As a surveyor I prefer rules that are unwavering and absolute, such as 2 + 2 always equals 4. Legal principles are a disappointment. Just when I think I have it in hand, like a slimy eel it slips away.
For every legal principle I study, there seems to be an exception, and sometimes an exception to the exception. Then it gets even more confusing when legal principles are compared to surveying principles.
For example, surveying authorities say that an ambiguity in a deed should be resolved in favor of the grantee. The legal principle seems to be the same. But when I study the legal principle, I find a broader concept.
Where an ambiguity remains in any legal document after the application of fact and law, the document should be construed against the interest of the party drafting the document and in favor of the other party. There is a lot of wisdom in this. It's the person who drafts the document that makes the screw up. It's only right that the ambiguity is resolved against he who produced the document.
When the or broader concept is applied to a deed, it would seem that all ambiguities would be against the seller. That would be true, until you have a deed that was supplied by the buyer for the seller to sign. That would be a rarity for sure. But it probably turns the survey principle upside down.
Comments welcomed as well as other exceptions to survey principles.
The one constant is to never use never.
When the or broader concept is applied to a deed, it would seem that all ambiguities would be against the seller. That would be true, until you have a deed that was supplied by the buyer for the seller to sign. That would be a rarity for sure. But it probably turns the survey principle upside down.
I would say.. not necessarily.
The principle that "ambiguity in a deed should be resolved in favor of the grantee" comes from a contract law rule of construction know as contra proferentem, which translates as against the offeror, not the drafter. Even if the document were drafted by others, the offeror remains the same and since they are signing the deed, they are the party most capable of mitigating that ambiguity prior to its execution
It's the illusion that we're in control that misleads us into thinking that all problems can be solved. This is exacerbated by our preference for simplicity over complexity. It might be easier to understand legal concepts if starting from an assumption that since there's seemingly no limit to complexity, there can be no limit to the number of possible exceptions to precedent.
In contrast to our legal system, it's far less complicated under a dictator or monarch with absolute power. In Stalin's USSR, all you needed to know about the law was to zealously toe the party line and conceal wealth and merit. I'll take complexity over that any day of the week. Conciseness and simplicity are great metrics for writing law, but adjudication should be open to nuance and complexity.
Justice Cooley reminds us of that part of our job is centered around the actions of humans and humans are complicated. This is why I ask myself before the conclusion of a boundary project, "Did the parties involved gain or suffer through my involvement?" If I think they've suffered or will suffer, I'll explore alternative ethical solutions. The spirit of Cooley and the existence of numerous exceptions to legal precedents provide PLSs with enough gray area to justify keeping the peace between neighbors even at the cost of geometric harmony such as preserving a straight line between ancient monuments.
That would be true, until you have a deed that was supplied by the buyer for the seller to sign.
I have not heard of anyone caring who wrote a deed. Or any other document for that matter.
The application of rules is just a lazy way of avoiding using judgement. I would rather forgo all rules in favor of judgment than forgo all judgement in favor of rules.
The application of rules is just a lazy way of avoiding using judgement.
A pet peeve of mine is how in some survey texts and educational classes the "Rules of Construction" are overemphasized when the courts clearly have said that they are a method of last resort (after professional judgment). They would be better named "decision matrix of last resort"
The Alaska Courts put it very succinctly
Our Three–Step Approach to Deed Interpretation
The touchstone of deed interpretation is the intent of the parties, and where possible, ... the intentions of the parties [will be] given effect. We have instructed that “a three-step analysis should be employed in interpreting a deed.”
The proper first step in deed construction is to look to the four corners of the document to see if it unambiguously presents the parties' intent....” If a deed when “taken as a whole” is open to only one reasonable interpretation, the interpreting court “need go no further.
Once a court determines that a deed is ambiguous, “the next step in determining the parties' intent is a consideration of the facts and circumstances surrounding the conveyance.” We have noted that “this inquiry can be broad, looking at ‘all of the facts and circumstances of the transaction in which the deed was executed, in connection with the conduct of the parties after its execution.
