latent ambiguity

Wilson's Interpreting Land Records has a few pretty decent paragraphs, and several case citations.

Cheers,
Henry

> i am looking for a good discussion of latent ambiguity and the role of the surveyor when the facts indicated the presence of such a latent ambiguity.
>
> thanks for your help

Chapter 3, The Pincushion Effect, by Jeff Lucas will explain it quite adequately.

> i am looking for a good discussion of latent ambiguity and the role of the surveyor when the facts indicated the presence of such a latent ambiguity.

I don't know whether you're looking for a good discussion here or not, but generally I'd think that latent ambiguities in land descriptions are usually discovered by surveyors when the description is attempted to be located on the ground. It isn't apparent upon the face of the instrument. So the first role of the surveyor is to identify latent ambiguities and to make them known.

The second role of the surveyor is to attempt to resolve the ambiguity by (a) looking to all four corners of the writing, to attempt to determine what the parties intended from the writing and, failing that (b) to gather such extrinsic evidence as the surveyor thinks relevant and believes that a court would consider relevant to the question of the true meaning of the ambiguous terms. In both cases, the surveyor's role is to make known to his or her client both the opinion that he or she has formed and the evidence from which it was developed. If there are contrary arguments to be made, the surveyor's role is to make his or her client aware of the main alternate theories that would lead to alternate conclusions, even if he or she does not adopt them.

Thanks Kent, I can see why they hire you frequently for expert opinion. Okay imagine this fact set.
land subdivided in 1849
records lost to earthquake and fire in 1906
City and county mandate new survey
County engineer and division of survey comply and they create a new survey that is accepted by the board of supervisors in 1909 and filed for record in 1910.
Concurrently, the the county engineer/division of survey re-surveys all the blocks in the affected areas
The new deeds issued via a quite title action for burnt records do not account for the new results of the new survey activities conducted by the county.

all of the deeds that are created via the court action do not consider the results of the resurvey efforts.
the county surveyor tells you that the deeds with flat calls to the block corners are sacred and that they are to be held regardless of your survey results.

what is your opinion?

> the county surveyor tells you that the deeds with flat calls to the block corners are sacred and that they are to be held regardless of your survey results.
>
> what is your opinion?

My opinion is that the County Surveyor doesn't have the authority to tell you what you must hold to control your boundary.

CA PLSA §8766 b) The examination pursuant to this section shall not require the licensed land surveyor or registered civil engineer submitting the record of survey to change the methods or procedures utilized or employed in the performance of the survey, nor shall the examination require a field survey to verify the data shown on the record of survey.

Thanks Evan, I have been done that rabbit hole and the county surveyor's opinion is that the PLS act does not apply to subdivision maps.

I think you have an original boundary.

None of this occurred in a vacuum in 1910+/-.

The lot owner was clearing up the title plus someone laid out the boundaries from the county surveyor's work, presumably for construction. No one has objected since. It doesn't get much more established than that.

If the county surveyor can't see the light then I don't know that any amount of legal reasoning will sway him.

> City and county mandate new survey
> County engineer and division of survey comply and they create a new survey that is accepted by the board of supervisors in 1909 and filed for record in 1910.

Well, under the laws of California, surely no new survey was authorized to divest land owners of property rights they held at the time of the earthquake and fire. So, the "new survey" couldn't lawfully do more than reflect the existing rights, I wouldn't think, unless there was some special provision otherwise in the law under which it was made.

> Concurrently, the the county engineer/division of survey re-surveys all the blocks in the affected areas

Presumably, the county did have the authority to exercise control over the streets and the most fundamental aspect of that control was designating the locations of the streets. In that sense, the resurvey was of the streets, not the blocks. So, what resulted was, in effect the adjustment of the exterior lines of an existing block, not the interior lines.

> The new deeds issued via a quite title action for burnt records do not account for the new results of the new survey activities conducted by the county.

Yes, that would be consistent with the idea that the land within the block remained unchanged.

