Define "intent"

Let's go one further . . .

What if he actually intended the 200' because regulations require 100' frontage and he wanted to ensure his son could split the property later to help finance a new house(on the other 100').

The father never put this in writing, but did tell his son this specification.

Now dad's gone . . .

Now the son wants to build a house and needs the money from the split of his property for the down payment.

County regulations don't care about "intent", and will not allow the split.

In my opinion, the "intent of the deed" is what is says in the deed. If there is ambiguity in the deed, the intent needs to be extrapolated. (an example might be: the deed doesn't close and you discover that they probably said "NW" instead of "NE". You find that "NE" for that leg closes the deed and matches the adjoiners. Thence you discovered the "intent" of the deed in your professional opinion).

In your example, I would say that we are talking more about precision. If the guy wanted to call out 200' and you find pins at around 200', I would say that you probably found the pins that were set to represent the calls in the deed. You might be measuring today with greater precision (or not, I don't know), but you found the property corners at the desired location. I agree yes, he 'intended' to set the pins @ 200'; and I suggest that he probably did; your measurement between the pins confirms that, not contradicts that (in my opinion). I measured a 2X4 board the other day and got 1½" X 3½". I measured a #5 rebar and got 19/32nds of an inch dia.

I would try to argue that the deed describes the property as being 200' and that is the deeded size of the property per the legal description. Your measurement of the 200' confirms it to be correct within about a tenth of a foot. Divide it in half with your measurements. (I don't know if you can convince the county official of that, but that is what I think).

I would say . . . pincushion it.

Could this sort of scenerio a big part of the reason we have pincushions? Trying to weigh "what is", to "what should be"?

Surveyors should understand these situations, how they occur and how to resolve them.

BUT WHAT ABOUT REGULATIONS.......

Obviously, the surveyor doesn't have authority to lie to the planning commission . . . we can only report the facts that exist. Maybe the local court will rule that the "one-hundred" feet quoted in the regulations can be ninety-nine feet to a one hundred and one feet . . . I doubt it. "One Hundred" feet means you'd better have at least 100.000000'+ . . . just like 5 acres means you'd better have 5.000000 acres +.

The absoluteness of numbers in regulations is part of the real problem here.

Regulations means that this guy will have to have 200.0000000'+ to split his property.

If the property was 299.92', I would think that the split would be denied, although if it were that close a variance "might" be in order . . . or maybe the surveyor can "fudge", his data.

If it weren't for the absoluteness of a number in a rule book a surveyor could report the facts, as they are and not have to contemplate the consequences of his opinion to use or not use found monuments.

Old surveyors often gave "extra", just to ensure clients got what they asked for. Of course a little extra here usually means a little less there.

Sometimes it seems like when the surveyor comes into the picture, it's like "death" walking in the door . . . a bad omen.

We use the 4 corner rule - you take the deed by the four corners and read it verbatim and that will express the intent.

When a call says it goes 200ft to "x" monument. The location of "x" monument rules above distance.

In 75yrs monuments can tend to migrate. 2.12 feet is a lot of migration. Nearly a vara worth (2.78ft). Who knows for who was measuring that day or what they used. Darn close for stepping.

When the deed says the East 200ft, the distance rules.

Sometimes what a person says what they want (intent) can turn into something else once put on paper by another, usually a lawyer and their typical jargon they use to better things.

Great post to start a thread

In PLSSia we run into this all the time. The landowner or an attorney or some other scrivener assumes that a half mile is 2640 feet, precisely. Also, that all sides of a quarter section are square and 2640 feet, precisely. Deeds and easements are written and recorded. A century or more passes. Mr. Smartypants Surveyor arrives on the scene. Chaos ensues. "Intent" is introduced into the problem solving. Mr. Smartypants Surveyor lays out a parcel based on his opinion of the "intent". Everything is fine until Mr. Surveyor Whomeasuresbetterthanyou comes along to do a nearby or adjoining tract. Chaos continues. Property owners decide all surveyors are crooks with licenses to steal large sums of money from innocent people. Eventually someone gets upset enough to sue someone else. Now the real chaos gets started. Some judge will issue some edict from his ivory tower based on what will let him get to his golf game a bit sooner. Everyone else loses.

When I used the word "intent" in the above/below discussion, it was in the context of an original, physical monument that the owners can see and feel. The adjoiners "intent" is to make the line where the monuments are.

In your hypothetical involving Daddy's pasture and fence, I do believe if the 20-foot discrepency between the "North half" and the fence ever went to court, Daddy's testimony to where he "intended" the line to be would prevail. (Gilbert v. Gieger, 747 NW2d, 188 (WI Ct App 2008))

The real dilemma to the surveyor

is that he/she can only report the facts.

Fact is, the lot appears to be about 198 feet wide, and nobody really knows why.

But . . . regardless . . . there are consequences that come into play when a measurement comes up different than record . . . often unfair consequences.

It's little wonder that surveyors surveying a whole bunch of 40' lots in the city, want to ensure their client gets 40.000000000'.