Finally, only if the parties' intent cannot be discerned after an examination of the deed itself and the extrinsic evidence surrounding its creation should a court resort to rules of construction. The purpose of rules of construction ... is not to ascertain the intent of the parties to the transaction. Rather, it is to resolve a dispute when it is otherwise impossible to ascertain the parties' intent.
I read something last week that inspired me to start this discussion. "A young man knows the rules, but an old man knows the exceptions." Maybe I like this just because I'm in my eighties.
The point I'm trying to make is that in relying totally on Principles of Surveying, you may not be seeing the whole story.
I wondered if anybody would reply to this discussion. And I appreciate those who have responded even if they disagree.
When the broader concept is applied to a deed, it would seem that all ambiguities would be against the seller. That would be true, until you have a deed that was supplied by the buyer for the seller to sign. That would be a rarity for sure. But it probably turns the survey principle upside down.
I would say.. not necessarily.
The principle that "ambiguity in a deed should be resolved in favor of the grantee" comes from a contract law rule of construction know as contra proferentem, which translates as against the offeror, not the drafter. Even if the document were drafted by others, the offeror remains the same and since they are signing the deed, they are the party most capable of mitigating that ambiguity prior to its execution
"I would say.. not necessarily."
I agree because I have no case law on point. Thus there is an element of speculation on my part. And secondly, it appears that there is an exception to the exception.
"The principle that "ambiguity in a deed should be resolved in favor of the grantee" comes from a contract law rule of construction know as contra proferentem, which translates as against the offeror, not the drafter."
A literal translation of contra proferentem is indeed “against the offeror.” But the operation at law is against the drafter.
From https://www.law.cornell.edu/wex/contra_proferentem
Contra proferentem is a rule of contract interpretation that states an ambiguous contract term should be construed against the drafter of the contract. The term contra proferentem is derived from a Latin phrase meaning “against the offeror.”
emphasis added
"Even if the document were drafted by others, the offeror remains the same"
A buyer can offer to buy real estate (and furnish the deed) as easily as the seller can do the same.
"and since they are signing the deed, they are the party most capable of mitigating that ambiguity prior to its execution"
I agree that a landowner probably has a superior knowledge of the land he owns. But a buyer making an offer on part of the seller's land has a superior knowledge of what he wants to buy.
. . . And always avoid always.The one constant is to never use never.
There's nothing that's certain except nothing (which is certain)
. . . And always avoid always.The one constant is to never use never.
There's nothing that's certain except nothing (which is certain)
except change, in which case nothing ever changes.
Just because I'm paranoid, doesn't mean they aren't out to get me.
Just stating the facts. Not intended as political.
https://slate.com/news-and-politics/1998/09/bill-clinton-and-the-meaning-of-is.html
Justice Cooley reminds us of that part of our job is centered around the actions of humans and humans are complicated. This is why I ask myself before the conclusion of a boundary project, "Did the parties involved gain or suffer through my involvement?" If I think they've suffered or will suffer, I'll explore alternative ethical solutions. The spirit of Cooley and the existence of numerous exceptions to legal precedents provide PLSs with enough gray area to justify keeping the peace between neighbors even at the cost of geometric harmony such as preserving a straight line between ancient monuments.
"existence of numerous exceptions to legal precedents"
It would be an arbitrary and capricious act for courts to make numerous exceptions to legal precedents. I don't think that can be shown to be true. On the other hand, courts have carved out numerous exceptions to general principles, which become precedents for use in future cases. Court decisions are not rooted in fairness to the parties, for fairness lies in the eye of the beholder. Rather, courts seek to render uniform decisions based on precedent.
...even at the cost of geometric harmony such as preserving a straight line between ancient monuments.
Someone should show that to the paper pincushioners out there.
The spirit of Cooley and the existence of numerous exceptions to legal precedents provide PLSs with enough gray area to justify keeping the peace between neighbors even at the cost of geometric harmony such as preserving a straight line between ancient monuments.
