from the California forum...

You won't likely find much case law that even mentions survey maps. Best to ignore the map and interview the parties to the original deeds and discover the circumstances and intentions of those parties. The surveyor who did the may have some insite.

> My question: Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?

I would say No. An RS is a singular opinion on where a line should run or a corner should fall and has absolutely nothing to do with indicating the intent of the parties to a division of land.

I read the CLSA forum post Dave and it seems that the OP on that board is dealing with an RS that was done 41 years ago. It would be helpful if the RS and the deed descriptions were posted.

Paul, I would call it an Original Survey, not an opinion.

That is just based on what little we know from a post on an internet forum.

> >I am working on a project where a local jurisdiction vacated a portion of ROW in exchange for the adjacent landowner dedicating a portion of land to the local jurisdiction. Legal descriptions were drawn up for the land being exchanged. Shortly after this occured (within a couple months) a ROS was filed by the same company that wrote the legal descriptions for the land being exchanged. The legal descriptions do not reference the ROS, though the ROS makes reference to the recording information of the legal descriptions. It appears that the intent of the ROS was to show the land being exchanged.
> >
> >Here's the problem: The legal descriptions for the deeds do not match the ROS that was done. The legal descriptions have serious flaws. Without the ROS as evidence just reading the legal descriptions of the land to be transfered results in a SUBSTANTIALLY different solution than what is shown on the ROS.
> >
> >Lines of occupation and other physical evidence support that which is shown on the ROS.
> >
> >My question: Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?
>

There is case law about surveys being performed and descriptions written at or near the same time. The courts have held they are part of the same transaction. I'll find a few when I get time.

> >Lines of occupation and other physical evidence support that which is shown on the ROS.
> >

That is what controls - what was done on the ground. It appears this is the best available evidence of the INTENT of the landowners. Remember, bearings and distances recited in descriptions are nearly the lowest form of evidence - far below the actual lines run and marked on the ground. And yes, the ROS is evidence of intent, as are the descriptions. You have to look at all the evidence and weigh it.

I'd say that occupation and other physical evidence on the ground that closely matches the ROS outweighs apparently erroneous descriptions.

> You won't likely find much case law that even mentions survey maps. Best to ignore the map and interview the parties to the original deeds and discover the circumstances and intentions of those parties. The surveyor who did the may have some insite.

You are likely to find case law referencing ROS's in recording states, but not in non-recording states. In California the first two that come to mind are Reid v. Dunn , 201 Cal.App.2d 612 see Tremper v. Quinones (2004) 115 Cal.App.4th 944. There are many more. Once a survey is in the public record it acquires significantly more legal dignity then a survey squirreled away in a land owners filling cabinet.

from the California forum...David

> Paul, I would call it an Original Survey, not an opinion.

Ok, it's an original survey. It is still a quasi legal document with a one party signature that is not even notarized. The county signature just does not count.

Every RS I do is an original, my original. That means very little.

The question was : "Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?"

And the (my) answer is still No. They only way an RS can show true intent of the parties dividing land is if the deeds make reference to specific monuments which the RS found after the deeds recorded.

I would like to see both documents though.

> >Shortly after this occurred (within a couple months) a ROS was filed by the same company that wrote the legal descriptions for the land being exchanged. The legal descriptions do not reference the ROS, though the ROS makes reference to the recording information of the legal descriptions. It appears that the intent of the ROS was to show the land being exchanged.
> >
You are looking at what is considered a "contemporaneous" document. The ROS is 1) prepared by the same authors as the descriptions, 2) prepared at or near the time of the original conveyance, and 3) makes specific reference to the recorded document. All are evidence of contemporaneous preparation which means they are part of the same transaction and can be considered together as a whole.
> >The legal descriptions for the deeds do not match the ROS that was done. The legal descriptions have serious flaws. Without the ROS as evidence just reading the legal descriptions of the land to be transferred results in a SUBSTANTIALLY different solution than what is shown on the ROS.
> >
If the descriptions are "flawed" (ambiguous), then extrinsic evidence can be sought to resolve the ambiguities. This principle allows the evidence depicted in the ROS to be considered even if the ROS was not contemporaneous. The doctrine of practical construction views the evidence of what the parties have done subsequent to the transaction when they presumptively knew what the intent of the transaction was, followed by their mutual acceptance of the results of their actions, are better evidence of what was intended than the ambiguous words of the documents. Their actions explain their words.
> >Lines of occupation and other physical evidence support that which is shown on the ROS.
> >
Physical evidence is more meaningful than words on paper (one of the key reasons that monuments control). You've got evidence that the ROS is more likely to be correct than the written words which contain ambiguities. The physical evidence can be used to corroborate or lend more credence to the ROS and to resolve the ambiguities.
> >My question: Does the ROS indicate the intent of the parties, even though no reference is made to ROS in the transactions?
>
Absolutely, YES. You're dealing with conflicting evidence. You've got ambiguity in the documents which opens the document to extrinsic evidence used to explain the ambiguity. You turn to the ROS which is not only contemporaneous, but resolves the ambiguity. The ROS better indicates the intent of the parties.

Legal principles are designed to bring resolution to conflicting evidence. When they are properly understood and applied they will bring resolution.

JBS