Senior rights, pin-holders, etc, Maine

This is about as profound as it can get:

The trial court noted that "Knowles is particularly appropriate law because it is based on recognition of the fact that compasses vary, surveying instruments can be imperfect and if they are perfect, then surveyors can be imperfect and to compound the problem, scriveners can be imperfect."

Thanks Brian.

Good solid Maine law. Note incidentally that Knowles is quoted in its entirety early in the 2d edition of Brown's Evidence and Procedures for Boundary Location, "because of the importance of this case in the northeast."

Note also in the present case summary:

"Although in Knowles the parties' intent was manifested by the placement of a fence along the boundary line, the intent here is evidenced by the blazing of a tree and the placement of a basketball hoop, lawn and pins. The court did not err in reforming the deed."

This was precisely the sort of manifest intent of the parties (plural) that was not in evidence in Lex's fact set yesterday. If the line between the pipes in that case had been marked and used as was the line in the Maine case, or if all of the parties had joined in establishing the pipes as corners (with or without a surveyor), I think few of us would have argued against the pipes.

From a few of your previous posts:

"I've been hunting for a Maine case, or even just a Maine transaction, where a survey was performed just prior to, and in connection with, an outconveyance, but was not even hinted at in the deed, and where no plan was recorded. No luck so far."

"I've gotta run so I can't dig out a cite, but I believe that in Maine the courts will only allow extrinsic evidence to clarify an ambiguity in the deed. There is nothing ambiguous about the deed language in the fact set."

Maybe I was mis-understanding, but I think your assertions were that latent ambiguities and non-called for monuments were treated very differently in Maine than most of the rest of the country, but I think this case shows that Maine boundary law is indeed very similiar to most states.

My read of the cited case and also its cite of Taylor vs. Hansen is that the Doctrine of Latent Ambiguity is alive and well in Maine. i.e., When what you find on the ground is at odds with an unambiguous deed, extrinsic evidence can be used to help sort it out. Standard boiler plate for the most part.

I don't think I've claimed Maine law is different from that of other states, just that I don't know the laws from other states so well -- so I've emphasized that my posts were based primarily on Maine law.

Slipp is quite a useful cite and I thank you for it. I would concede that it seems to define latent ambiguity somewhat more broadly than I'd have expected. I'll try to bone up on the cases it cites. Taylor is quite well-known, and seems consistent with what I wrote in response to JBS and with my "3 oaks" example: the roads in Taylor are not parallel, and one can't tell that from the deed itself -- but the roads are called in the deed.

Slipp doesn't give us the pertinent deed language, though it does say that the pins aren't called. But it sounds like there was plenty of evidence that the lines had been established by the parties, most likely (given the compass bearings, which evidently were in the deed) by a survey, of which the pins were monuments. I like to think I would have held them had I been involved. The Knowles precedent seems (to me) much more relevant to Slipp than does the "latent ambiguity" doctrine, and seems to sew the case up.

One reason I've had trouble with this entire controversy is that in my area it is extremely common for outconveyances to be written up without anything being set on the ground whatsoever. So a deed like the one Lex presented yesterday does not at all suggest to me, and I can't see why it would suggest to a buyer, that anything has been surveyed or any monuments set. The presumption elsewhere seems to be otherwise. Certainly the Slipp court thought the "notice" accorded the grantees was pertinent.

Here's some more definitions of latent ambiguity from Maine:

595 S.W.2d 453 (1980) KRATZER

"A latent ambiguity is an uncertainty which does not appear on the face of the deed. The ambiguity is created by matters outside the writing."

541 A.2d 155 (1988) TAYLOR

"A latent ambiguity in a deed is created when, in applying the description to the ground, facts extrinsic to the document controvert or in some way render unclear the deed's apparently unambiguous terms" also quoted in 679 A.2d 510 (1996) SNYDER

That "presumption" wasn't so much in this case. There was a survey performed with the first conveyance. That changes everything. Had that survey not been completed, then those pins would not have been set. Then, and only then, would a surveyor take the junior/senior rights into account, along with all other evidence. That was not the case in the situation described yesterday.

> Here's some more definitions of latent ambiguity from Maine:
>
> 595 S.W.2d 453 (1980) KRATZER
>
> "A latent ambiguity is an uncertainty which does not appear on the face of the deed. The ambiguity is created by matters outside the writing."
>
>
> 541 A.2d 155 (1988) TAYLOR
>
> "A latent ambiguity in a deed is created when, in applying the description to the ground, facts extrinsic to the document controvert or in some way render unclear the deed's apparently unambiguous terms" also quoted in 679 A.2d 510 (1996) SNYDER

These all seem consistent with the "3 oaks" example I gave JBS: they all involve stuff called in the deeds. Kratzer is a Missouri case involving not really a "call" or even a boundary but a grantee's name. Taylor involved called roads that turned out not to be parallel; Snyder, mainly some measurement calls. These calls could not be strictly, precisely honored once facts on the ground were considered; the calls in Lex's example yesterday could.