I get that and out parcels calling to a long established line NEVER have the pipe or pin or axle "on" the line. These are the instances where, yes, everyone knows that pin or pipe is their corner and I would break the longer title line to hold the evidence. However, in the wide open of farmland I dont think i would do that for a fence meandering from post to tree to post. I would hold the ends of the lines as i located them.
@james-fleming who was it in Carroll and Frederick back in the 40's and 50's that was know for saying "People know where they own."?
I get that and out parcels calling to a long established line NEVER have the pipe or pin or axle "on" the line. These are the instances where, yes, everyone knows that pin or pipe is their corner and I would break the longer title line to hold the evidence. However, in the wide open of farmland I dont think i would do that for a fence meandering from post to tree to post. I would hold the ends of the lines as i located them.
I agree with that but I'd label each end of the fence with a letter and include a note similar to, "The boundary between A and B is the existing barbwire fence."
As a newish party chief, I was fortunate to get perform a bunch of tricky boundary surveys throughout NC's slice of Appalachia. It was rare to find an actual boundary monument so I'd have to locate ridges, heads of hollows, and as many locust fenceposts as possible while making my way around old tracts. I retraced some surveys by a PLS who would call out each and every fencepost. As I tend to lean toward the perfectionist end of the spectrum, it was a instructive exercise for me to plot a deed with eighty-six boundary calls along a generally straight 1500ft boundary. That's where I began to think perfect is the enemy of good and decided that a best fit line works just fine.
@james-fleming who was it in Carroll and Frederick back in the 40's and 50's that was know for saying "People know where they own."?
You got me. But in his slow country voice Mike VanSant once said to me when we were discussing a boundary determination "Now Jim, that pipe is there for a reason"
Before I go on with other exceptions where the principles of surveying are at odds with principles of law, I have some more observations of ambiguities in conveyances.
A surveyor might go through his whole career without encountering where a buyer drafts and presents a deed for the seller to sign. But where government acquires a right-of-way by conveyance, it is almost a certainty that government drafted and supplied the deed for a landowner to sign. It is my opinion in consideration of the concept 'contra proferentem' all ambiguities in the conveyance should be resolved against the government and in favor of the grantor landowner.
There was a time shortly after I was licensed in the 1970s when I accepted the records of the DOT to be the controlling element in the right-of-way location. I learned that once the DOT obtained a landowners signature on a conveyance, the DOT would sometimes place the right-of-way wherever they wanted. Thereafter I started my surveys from the conveyance and applied principles of law with ambiguity in favor of the landowner. A lot of the government's reliance on DOT records is a bluff. Push back and they fold.
Should surveyors always base their surveys on Principles of Surveying or is there room for consideration of principles of law?
To introduce the next look at this question, I would like to start with a short quiz.
Facts.
1. Jones owns the SE1/4 SW1/4.
2. In 2021, Jones sells a tract in the east part to Smith by Warranty Deed with a metes and bounds description from the NE corner.
3. In 2022, Jones sells his remainder of the SE1/4 SW1/4 to Brown by Warranty Deed with a metes and bounds description from the SW corner.
4. In 2024, Smith sells his tract back to Jones with the same land description in the deed Jones to Smith.
5.In 2025 you are hired by Brown to survey his tract and you find the description of the Brown and currant Jones deeds overlap by a sizeable amount.
Using the survey principle 'Junior Senior Rights', the correct location of the boundary common to Brown and Jones would be:
A. Consistent with the 2021 deed Jones to Smith.
B. Consistent with the 2022 deed Jones to Brown.
C. Half the distance from the overlap lines.
D. Split the overlap by prorating the Brown and Jones ownership.
E. None of the above.
Having selected the correct location by Junior/Senior Rights, is this the correct legal boundary between
Brown and Jones, yes or no?
Comments welcome! But first please answer A, B, C, D, or E and yes or no.