> all of the deeds that are created via the court action do not consider the results of the resurvey efforts.

The deeds are intended to reflect the rights that existed before the destruction of the records.

> the county surveyor tells you that the deeds with flat calls to the block corners are sacred and that they are to be held regardless of your survey results.

The principle is that writings are to be interpreted in light of the intentions of the parties as either deduced from the writing itself, from other writings referenced in the writing, or from extrinsic evidence. In this case the true meaning of the writings was to reflect conditions prior to the resurvey of the streets, it would appear. From the facts you give, I'd think that the call to a block corner is a call to the block corner as it existed prior to the resurvey of the streets.

At the time of the re-survey of the streets and new monument lines, ties were made to the block locations and surveys inside the blocks were made. These surveys showed walls foundations,houses and which lots were vacant if any. These features were tied to boundary lines and distances shown. Typically a fifty vara block is 412.5' by 275'. All of the blocks are larger than then nominal block based upon the re-survey. The surveys inside the block shows where the excess was distributed at the time.

Ambiguities? You Need To Discuss Latent & Patent Together

Because the patent ambiguity should be so obvious it sets up the next step, the less obvious.

In resolving a latent ambiguity, one must look at previous as well as contemporary adjacent documents. In general they will give you the only true solution.

Latent ambiguities in adjacent deeds is a real problem.

This discourse must include "Priority of Calls". Called area often forces only one solution, meaning it is not a latent ambiguity.

Paul in PA

> At the time of the re-survey of the streets and new monument lines, ties were made to the block locations and surveys inside the blocks were made. These surveys showed walls foundations,houses and which lots were vacant if any. These features were tied to boundary lines and distances shown. Typically a fifty vara block is 412.5' by 275'. All of the blocks are larger than then nominal block based upon the re-survey.

So, if I'm understanding that, the resurvey included ties to walls and foundations within the block, but those ties were not reflected in the deeds given to replace the records lost in the fire. Now the reviewing surveyor wants to apply the descriptions in the replacement deeds to define the boundaries of properties instead of the resurvey evidence of where those boundaries were actually occupied in 1910 or so?

How does the reviewer treat the existence of excess in the block? Is the excess so consistent as to suggest that a non-standard unit of measure was originally used when the blocks were laid out?

The McEnerney Act of 1906

Okay, I cheated and looked at the McEnerney Act of 1906 "An act to provide for the establishment and quieting of title to real property in case of the loss or destruction of public records"

McEnerney Act of 1906

The details of how exactly titles to land were to be quieted are interesting. Particularly the provisions of Section 5 of the act that deal with adverse possession:

Sec. 5. At the time of filing the complaint, the plaintiff shall file with the same his affidavit, fully and explicitly setting forth and showing

(3) that he does not know and has never been informed of any other person who claims or who may claim, any interest in, or lien upon, the property or any part thereof, adversely to him, or, if he does know or has been informed of any such person, then the name and address of such person. 1f the plaintiff is unable to state any one or more of the matters herein required, he shall set forth and show, fully and explicitly, the reasons for such inability. Such affidavit shall constitute a part of the judgment roll. 1f the plaintiff be a corporation, the affidavit shall be made by an officer thereof. 1f the plaintiff be a person under guardianship the affidavit shall be made by his guardian.

That being the case, if there are two constructions of the description used in the quiet title suit, the one that actually fits improvements in place or evidence of improvements in place at the time of the fire would be the construction that strikes me as the one most consistent with the law under which the title was quieted.

