> My definition of intent could be described:
>
> 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?
I tend to agree. The intent is subordinate to the monument locations. Even the fence could be superior to intent. As the fence may be shown to be the physical manifestation of the intent. Should either monuments or fence be mentioned in the deed then intent would have little bearing at all. Just how I would weigh it.
For the moment omit the surveyor involvement and think about the "intent" as measured by a fuzzy recollection 30 years later vs. what the deed says in writing. You know, the written contract vs the verbal memory.
Intent would be like the old cartoon with 4 or 5 views of the swing that was around several years ago. I used to have a copy, but don't have a clue where to find it now. Or the ones of the railroad, highway, or the bridge coming together after being ran in from opposite directions to meet in the middle.
Usually intent can be determined from the deed document that created the tract and by reading it with the needs and typical intent of the time of the people who created it, what is valued, changes over time, most today aren't fencing out the neighbors milk cow or chickens, if a waterway is involved owners of the past typically needed access to water for livestock water. Also just accepting a monument that is a couple of feet out does not take into consideration what has taken place since the monument was set. If the surrounding work was a much closer match of the record and by holding a monument found 2 feet from the described position and that discrepancy gains one owner 2 feet of land and the adjacent neighbor looses 2 feet, would you blindly hold it or would you reveal what the research and field measurement inplyed and then get the owners involved. The reason evidence is found where it is becomes more important every day as property values rise. If occupation has ripened and action is taken to obtain written title the differences between record and occupation must be known so the record can be updated to represent what is on the ground. It is the consideration of all of the evidence and implied intent that must be considered before holding a monument that may not occupy the place it was initially set, we still have a few who will move monuments and fences to gain control of ground, for that reason, laws are slowly changing, making such activities less fruitful, those changes, 'driven by Planning and Subdivision Statutes which get more restrictive every time a lobbyist gets an audience.", probably will have an impact on what Surveyors accept as reliable and undisturbed evidence in the future.
jud
How would you define intent?
From thefreedictionary.com:
n.
1. Something that is intended; an aim or purpose. See Synonyms at intention.
2. Law The state of one's mind at the time one carries out an action.
3. Meaning; purport.
From Brashier v Burkett, 350 So.2d 309:
It is a fundamental precept of property law that courts should construe instruments so as to give effect to the intent of the parties. Ala.Code, Tit. 47, §§ 17, 23 (1940); Stratford v. Lattimer, 255 Ala. 201, 50 So.2d 420 (1951). Yet, any court undertaking the dissection of such an instrument in order to ascertain the intent of the parties is faced with a task which, by its very nature, is plagued with the difficulties and uncertainties that necessarily accompany any probe into mental processes. Fortunately, however, the burden placed on the courts in scrutinizing deeds is facilitated by a body of judicially and legislatively created guidelines for the construction of deeds conveying property.
Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument. Tit. 47, §§ 17, 23, Code of Alabama 1940; Stratford v. Lattimer, supra; The court should be careful to try to give meaning to every clause and provision of the instrument. Gentle v. Frederick, 234 Ala. 184, 174 So. 606 (1937); Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).
Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created. Nettles v. Lichtman, 228 Ala. 52, 152 So. 450 (1934).
Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument. Slaten v. Loyd, 282 Ala. 485, 213 So.2d 219 (1968).
I don’t think we can define intent without understanding ambiguities and the role of the surveyor.
From Blacks, ambiguity is defined as: “uncertain in meaning, especially one that is revealed by the text or by extrinsic evidence other than direct evidence of the writer’s intention when that intention contradicts the plain meaning of the text.”
There are two types of ambiguities, patent and latent.
From Blacks, a patent ambiguity is an ambiguity that clearly appears on the face of the document.
From Gilbert v Geiger, 2008 Wisc.App. LEXIS 21, 11 (Wisc.App. 2008):
An uncertainty which does not appear on the face of the instrument, but which is shown to exist for the first time by matters outside the writing when an attempt is made to apply the language to the ground is known as a “latent ambiguity”. 23 AM.Jur. 2d Deeds §262(2007). As a rule parole evidence is admissible in such a case.
So, in the situation presented by Mr. Cash: A 1940 survey calls for 200' between monuments. Today you find his monuments and measure 197.88'.
As usual in hypothetical situations, there is a bunch of information left out, so we have to assume certain facts (yes, this can be dangerous). Assuming the description is something like: “Beginning at a 2 ft. dia. plum tree, being located 200 feet south and 660 feet east of the NW cor of the SE1/4SW1/4 of Section …….., thence east 200 feet, thence north 200 feet, thence west 200 feet, thence south 200 feet to the POB.
In most cases this is not patently ambiguous. There is nothing on the face that is unclear.
Now along comes along the surveyor, whose job is to perform his quasi judicial function of finding the boundaries of the subject property. He should approach this just as a judge would. Assuming he can find not only the NW cor. of the SE1/4SW1/4, but he finds the plum tree. Is this the tree intended to be the POB? Is it located exactly 200 ft south and 660 ft east of the aliquot corner? What is the basis of bearing, magnetic, assumed from another line, parallel with the aliquot lines? Hmmmmmm. Now we have latent ambiguities. But what was the intent? Who knows, not every possibility of every detail that could impact the actual location was revealed in the description. Go back to the Brashier case.
“Initially, the court should seek to ascertain the intention of the parties by looking to the entire instrument.”
OK, we did that, the parties were conveying a 200 x 200 ft parcel. Clear as day isn’t it? Is that the intent of the document? Sure, that is the “what”, but where is the “where”? This is where we may find many latent ambiguities. Now what?
“Second, the court should look to the factual situation and the circumstances existing at the time the instrument was created.”
Okie Dokey, this is outside the deed. We need more evidence. Did the parties walk the property, did they know where the plum tree is, was the parcel marked before or after the sale, did they employ a surveyor or mark it out themselves, etc., etc., If we can’t find the intent from that evidence, then we move forward.
“Finally, the court may look to the subsequent acts of the parties to determine the correct construction of the instrument.”
This is where we will probably find our answers if we keep and open and fair mind, and thoroughly search for and sift evidence, and properly apply the relevant law(s). Were the found monuments, which do not measure exactly 200.0000000 feet apart, intended by the parties to be the physical manifestation of their intent? Were they accepted and relied upon by the parties? What extrinsic evidence can we use? What do the rules of construction say? What does the law in your state say?
As Lucas states in his book; intent is king, and ambiguities are the keys to the kingdom.
:good:
