Generally, where a contract or deed are unambiguous on their face, extrinsic or parol evidence will not be admitted to vary the terms of the deed or contract.
Except that they will, ha ha.
I was looking into California's Practical Location Doctrine (where a grantor conveys a portion of his tract and marks the new boundary on the ground, that will prevail against the description in the deed). It turns out part of the problem with this is it conflicts with the parol evidence rule.
An important case, French v. Brinkman, 60 Cal. 2d 547 (1963), is cited by many subsequent cases as allowing an exception to the rule prohibiting extrinsic evidence modifying an unambiguous contract (including cases outside of real property). French seems to require a mutual mistake but another case citing it more or less says words are just ambiguous unlike mathematical formulas and besides you need testimony to determine if interpretation of the grant is susceptible to more than one meaning...
From Murphy Slough Assn. v. Avila, 27 Cal. App. 3d 649 (1972):
"As a point of departure we must first decide the propriety of the trial court's considering evidence extrinsic to the deed in determining the nature of the interest conveyed.
In Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, at page 37 [69 Cal.Rptr. 561, 442 P.2d 641, 4 A.L.R.3d 1373], our Supreme Court ruled that the test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible. [Citations]. The court stated that a rule that would limit the determination of the meaning of a written instrument to its four corners merely because it seems to be clear and unambiguous would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained.
"If words had absolute and constant referents, it might be possible to discover contractual intention in the words themselves and in the manner in which they were arranged. Words, however, do not have absolute and constant referents. 'A word is a symbol of thought but has no arbitrary and fixed meaning like a symbol of algebra or chemistry, . . .' ( Pearson v. State Social Welfare Board (1960) 54 Cal.2d 184, 195. . . .) The meaning of particular words or groups of words varies with the '. . . verbal context and surrounding circumstances and purposes in view of the linguistic education and experience of their users and their hearers or readers (not excluding judges) . . . . A word has no meaning apart from these factors; much less does it have an objective meaning, one true meaning.' (Corbin, The Interpretation of Words and the Parol Evidence Rule (1965) 50 Cornell L.Q. 161, 187.) Accordingly, the meaning of a writing '. . . can only be found by interpretation in the light of all the circumstances that reveal the sense in which the writer used the words. The exclusion of parol evidence regarding such circumstances merely because the words do not appear ambiguous to the reader can easily lead to the attribution to a written instrument of a meaning that was never intended. . . .' [Citations.]" ( Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., supra, 69 Cal.2d 33, at pp. 38-39.)
If the trial court decides after considering the extrinsic evidence that the language of the instrument in the light of all the circumstances is susceptible of either one of the two interpretations contended for, extrinsic evidence relevant to prove either of such meanings is admissible. [citations].
That this interpretive rule is applicable to deeds as well as to contracts and wills, see French v. Brinkman (1963) 60 Cal.2d 547, 552-553..."
"That this interpretive rule is applicable to deeds as well as to contracts and wills, see French v. Brinkman (1963)..."
You tell me , Dave. I'm behind too many Torpedos at this point to look it up.
Has this concept ever been applied to deed construction?
Don
Yes, numerous times, although a lot of times they don't say so in so many words.
Take it easy on the Torpedoes, leave some for me.
From Murphy Slough Assn. (above) "Having decided that the extrinsic evidence is admissible for the purpose of determining whether the deed is susceptible of an interpretation contrary to its "plain meaning," we next turn to a consideration of the language of the deed in the light of the evidence."
P.G. & E. v. G. W. Thomas Drayage, 69 Cal. 2d 33 (1968):
Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co., 69 Cal. 2d 33 (1968):
"When the court interprets a contract on this basis, it determines the meaning of the instrument in accordance with the ". . . extrinsic evidence of the judge's own linguistic education and experience." (3 Corbin on Contracts (1960 ed.) [1964 Supp. § 579, p. 225, fn. 56].) The exclusion of testimony that might contradict the linguistic background of the judge reflects a judicial belief in the possibility of perfect verbal expression. (9 Wigmore on Evidence (3d ed. 1940) § 2461, p. 187.) This belief is a remnant of a primitive faith in the inherent potency 2 and inherent meaning of words. 3
FOOTNOTES
2 E.g., "The elaborate system of taboo and verbal prohibitions in primitive groups; the ancient Egyptian myth of Khern, the apotheosis of the words, and of Thoth, the Scribe of Truth, the Giver of Words and Script, the Master of Incantations; the avoidance of the name of God in Brahmanism, Judaism and Islam; totemistic and protective names in mediaeval Turkish and Finno-Ugrian languages; the misplaced verbal scruples of the 'Precieuses'; the Swedish peasant custom of curing sick cattle smitten by witchcraft, by making them swallow a page torn out of the psalter and put in dough. . . .' from Ullman, The Principles of Semantics (1963 ed.) 43. (See also Ogden and Richards, The Meaning of Meaning (rev. ed. 1956) pp. 24-47.)
3 "'Rerum enim vocabula immutabilia sunt, homines mutabilia,'" (Words are unchangeable, men changeable) from Dig. XXXIII, 10, 7, § 2, de sup. leg. as quoted in 9 Wigmore on Evidence, op. cit. supra, § 2461, p. 187."
AND
"A rule that would limit the determination of the meaning of a written instrument to its four-corners merely because it seems to the court to be clear and unambiguous, would either deny the relevance of the intention of the parties or presuppose a degree of verbal precision and stability our language has not attained."
Sounds like the long way around the barn to admit extrinsic evidence to solve a latent ambiguity............
I'll have to read more later when not sipping on so many Beam and coke's...........
Thanks, Doin'
I'm glad I'm not the only one who can't concentrate right now:'(
Don
I'm sipping on Bulleit Rye, neat.
Thanks, Doin'
Doin'? Wow! That is a blast from the past!
> .... Beam and coke's...........
Ain't had one them in decades. Haven't mixed whiskey or bourbon with anything in a lonoooong time.
Last Beam I had was a couple little bottles of "Devil's Cut" someone brought me a few weeks ago. Pretty good. Right up there with "Gentleman Jack" or JD's "Single Barrel".
The doctrines of Practical Location and Practical Construction are quite similar in their presentation, both favoring the same result but under slightly variant conditions. The doctrine of Practical Construction is a means for explaining terms contained in the title document through the actions of the original parties to the conveyance. The doctrine of Practical Location relies solely upon the implications drawn from subsequent actions by subsequent or unknown parties acting outside of the original document. Where the original conveyance document resulted in some latent ambiguity, subsequent parties resolve that ambiguity through a good faith effort to locate the boundaries according to their perceived understanding of the intent of the original parties.
>“To discover the intention of a grantor of land, the district court may consider, among other things, "the facts and circumstances attending the execution of the deed, the practical construction of the deed by the parties and their grantees, and the preliminary negotiations of the parties." Sandretto v. Wahlsten, 124 Minn. 331, 334, 144 N.W. 1089, 1090 (1914); see also Cannon, 44 Minn. at 298, 46 N.W. at 358 (stating that the district court may "place itself in [the grantor's] place, and then consider how the terms of the instrument affect the subject-matter").” Winskowski v. Bruss, No. A07-1846 (Minn.App. 07/29/2008)
>“The courts have recognized such boundaries because the early surveys in the state were most uncertain, and in later years the monuments and landmarks they described could not be found. (See Loeb, The Establishment of Boundary Lines by Practical Location, 4 Cal. L. Rev. 179.) In the present case the boundary lines could not be ascertained from the early surveys, for the monument determining the northern end of the boundary and most of the other landmarks cannot be found. Given the difficulties of fixing the boundaries anew according to the old surveys, the trial court properly recognized a line that has served for many years as the practical boundary.” Hannah v. Pogue, 147 P.2d 572 (Cal. 1944)
Some state courts have clearly defined the two doctrines while other states have viewed the doctrine of Practical Location as an umbrella encompassing boundaries established by written, oral and implied agreements.
JBS
Thanks, Doin'
So ok, I'll date myself. I had to look up what a torpedo was.
I like it...anything you want it to be.
Here's one for you to avoid... "Toxic Waste"
It's what the name implies. Last time I accept a free drink from a bartender.
Torpedo
The Torpedo I'm talking about is a very good IPA from Sierra Nevada. I recommend it.:beer:
Don
In California there is practical location (or boundary) and then there is the Doctrine of Practical Location which is different. The Doctrine refers to a case wherein a Grantor grants out a portion of his land bounded physically not exactly in accordance with the description.
