The funny thing is I don't really know if this ever made it to a 'real' trial.?ÿ I was present at depositions at a law office and in chambers with a judge and a court stenographer.
The defendant's attorney wanted it heard as a property dispute since the old man was alive when he deeded it all to his kids.?ÿ The plaintiff's attorney tried to get the case heard in a probate court setting because they were contesting the will that mentioned the conveyances, even though the conveyances were recorded prior to the father's demise.?ÿ?ÿ
I learned the outcome later.?ÿ Apparently my testimony was what had been recorded at the depositions.?ÿ The judge made his remark to me at the only deposition I gave where he was present.
I remember I was cautioned by the defendant's attorney (who was paying my bill) to avoid stating I had "interpreted" the descriptions, or stating that the boundaries locations were "my opinion".?ÿ Those seemed like small details to me, but I soon realized a good attack attorney can cut you to shreds with your own words.?ÿ I believe that's their weapon of choice.?ÿ
I subdivide it like this.
What the Deed conveys is objectively determined from the written Deed.?ÿ It is rare for a Court to change the words of a Deed, they have strict rules regarding this.?ÿ So the south 53-1/3 acres would be precisely determined as such.?ÿ It can't be changed to the south 1/3 although common sense seems to dictate that.
The second part is where is the north line of the south 53-1/3 acres located??ÿ This is a question of fact and can vary somewhat.?ÿ The parties may take action to establish the words of the Deed upon the ground and this agreement, if made, becomes binding on the parties although it isn't entirely accurate.
I recently had fun with a description situated within a reservation that read:
The east five-eights of the southeast quarter of the northwest quarter of the southwest quarter of the northeast quarter,
the east five-eights of the north half of the northeast quarter of the southwest quarter of the southwest quarter of the northeast quarter,
the southwest quarter of the northeast quarter of the southwest quarter of the northeast quarter,
and the north half of the northwest quarter of the southeast quarter of the southwest quarter of the northeast quarter,
all in section 16.
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Excepting therefrom that portion which lies northwesterly of a line described as running in a straight line from the northeast corner of the southwest quarter of the northeast quarter of the southwest quarter of the northeast quarter of said section,
to the southwest corner of the east five-eights of the north half of the northeast quarter of the southwest quarter of the southwest quarter of the northeast quarter of said section.
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Made me grab a pad of grid paper, color pencils and my HP41.
I was happy to see existing improvements fit the field survey.
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It's been a while.?ÿ I remember the resulting e-w lines on my survey all had different bearings. This leaves me to believe I precisely calculated these lines to fit the appropriate acreage.?ÿ I do remember there was no evidence of occupation save the new fence 2/3 the way "up" the quarter.
That was back in the day when I used an HP48 with TDS.?ÿ I believe it had a "predetermined acreage" routine of which I was awfully fond.
Excellent job of ....................NOW! I need it NOW or I won't do a thing.?ÿ $200 is the fee.?ÿ Take it or leave it. (That's not exactly what he said but you must understand I was half asleep at the time.)
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I would use area since to the best of my knowledge the PLSS does not address such a thing.
Many years ago the crew I was a part of was tasked with surveying the "middle third" of a basically rectangular parcel described by metes and bounds. When we got to the site and had located most of the exterior of the parent parcel we realized that there were two east-west fence lines that essentially defined one-third of the parcel.
Area is probably what most land owners, and courts would expect, but then you still have to decide which line(s) to use to divide the areas.
I remember I was cautioned by the defendant's attorney (who was paying my bill) to avoid stating I had "interpreted" the descriptions, or stating that the boundaries locations were "my opinion".
So you just avoided making any statements about how you derived the boundaries? Seems to me that it's the surveyor's opinion, on the interpretation of any boundary; isn't that what we do?
I remember I was cautioned by the defendant's attorney (who was paying my bill) to avoid stating I had "interpreted" the descriptions, or stating that the boundaries locations were "my opinion".?ÿ Those seemed like small details to me, but I soon realized a good attack attorney can cut you to shreds with your own words.?ÿ I believe that's their weapon of choice.?ÿ
Anytime I have talked to an attorney or a judge,?ÿ my opinion, or interpretation is why they want to talk to me.?ÿ
I remember I was cautioned by the defendant's attorney (who was paying my bill) to avoid stating I had "interpreted" the descriptions, or stating that the boundaries locations were "my opinion".
So you just avoided making any statements about how you derived the boundaries? Seems to me that it's the surveyor's opinion, on the interpretation of any boundary; isn't that what we do?
You just avoid saying you interpreted the description.?ÿ As in "I placed the boundary on the ground where the description indicated"...avoiding any indication there might be more than one location.?ÿ Had I stated something like "The boundary shown on the survey is my interpretation (or in my opinion) of the description" this could be construed as an indication other boundary locations could exist.?ÿ
While this is actually always a consideration, admitting such to an attorney that wants the boundary in another location just gives his argument more fuel.?ÿ In the legal arena I believe a surveyor should always defend his derived boundary as the only possible location.
?ÿIn the legal arena I believe a surveyor should always defend his derived boundary as the only possible location.
That will open you up to an attack of your professional capability. "You mean you didn't even consider xxxx possibility?" For tho most part, unlike popular political opinions, judges still realise that the world isn't black and white. You are not in court to further your clients interest. You are in court to inform the judge of your professional opinion. Occasionally, a fact might be at issue, like was the monument in place on xxxx date, was the fence built with 21'st century materials, ect.. But usually a surveyor is there to express an opinion and explain why they came to their opinion.?ÿ