will). (See Estate of Gaines (1940) 15 C.2d 255, 264, 100 P.2d 1055; Imbach v. Schultz (1962) 58 C.2d 858, 860, 27 C.R. 160, 377 P.2d 272, citing the text; Masterson v. Sine (1968) 68 C.2d 222, 227, 65 C.R. 545, 436 P.2d 561, infra, å¤90; Tahoe Nat. Bank v. Phillips (1971) 4 C.3d 11, 23, 92 C.R. 704, 480 P.2d 320, infra, å¤65, citing the text; Price v. Wells Fargo Bank (1989) 213 C.A.3d 465, 486, 261 C.R. 735, citing the text; Alling v. Universal Mfg. Corp. (1992) 5 C.A.4th 1412, 1433, 7 C.R.2d 718, citing the text; 9 Wigmore (Chadbourn Rev.) å¤å¤2425 et seq., 2443 et<> seq.; 6 Corbin (Rev. ed.), å¤573 et seq.; 11 Williston 4th, Chap. 33; 2 Jefferson, California Evidence Benchbook 4th, Chap. 34; C.E.B., Effective Introduction of Evidence 2d, Chap. 37; 25 Southwestern U. L. Rev. 1 [analyzing recent cases and arguing for abolishment of rule]; 69 A.L.R.3d 1353 [parol evidence rule in action on contract for architect's services]; 29A Am.Jur.2d (2008 ed.), Evidence å¤1104 et seq.; 36 Proof of Facts 3d 331 [introducing evidence over parol evidence objection].)
Yes, that's basically it. I'm sure there are enough exceptions in those 83 pages that you can be sure parol evidence will be allowed in interpreting a deed.
Dan Dunn, post: 348131, member: 911 wrote: This is a good example of knowing the local definition of a word. When I read Duane's post I didn't see any ambiguity in the definition of "Point". In the Adirondacks a peninsula is referred to as a point.
If I was in New Jersey the word "Point" would mean the end of a peninsula, usually the narrow extension of the peninsula. Two different regions two different definitions for the same word.
A deed must be interpreted using the language in the time and place it was written.
Well, it's case by case. Not all Adirondack peninsula's are referred to as a point. I wouldn't assume it means the same thing in every case in New Jersey either. It's those undetected exceptions to the general rules that cause problems. In the case I posted the court admitted that the general rule was as you state it is in New Jersey.
The Parol Evidence rule only applies to prior agreements and contemporaneous parol agreements. Subsequent oral agreements are not prohibited under the rule.
Charnay v. Cobert, 145 Cal. App. 4th 170 (2006) is an Attorney malpractice case:
Finally, the trial court also ruled Charnay's fraud claim was barred under the parol evidence rule because the allegations Cobert assured Charnay she would recoup her attorney fees contradicted the ÛÏno guaranteesÛ clause in the written retainer agreement. Invocation of the parol evidence rule in this context is unwarranted. The parol evidence rule, codified in http://web.lexisnexis.com/research/buttonTFLink?_m=26d84e3efff925b67c901909144bcb34&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b145%20Cal.%20App.%204th%20170%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=51&_butInline=1&_butinfo=CAL.%20CIV.%20PROC.%20CODE%201856&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAb&_md5=5464dc5ca96ccc70e0806fa86ac19c85&apos ;">Code of Civil Procedure section 1856, subdivision (a), prohibits a party from resorting to extrinsic evidence of a prior or contemporaneous oral agreement to contradict a plain and unambiguous term of a fully integrated agreement. http://web.lexisnexis.com/research/retrieve?_m=49a90caa8c465309de123b0009760c23&csvc=bl&cform=searchForm&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAb&_md5=557984321b2fa573819380e619a8dbe3#fnote16&apos ;">16 Charnay's allegations, however, involve promises made subsequent to the execution of the parties' retainer agreement, not a prior or contemporaneous oral agreement. Accordingly, the parol evidence rule is simply inapplicable. (http://web.lexisnexis.com/research/buttonTFLink?_m=26d84e3efff925b67c901909144bcb34&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b145%20Cal.%20App.%204th%20170%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=52&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b183%20Cal.%20App.%203d%20695%2c%20699%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAb&_md5=69319071cd2abfe235c104c3f4aa5262&apos ;">Marani v. Jackson (1986) 183 Cal. App. 3d 695, 699, fn. 2 [228 Cal. Rptr. 518] [parol evidence rule excludes only extrinsic evidence of prior or contemporaneous oral agreements, not subsequent oral agreements]; http://web.lexisnexis.com/research/buttonTFLink?_m=26d84e3efff925b67c901909144bcb34&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b145%20Cal.%20App.%204th%20170%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=53&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b56%20Cal.%20App.%204th%201453%2c%201465%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAb&_md5=39bac9769d3a7442ef9bb5029ecc0cd3&apos ;">Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1465 [66 Cal. Rptr. 2d 518] [same].) http://web.lexisnexis.com/research/retrieve?_m=49a90caa8c465309de123b0009760c23&csvc=bl&cform=searchForm&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAb&_md5=557984321b2fa573819380e619a8dbe3#fnote17&apos ;">17
Can't figure out why all that is bold, iPad being "helpful."
Also the Parole Evidence Rule requires an integrated agreement (meaning the contract is the entire agreement). The Statute of Frauds does not necessarily require the complete agreement be in the writing, therefore the Deed may not be an integrated agreement for purposes of the Parol Evidence Rule.