Hannah is an Agreed Boundary case although I don't think it could be decided that way today. Since it involves a Section line I doubt the California Courts would allow Practical Location although they may allow practical location per another principle of law. Volume 4 of the California Law Review is available on Google books. The article allows for practical location under 1) Parol agreement, 2) Estoppel or 3) Adverse Possession. There is no mention of a separate Doctrine of Practical Location.
>The article allows for practical location under 1) Parol agreement, 2) Estoppel or 3) Adverse Possession. There is no mention of a separate Doctrine of Practical Location.
Yes. CA falls into the category of states which seem to view practical location as an umbrella which encompasses the separate boundary establishment doctrines of agreement and estoppel. There are three law review articles which discuss the doctrines and their application. Many discussions and reviews of the boundary establishment doctrines apply the words "practical location" in a categorical sense encompassing the separate doctrines.
"The Establishment of Boundary Lines by Practical Location",Joseph P. Loeb, CA Law Review, March 1916, holds the view of practical location as encompassing "(1) Lines established by agreement, express or tacit; (2) Lines established by estoppel; (3) Lines established through the acquisition of title by adverse possession."
"The Practical Location of Boundaries", Olin L. Browder, Jr., MI Law Review, February 1958, also limits its use of the term "practical location" as "a generic term to refer to the several rules, other than adverse possession, which have been announced for the determination of boundaries on the ground."
"The Law of Practical Location of Boundaries and the need for an Adverse Possession Remedy", James H. Backman, BYU Law Review, 1986, restricts their use of the term in the generic sense referring to the boundary establishment doctrines of agreement, acquiescence and estoppel.
The practical construction doctrine is applied in numerous contract settings including written, oral and implied contracts which makes it applicable to the location of boundaries which are contractually established. The application as a rule of construction serves the purpose of providing the construction of the language of the deed by viewing the evidence of what the parties have done subsequent to their agreement as evidence of the parties intent.
"'The court will, if necessary, put itself in the place of the parties, and read the contract in the light of the circumstances surrounding them at the time it was made, and of the objects which they then evidently had in view. So, also, the acts of the parties themselves, indicative of their construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement. And in this regard it makes no difference whether such acts are contemporaneous or subsequent.'" Street v. Chicago Wharfing Co., 157 Ill. 605, 613, 614.
I'm not sure that attributing the terms "doctrine, principle or rule" really makes their application any less generic. "Practical Construction" seems more directed to construing the intent of the parties to the deed, contract or agreement between the parties by incorporating evidence of their actions into the analysis. "Practical Location" seems more directed to construing the intent of the not in direct proximity to the deeds who's actions become the best available evidence to determine the result of their subsequent agreement or reliance upon former actions of others outside of the context of the deed.
Although there may be a fine line of distinction between the two doctrines, the end result is the same. The actions of the landowners may be considered paramount to the determination of the boundary location whether used as an aid to construe their original intent or to construe the actions of subsequent purchasers intending to settle a dispute or uncertainty arising from an ambiguity in the deed.
JBS
from French v. Brinkman, 60 Cal. 2d 547 (1963):
"(1) under the doctrine of "practical location," which provides that where the owner of a larger tract conveys a parcel thereof that he has delineated on the ground by fixed monuments, and the parties rely on such monuments as establishing the intended boundaries, the latter will prevail over any differing description in the deed (cf. Nebel v. Guyer, 99 Cal.App.2d 30, 32 [1] [221 P.2d 337]; Thiel v. Damrau, 268 Wis. 76 [66 N.W.2d 747, 750 [1]]; Note, Boundary Litigation in California (1959) 11 Stan.L.Rev. 720, 733"
I haven't found a more recent case citing it this way but I haven't looked too much yet though. Most discuss agreed boundaries.
They cite the Stanford Law Review which is presumably a rival of the California Law Review (Oh well it's beer, beer, beer that makes me feel so queer, on the Farm! On the Farm! On the Leland Stanford Junior Farm! -old Cal drinking song.)
Kraus v. Griswold, 232 Cal. App. 2d 698 (1965) seems to be the last case which discusses practical location as a separate doctrine.
