When the written description refers to a map/plat that is attached as an exhibit, and one contradicts the other, which prevails?
I thought the written legal description was the basis of the map, or at least my class on principles and practice said so. The map is the manifesting of those words, which came from the field work and parol evidence etc etc etc. I'm a newbie though, so I'm sure I'm just showing how little I know and am about to get a good wallop of learning...
Hit me!
I believe when a plat or map is called for in a description it is an integral part of the description, and under most circumstances, correctness is assumed to reside in the map. The presumption is that the probability of a scrivener's error is greater than the map maker's.
However, one must always consider the description within the "4 corners" of the document, which in this case includes the map. It is the surveyor's duty to determine to his best ability to put on the ground what the original principals intended... as expressed in their documents.
They should be in full agreement. I agree that the "typist", who is copying from the survey plat, is the logical one to make the error.
Maybe neither one.
When the written description refers to a map/plat that is attached as an exhibit, and one contradicts the other, which prevails?
Was the description prepared by the surveyor who stamped the map?
This is a DOT R/W taking. The description involves two parcels. One is an easement for slope maintenance, the other is "required R/W". Whoever it was that prepared the written description mixed them up. If the written description were used there would be existing R/W (fee simple), then slope easement(where there are no slopes), then required R/W (fee simple). It looks like the surveying company that prepared the map also prepared the written description.
This is one reason that I abhore the practice that is common in some states of writing a metes and bounds (or more often just metes) description when a perfectly fine plat exists. A pointless excessive that provides more opportunities for mistakes and questions like this.
@Jitterboogie how would one even do that? How would you know what the metes are without creating a map?
As a general principle I would assume that the plat is correct for the reasons already stated, but as always the particulars in a specific case may prove otherwise.
then slope easement(where there are no slopes)
I think that is the key.
Whichever one, in your professional judgment, best conveys the intent of the grantor.
how would you make the map if not using the field notes to guide the creation of it?
Trying to put my head into how they did it especially when they were traveling y ship, it must have always been a work in progress.
The metes and bounds are obviously the carryover fro Ye Olde English writing and process that was the expected and accepted norm. I always get a little laugh when I see ...From the TPOB...thence....blah blah blah.... Is there a false point of begining???
Anyway, I thought the Intent of the legal description is to provide an unambiguous and traceable path that is in harmony with the plat, and the words that are written are what the plat was created by and from. again remember I'm a newbie, though I have been trying to learn as much as I can stuff into my 5lb sack.
Speaking as someone who has done many of these maps. Often DOT has title people who put the instruments together. I highly doubt that the surveyor was the person who crafted the instrument and filed it incorrectly. My guess was the surveyor may have written the description (20/80 chance), although it probably came from inside the DOT working with the ROW survey and the engineers. Then the next step is to turn it over to the title people who insert it into the proper instrument, get it signed by the grantor and filed. The surveyor will be 3-4 degrees of separation by then. They took a description from the engineering design, had a description crafted and put it into the wrong instrument.
In Oregon our statutes apply:
Wattles has a section on the issue on page 2.7.
Jp
I also have to say that now the work flow has changed to catch these issues. A ROW survey is done, from that the engineers design a new ROW, ROW is acquired, temporary easements for construction are done on a different drawing and after construction a post construction plat is filed. That plat sometimes catches problems and should rectify any that are found. Stuff happens!!
We have a validation process to correct these issues. I see a lot of 'correction deeds' signed by one party that just make it worse. Worse yet are quit claim deeds exchanging parcels.
Once a right-of-way is created it needs to be handled under r-o-w laws. They aren't that complex...