that's correct

Yep, that is my understanding. the reviewer claims that the McEnerney decree fixes the location of the property at an exact location of say 100 feet from the block corner and that no other evidence can be considered. My contention is that the decree fixed who owned WHAT and not the Where. I did not see anywhere in the act that there was a requirement to provide evidence of location. Further that there is no evidence that these decree descriptions considered the official survey, nor the resurvey of the blocks that were conducted contemporaneously with the Mc Enereny actions. I would add further that by law, surveys were to be made in conformance with the Official Block Books and the lines and monuments contained therein and upon completion of those surveys there were to be file in the official Block Book. This law dates from 1862. One of these Books was saved from the fire and it was used as a basis of resurvey for the 50 Vara District. The monuments in that book date to 1866 a mere 17 years after the original survey in 1849 that created the blocks in the 50 vara district. Based upon this fact, it appears that there was an effort to follow the law and an effort was made to return the positions to pre earthquake and fire locations. Naturally these efforts are efforts to retrace after a calamity,but these efforts were ordered and approved by the Board of Supervisors. It is probably reasonable to assume that the block surveys and the new monument map were used to rebuild. For the most part, when one obtains all the decree deeds in any given block, those deeds will add up to the nominal block dimensions of 412.5' by 275'.The block resurveys are generally all larger than the nominal block dimensions and this creates a latent ambiguity. My opinion is that if the proposition is true that parties relied upon surveys of the day and not the exact decree tie dimension to the block corner and that they have without controversy quietly enjoyed that position in the block all of this time(more than 100 years in some cases); the boundary has been established.Most of the block in this district are completely built out. Because the boundary has been settled, the matter is closed and it is therefore necessary that retracing surveyors recognize those established boundaries. I arrived at this opinion based upon the writings of Justice Cooley and Curtis Brown from his talk of 1979.

This whole discussion----Greensburg, Kansas

A few years ago the little town of Greensburg, Kansas was largely blown off the face of the Earth by a massive tornado. The rebuilding effort has attracted all sorts of outside groups who are pushing their various agendas, especially involving anything "green", which goes right along with the town name. Block after block was completely devastated. I was there a few months after the storm and saw just how complete the devastation was. The hospital was set up like the MASH tents on the old TV show about the Korean War.

A large group of surveyors swooped into town and did a massive resurvey of most of the town to help the rebuilding effort. I don't know exactly how this all happened and exactly who all took part, but, it did happen. I'm pretty sure that not every piece of pre-existing survey evidence was located, especially since most of the physical evidence directing you to where it might be found was gone gone gone. It would be simple for future surveyors to grab the new block corners and start slicing and dicing. But, what will happen when those same future surveyors start finding old survey monumentation and other evidence that disagrees with the shiny new monuments?

This whole discussion----Greensburg, Kansas

Just another unauthorized by the landowners resurvey of land. That's what surveyors do, unauthorized resurveys. So what else is new?

that's correct

>For the most part, when one obtains all the decree deeds in any given block, those deeds will add up to the nominal block dimensions of 412.5' by 275'.The block resurveys are generally all larger than the nominal block dimensions and this creates a latent ambiguity.

What I got out of my reading of the McEnerney Act of 1906 was that the parties claiming ownership also swore that there had been no adverse claims against the property. To me, that means that the possession lines were understood to be congruent with the descriptions. That is, if there was a 25 ft. wide building built on a 25 ft. wide lot, then the presumption would be, I'd think, that person applying for title and the adjoining claimants, all regarded the 25 ft. building as correctly located according to the descriptions in their applications for title.

In that light, the later resurvey of building foundations and other evidence of actual possession would be understood to identify the lines described in the judicial titles.

that's correct

I sent you the maps and diagrams.... thanks for your comments

This is a great (although not uncommon) example of regulatory creep. Sure, it seems to make sense to have reviewers and MTS and reasonable regulatory oversight. In reality, this mission creep or micromanagement is what results.

I see a constitutional problem with the regulations "as applied" in this case. A refusal to acknowledge or accept your opinion is a denial of due process to your client. If the county disagrees with your opinion, and if they have standing in the matter, then they should file an action and bring it before a judge. Unfortunately, it will probably work the other way. Because of the power of regulatory law, they will be presumed correct in their interpretation of the Act. Your client will probably be the one that needs to file an action and will get no compensation even if proved correct. So, the question becomes economic. Which is cheaper in the long run; go with the county determined boundary or fight it?

Brown's Boundary Control and Legal Principals