If the map is a filed document and the deed references it, the map will control but that would depend on the wording on the deed.
Having two points of beginning, but only one of them being "true", is one of my description pet peeves. Sort of like "true" north. We're accustomed to dealing with them, but the public is not and can easily get confused.
I'm with the "determine intent" crowd.
It's those danged words that sound alike but don't mean the same thing:
flue, flu, flew
to, too, two
by, buy, bye
hour, our or are, ARRRRR
eye, aye, I
ewe, yew, you
Then you have: Miss Viola said ,"Voila."
A few days ago I was watching an episode of "The Rifleman". Son, Mark is complaining about his schoolwork and trying to figure out the :I for E, except after C..................... Dad, Lucas, recites the full example. Then Mark points to the word, "glacier", which was spelled correctly, but a violation of the standard rule. Dad, Lucas, says, "Oh, yeah. That's a French word."
Google sucks.
voracity is about hunger. veracity is about truth.
typing it is slower but more accurate than trying to babble into the GIGO translation of my head set or armor case for the stupid phone.
fat fingers and autocraptech being the other issue
Since the map is included then it is proper to take the whole legal description and map together, giving control to those elements which give effect to the intentions of the parties and eliminate those elements which don’t make sense or seem to be in error.
I have one now which is a leach field easement written by a Forest Ranger in 1948, I wish there was a map or at least a sketch. It’s not great, one point of confusion is it refers to the southeasterly boundary of the dominant tract it is appurtenant to, it only has a south or east boundary. I finally decided to change it to southerly (erase east) and then everything else fits plus the physical leach field is to the south.
Oh, my. A typo in a comic.
intentions of the parties
yessiree!
I spoke with the attorney that prepared the deed. He stated that the surveying company provided the descriptions and maps to be included in each deed. He will have to make some calls to figure out the protocol for correcting it.
and one contradicts the other, which prevails?
If I'm retracing your survey, and I find something wrong, I hope common sense actually prevails.
It's always best.
N
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.
Moe you are right on. This is a huge issue and getting worse IMO with the lack of understanding/importance of land title documentation and execution. It doesn't help that local government (planning departments) has taken a larger role in land title by regulating property through title and surveying. Jp
local government (planning departments)
And GIS people
especially with no guidance or Interaction with actual licensed and experienced surveyors...
I was a city GIS Utility Coordinator and was awestruck at some of the things people were planning on doing and just figured they could do presumably with ignorance and impunity....like forcing people to either sell their property to the city or be classified as uninsurable because they were in the 500 yr flood plain...
ftw? Yeah, I still shudder the thoughts of that place and what they're doing 5 years later... yikes.
Clearly a mistake, so not much of a problem if it were actually a conveyance. Surveyors opinion of intent maybe sufficient. But according to the post, this is a taking. There isn't any agreed upon intent to analyze. Takings are grounded in constitutional law while conveyances are grounded in contract law. Probably there is a statutory process that needs to be followed to correct this mistake without violating due process rights of the entity whose ownership was taken for public purpose.
If it really is a "taking" and not deed as the OP originally characterized it. The distinction matters as you point out. But does not the intent of the Judge matter when analyzing for a scriveners error in a taking? Seems obvious to me that the Judge's intent was to award AOT what they petitioned for based on the included plan. We're not talking about decision language, but functionally a reference to an exhibit. May be more messy to correct error as you point out, but from the standpoint of surveying the "taking", I'm not sure I'd get too much heartburn making that call when accompanied by the appropriate CYA note.
This particular instrument was classified as a "Right of Way Deed". Most will reference a civil action number if it was a "taking". I will hold off finalizing our plat until things are corrected or clarified. There is a 0.75 acre difference between the two possibilities.
@jumbomotive I think a Judge would only be involved in a decision on how much is paid, if it was challenged in court. But yeah, I too would go with the map in this case if pressed. But would also let them know that something more is needed.
Stacy now posted it's a row deed, so maybe not a taking. I would still try to get a correction deed, but surveyor opinion could be all that's available if many years have passed. And of course if that's challenged by a different surveyor opinion then Judge will decide.