"It should also be noted that any rules for awarding priorities, as for example, monuments over distances, have been developed as a means for determining the intention of the parties and are rules of construction rather than rules of property. (3 American Law of Property, § 12.115.)" -Hyman v. Haun, 191 Cal. App. 2d 891 (1961)
> The where being dependent upon the facts doesn't take it out of the realm of the law. The law is everywhere here. The law must be applied to the facts. The where is determined by boundary law. It's not as simple as following the footsteps of the original surveyor or of determining the most certain of conflicting elements, at least not in my state. The law is much more comprehensive than this. There are other elements to the where, or facts, needing application of the law, like repose, agreement and landowner actions over time, facts so to speak, that the law when applied determine the where of a boundary. The where being dependent upon the facts doesn't relieve a surveyor from knowing and applying all of the law to determine where a boundary is. The conflicting elements of the technical math is the bottom of the barrel, the most simple facts. If you are only looking at these facts you probably don't have but a clue as to where, the law applied to the facts, determine a boundary is, at least not in my state, may be different elsewhere.
:good: Well stated.
> "It should also be noted that any rules for awarding priorities, as for example, monuments over distances, have been developed as a means for determining the intention of the parties and are rules of construction rather than rules of property. (3 American Law of Property, § 12.115.)" -Hyman v. Haun, 191 Cal. App. 2d 891 (1961)
:good: Yepper. The rules of construction (which came about, for the most part, thru common law) are only part of the many laws that govern boundary determination that a surveyor should be applying to the facts to develop a professional opinion of where the boundary is located.
> "It should also be noted that any rules for awarding priorities, as for example, monuments over distances, have been developed as a means for determining the intention of the parties and are rules of construction rather than rules of property. (3 American Law of Property, § 12.115.)" -Hyman v. Haun, 191 Cal. App. 2d 891 (1961)
I'd think that probably the better statement would be that the rule is to prefer the more certain elements of a description over those that are less certain and that the usual statement of the order of priorities is based upon what is commonly found to be the case.
"It depends on what "is" is.........Billy "Blue dress" C.
California CCP 2077 (excerpt):
One—Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.
I think that is declarative of existing common law in 1874 when it was written.
That is not my intention, I assure you.
> California CCP 2077 (excerpt):
> One—Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.
>
> I think that is declarative of existing common law in 1874 when it was written.
That doesn't sound as if it would cover the question of whether, in the absence of evidence to the contrary, courses or distances recited in some old survey description should be considered more reliable, though. I take it to deal with that which is manifestly false or completely inconsistent with the rest of a description.
Based upon the statement givens- Lot 100 Peaceful Acres.