Maybe not because the 40.0000000' is so important to the surveyor or the client, but because of what might happen when the bureaucracy finds out that there is less than 40.0000000'.

I'm sure there are some surveyors who like to show their superiority by measuring and staking the "real", and "true", measure, but I wonder how many surveyors are actually afraid to upset the applecart because of the fear of bureaucratic interpretations of their rules?

Honest to God, we all know 200' means something in the neighborhood of 200', but that it's open to many variances what 200' means. How was it measured, when was it measured and what was it measured with?

Since planning commissions offer no leeway in their interpretations, these minor differences become increasingly important and complicated . . . not very simple at all.

Target..

I agree 100%, if Daddy was around to testify concerning his intent. Or any other tangible record or testimony that could be produced to qualify the boundary.

Just because someone uninvolved with the actual conveyance said, "Well, the line was supposed to be the fence.." doesn't qualify as intent.

I heard a judge ask a surveyor who had just bestowed everyone in the courtroom with his interpretation of the deed (and no, it wasn't me, thank God), "Where did you get your crystal ball?"

Mr. Smartypants?

He works up in your neck of the woods, too?

Man that kid gets around. He's been poachin' in my woods long enough to learn something...but apparently he hasn't.

Target..

I wouldn't even be absolutely certain if Daddy was around to testify.

Common Pleas courts are known give some rather "common" justice at times and if the "common", court errs, the litigant has 30 days to appeal to another higher court. Too often, the appeals court is where justice is found, but more often than not it costs too much for a client to pursue . . . while your neck has been stuck out.

If the litigant doesn't successfully appeal the "common" courts ruling, you can bet your bottom dollar that the ruling will stand, un-published as the rule of the land . . . in that court for at least as long as the sitting judges are there.

So, as a surveyor, you can be 100% right and be 100% wrong at the same time . . . averages out to about a big zero.

I have found that most people do what they intended to do.

Target..

I think we're on the same page, just arguing apples vs oranges. I'm referring to landowner intent, your talking about a surveyor's interpretation of intent. Big difference.

"A 1940 survey calls for 200' between monuments. Today you find his monuments and measure 197.88'. I believe he intended to make it 200' and tried his very best. Even though I understand his intent, that doesn't change the location of the monuments. That is about as far as I can use the word intent.
How would you define intent?"

Not like that. Although it's a nice try.

The courts (not me) have explained to us that deeds are contracts and therefore intent is determined based on contract law.

What we may think or believe the parties intended is a subjective analysis and strictly forbidden when interpreting contracts. It is also known as guessing what someone else might have been thinking.

The proper procedure is to determine what the words and actions of the parties, at the time of the conveyance, taken as a whole body of evidence, considering the surrounding circumstances, shows that they DID. Not what we think they were thinking (intellectual heresay).

So it would go more like this. The survey indicates 200 feet and monuments. We find "his" monuments and we measure 197.88' between them. The measurement helps confirm they really are his monuments and due to measurement error of the time they have not been disturbed. The physical act of setting the monuments is a consumation of the bargain. It is the most certain and concrete action or expression indicating what the parties DID. It is the delivery of the commodity bargained for. Acceptance is assumed if no protest has been made in a reasonable time. The description of a commodity is regularly vague or ambiguous but this does not destroy the contract if the commodity can be reasonably identified by use of extrinsic evidence and/or by delivery and acceptance of the commodity itself. When dealing with land, the survey is the delivery of the commodity; it has not been completely identified until the survey takes place. After complete identification and acceptance for a reasonable time, it can not be re-identified as something else.

So, the contract language is the plan. The survey is the identification of the subject matter of the contract language. The survey markers identify the intent; we do not have to guess what they might have been thinking of trying to do.

We can not know for certain what the parties were trying to do, and in fact, even the parties themselves are forbidden to testify to what they were intending to do. They are only allowed to clarify words or phrases that have ambiguity, not to tell us what they were thinking.

Objective intent is a thing, not a thought.

Target..

:good: :good:

He intended to convey

the land encompassed by the monuments, IF the deed calls for the monuments. If the deed calls for 200.00 feet, and no monuments, I would say that the called distance describes intent.

I own one of this properties

One parcel I own is described as: That part of the west half of the southwest quarter of Section X lying east of the XYZ railroad. There is a tree/fence row that has been in existence since long before the drafting of the deed to separate the west half from the east half. All subsequent owners on both sides have used the tree/fence row as the common boundary line. Measurements show the tree/fence line to be about 60 feet too far east on the south end and about 20 feet too far east on the north end. Note that the owner retained ownership of the east half until passing it on to his son about 40 years later.

For those who want to nitpick further for their own amusement, substitute Section 30 for Section X above and know that the record distance along the south line of the southwest quarter is 37.70 chains. Or try it again as 41.30 chains.

For even more fun, consider that the west line of the section runs north and the south line runs about south 85 east.

I agree. The intent gets implemented most times by what they DID. It probably isn't perfect and may not always be pretty, but if the contract has been fulfilled it shouldn't be disturbed.