I guess I don't know if this will invoke much discussion about it, as I am just quoting from a book below. I assume this is legal. I photocopied the pages and "ocr"d it. It doesn't include a sketch or some citation references. I guess this is only food for thought. For proper credit, it is from Raymond Skeltons, "Boundaries and Adjacent Properties", starting on page 65, if you want to read the original text. I tried to fix some of the "Optical recognition" errors.
The below is much of how I developed a philosophy of the "seniority of calls" being somewhat of a "last resort" as I was discussing with Kris in the thread below.
I like the beginning from 1940 (?) "The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of the control of actual expressed intention Still discussing this today....modern times indeed.
All of the below is from quotation.
I. CONTROL OF INTENTION.
[§ 65.] (A) The Rule. --- The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of the control of actual expressed intention; as set forth by Judge Savage of Maine who said, "The cardinal rule for the interpretation of deeds and other written instruments is the expressed intention of the parties, gathered from all parts of the instrument, giving each word its due force, and read in the light of existing conditions and circumstances. It is the intention effectually expressed, not merely surmised. This rule controls all others."3 Judge Sanderson of California graphically outlined how this intention is to be ascertained when he ruled that in construing instruments, "the only rule of much value---one which is frequently shadowed forth, but seldom, if ever, expressly stated in books-is to place ourselves as nearly as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by the four corners, read it.'"
[ § 66.] Method of Application.- When the engineer pictures himself in the seat of the scrivener he should keep in mind that---
(1) The object of the construction of a deed is to discover and effectuate the intention of the parties.
(2) The intent ion is to be gathered from the words of the conveyance read in the light of surrounding circumstances.
(3) The conveyance is presumed to be made with reference to the conditions and state of the premises at the time, and no subsequent change will invalidate it.
(4) A construction which is consistent with all the terms of the description should be given, rather than one consistent with some of these terms.1
(5) It is the intention of the parties definitely expressed in the instrument that controls.
The great strength of this rule is illustrated in Wells v, Lagorio where the intention of the parties was established by their acts and understanding of the situation at the time of the transaction, and by the lines they marked on the ground and recognized as including the land conveyed." Wells owned sixty (60) acres more or less which he understood was bounded by HFEB. He sold the west half, thirty (30) acres more or less (HGDB) to one Lord, who afterwards conveyed to Lagorio; and defined it by establishing D midway between B and E, and G midway between H and F. Later he sold the east half thirty (30) acres more or less to Beckett and bounded definitely by GFED. Wells honestly believed that he had disposed of the entire property until Denby, who acquired the adjoining property JIA several years later had a survey made and advised Wells that the area AIHB was his. Lagorio and Beckett immediately claimed the area in question as theirs, and matter reached the courts. Evidence showed that the parties had taken possession as described, and that the intention of the parties had been given effect without consideration of the area AIHB in dispute, and the court ruled that it therefore belonged to Wells regardless of the deficiency in areas of the lots of Lagorio and Beckett.
[§ 67.] (2) Effect of Conflict.-The fact that there is a possible or actual conflict in the description does not nullify the rule, but rather makes its application without modification more pertinent, for when the calls of a description are definite and clearly expressed in the instrument, they should not be extended to conform to an intention which might be discovered from other parts 'of the description, or from extrinsic evidence, the chief purpose being to develop the true intent of the language used; and "If the descriptive words are with reference to actual facts, repugnant, or inconsistent with one another, and yet the intention of the parties can be ascertained, the misdescription will not vitiate the instrument ; but it will yield to the clearly ascertained intention."
[§ 68.] (3) Parol and Extrinsic Evidence as Aids.---Parol evidence is admissible to identify the property described in and conveyed by a deed, and to ascertain to what property the particulars in a deed apply.1t Furthermore, extrinsic facts pointed out in the description may be resorted to, and the property may be identified by extrinsic evidence as in the case of records of the county in which the land is situated. If the intention of the parties can be ascertained from the language of a deed with due consideration to the situation in which they were when the writing was made, parol or extraneous evidence is not admissible; but if in attempting to apply the language to the subject-matter two situations should be presented, either of which would answer the terms of the writing with equal certainty, parol evidence is admissible to prove which of the two situations the parties had in mind."
There's a great thread on the CA forum about intent from a few months ago. Some great info appears there on this from several that also post here.
http://www.californiasurveyors.org/clsaforum/showthread.php?t=3959&page=3
His use of the title "Engineer" should of course be understood in its historical context. I do not believe most Engineers today have any idea what Skelton is discussing and most Surveyors today would rightly object or reject to being called an Engineer. I have a copy of this book loaned to me. It is kept safely and respectfully on an upper shelf in my office.
It amazes me that any Land Surveyor that has even a modicum of real field experience would suggest that we can't determine intent.
That completely lacks basic common sense in my view.
Intent is everything, what is the point without intent?
Skelton's book is still the best on boundary surveying.
Skelton gave us a guiding light 81 years ago and we are still mostly ignoring him.
What I like best about Skelton is that he gives a lot of contrary examples which illustrates nothing is black and white when dealing with legal matters.
Statute of frauds
Well, sometimes it is appropriate to determine intent and sometimes it is not. When parcels have passed from the original owners and there are no conclusive signs of historical occupation and the deed has no latent ambiguities you can’t expect the current owners to abide by the previous owners' unwritten intent. They can only be guided by the words in the deed, regardless of whether the original grantee’s true intents were carried out by the description in the deed.
Intent of a deed - dave
> It amazes me that any Land Surveyor that has even a modicum of real field experience would suggest that we can't determine intent.
>
> That completely lacks basic common sense in my view.
>
> Intent is everything, what is the point without intent?
Dave,
I have to respectively disagree that intent is always an easy answer for a land surveyor. There was a huge discussion below about what the North 20 acres of a lot is. In my opinion, I can almost always find something wrong or ambiguous on any description. Of course some are 'no-brainers' narrowing it down to 1/2(?) of the descriptions. We also see many cases where different surveyors portray the intent of a description in different places: hence more than one monument for the same corner.
I would argue that intent is one of the questions that makes us 'professionals' because we often have to come up with a conclusion where there is no asolute answer.
Correction: a re-read your post. I agree that a licensed surveyor's job is to determine "intent" and therefore a surveyor 'can' determine intent. However, if you are implying that any surveyor with even a modicum of real survey experience will determine the same conclusion, I have to disagree.
Statute of frauds
> ... the previous owners' unwritten intent. They can only be guided by the words in the deed, regardless of whether the original grantee’s true intents were carried out by the description in the deed.
Just to clarify a point, it is not the unwritten intent that we are to decide and abide by, but only the intent as indicated by the written words in the deed. That is the correct path for land surveyors and is expressed well by Skelton above.
You may not have meant to indcate otherwise.
Stephen
Statute of frauds
I agree with what you said. It was "intent is everything" that I was concerned by.
Statute of frauds
Let me clarify.
I said, "intent" which is the thing then there is the process of how you find out what the thing is which I think we are all familiar with.
How intent is determined begins with the Deeds, of course.
If I say "intent is everything" I do not mean I have some sort of license to just do whatever I want to do. We may be locked into what the Deeds say or there may be some other physical evidence of the boundary location. I don't find it surprising that the boundary described by the Deed does not exactly match where the Deed says it is but it is still the boundary described by the Deed. There is no violation of the Statute of Frauds if the property owners establish their common boundary a little bit different from what the Deed says because no Deed description is perfect or absolutely complete and no original lay out of the Deed Boundary happens perfectly.
Statute of frauds
I think we are in agreement then.
I've been following this thread with interest since it started. Just too busy to assemble a thoughtful reply. The thing that initially caught my attention was the title of the thread, "Intent of a deed." That's a big misnomer right off the bat that's quite commonly seen. The deed is an inanimate object which can have no "intent." The same problem arises when we begin to talk about the "intent" of a monument, the "intent" of a fence line, or the "intent" of the surveyor (given, the surveyor isn't really inanimate). The "intent" we are attempting to derive is the "intent" of the "grantor."
The grantor's "intent" can be found in the 1) expressed words of the conveyance document, 2) the circumstances surrounding the document, 3) the existing conditions at the time of the document preparation, 4) the extrinsic evidence which gives meaning to the words of the conveyance, and 5) the subsequent actions of the parties made in reliance upon the document soon after its preparation. The "rules of construction" were developed to guide us in deriving the intent from the expressed words of the conveyance. Those words, however, don't exist in a vacuum. There are reasons and meanings for the words and an intent to be expressed by the words. A person's parol testimony cannot express a contrary intent to the words. The words still must be construed for their meaning, a process which requires consideration of evidence outside of the words.
For this reason, the courts have repeatedly said, "So, if a surveyor with the deed before him can, with the aid of extrinsic evidence if necessary, locate the land and establish its boundaries, the description therein is sufficient. 16 Am Jur Deeds, § 262, pp 585-586" Without the inclusion of "extrinsic evidence," the surveyor would never find a starting point, let alone discover a boundary.
JBS
Intent of a deed - dave
> > It amazes me that any Land Surveyor that has even a modicum of real field experience would suggest that we can't determine intent.
> >
> > That completely lacks basic common sense in my view.
> >
> > Intent is everything, what is the point without intent?
>
> Dave,
> I have to respectively disagree that intent is always an easy answer for a land surveyor. There was a huge discussion below about what the North 20 acres of a lot is. In my opinion, I can almost always find something wrong or ambiguous on any description. Of course some are 'no-brainers' narrowing it down to 1/2(?) of the descriptions. We also see many cases where different surveyors portray the intent of a description in different places: hence more than one monument for the same corner.
>
> I would argue that intent is one of the questions that makes us 'professionals' because we often have to come up with a conclusion where there is no asolute answer.
>
> Correction: a re-read your post. I agree that a licensed surveyor's job is to determine "intent" and therefore a surveyor 'can' determine intent. However, if you are implying that any surveyor with even a modicum of real survey experience will determine the same conclusion, I have to disagree.
Having discussed the issue at length with Dave, on line and otherwise, I'm quite certain that he did not mean that identifying the intent of a conveyance is easy or that only a modicum of field experience is all that is necessary to effectively do it. I believe that what he meant was that anyone with a modicum of field experience should recognize the need to determine intent in order to perform a boundary survey.
It is impossible to survey any boundary, described by any method, whether aliquot, m&b, lot/block, other reference to a map, whatever, without making a judgment as to what the intent was. Even those who adamantly argue that a surveyor has no business determining intent, those same who blindly follow the deed dimensions, in their studious avoidance of determining intent (lest they "act as judge") are deciding that the intent was to begin at whatever point they have identified as the POB, and have further decided that the intent was to strictly adhere to the recited dimensions according to whatever measuring equipment, method, and level of care and skill is being used by whichever surveyor happens to be on the ground at any given time.
Any time a surveyor sets a point, indicates a line on the ground, on a map, or in a description, that surveyor is stating his/her determination of intent, whether he/she admits it or not. It is unavoidable unless one never sets a point, indicates a line, draws a boundary on a map, or writes a description.