"A latent ambiguity in a deed is created when, in applying the description to the ground, facts extrinsic to the document controvert or in some way render unclear the deed's apparently unambiguous terms"

Wouldn't the found pins at 496', obstensibly set to represent the boundary, called for in the deed to be 500', be a latent ambiguity? Something found while applying the description to the ground that controverts or in some way renders unclear the deed's apparently unambiguous call of 500'?

I would think this is quite a different situation than the "3 oaks" you described. I would agree, however, finding 3 various monuments in the vicinity of the 500' measurement would be analogous to your 3 oaks example.

Brian:

The deed in Lex's original example read “the eastern 500’ of Jones’ land”. I can't see what term in that description becomes unclear simply because one finds pins at 496 feet. In the deed there is no call to any pins, no call for or hint of any survey, thus no call which the pins' actual location renders ambiguous. There is nothing that would prevent one from laying out "the eastern 500 feet" on the ground with certainty. My understanding of a "latent ambiguity" is that it would by definition pose such an uncertainty. The "3 oaks" would render the call "to an oak tree" uncertain.

I am not advocating "deed staking" here, and would readily hold the pins if Lex's deed had read "the eastern 500' of Jones' land, as surveyed by Badtape Surveying in 1960." It's the weight given the 1960 survey that has bugged me, since there's nothing to tell Eastman that it or the pipes exist.

Brian:

> The deed in Lex's original example read “the eastern 500’ of Jones’ land”. I can't see what term in that description becomes unclear simply because one finds pins at 496 feet. In the deed there is no call to any pins, no call for or hint of any survey, thus no call which the pins' actual location renders ambiguous. There is nothing that would prevent one from laying out "the eastern 500 feet" on the ground with certainty. My understanding of a "latent ambiguity" is that it would by definition pose such an uncertainty. The "3 oaks" would render the call "to an oak tree" uncertain.
>
> I am not advocating "deed staking" here, and would readily hold the pins if Lex's deed had read "the eastern 500' of Jones' land, as surveyed by Badtape Surveying in 1960." It's the weight given the 1960 survey that has bugged me, since there's nothing to tell Eastman that it or the pipes exist.

Cee Gee, your assertions are just wrong. You are putting all of the control of the land boundaries on the scrivner or lawyer who worded the deed. Why do you want to put the power there? Yes Jones wanted to split it at 500'. But once set, the stake and iron became the expression of that 500'. Was it precise? Maybe not, but why assume that Jones or Eastman had a strong desire for a perfect 500'? There is no evidence to support that, there is evidence to support that they were happy with the corners as staked (a; they did nothing contrary to them and b; Jones pointed them out to Wesley as the corners when he sold the west 500').

The words are important, but, as has been pointed out numerous times in this discussion, they must be interpreted in light of the facts, conditions, and actions of the contract parties at or near the time of sale. I would love it if all descriptions called out monuments at the corners, but they just don't. I know you were told that if a deed doesn't call out a monument, then it has little or no relevance. I was told that, too. Well, we were told wrong. It is unreasonalbe to assert that Eastman was unaware of the survey or the newly set pins in 1960 when he moved it. He probably saw newly staked and flagged irons. We don't know for certain that he did, but it is a legal presumption that he did, and it is plain common sense that he did. The survey was performed at or near the time of sale.

I think you should change your mindset a little and stop being so doubtful of found evidence. You should give found monuments the benefit of the doubt. You shouldn't be so concerned about PROVING found irons, you should let them stand until DISPROVEN. That "thought environment" is more likely to lead you to conclusions that are supported by the majority of case law.

Stephen

Cee Gee:

> The deed in Lex's original example read “the eastern 500’ of Jones’ land”. I can't see what term in that description becomes unclear simply because one finds pins at 496 feet. In the deed there is no call to any pins, no call for or hint of any survey, thus no call which the pins' actual location renders ambiguous. There is nothing that would prevent one from laying out "the eastern 500 feet" on the ground with certainty. My understanding of a "latent ambiguity" is that it would by definition pose such an uncertainty. The "3 oaks" would render the call "to an oak tree" uncertain.
>

When placing the description on the ground and finding a monument at 496', the 500' becomes unclear. You have evidence that the boundary may have been previously marked. That is the latent ambiguity. At that point in time you are allowed, no you are required, to leave the four corners of the deed and find the answer to a few basic questions. Basically, You have to decide if you are the original surveyor, or a retraceing surveyor. There is a BIG difference.

Under your interpretation of what a latent ambiguity is, if I have a deed that I'm working with that calls: "beginning at the SW corner of section 22, thence north 2640 feet, thence east 2640 feet, thence south 2640 feet, thence west 2640 feet". Those measurements and bearings are the only thing that I can stake at the EXACT BEARINGS AND DISTANCES to the best precision I can possibly muster. Any markers, and/or any other interpretation of the very clear, unambiguous calls within the four corners of the deed have to be ignored.

> I am not advocating "deed staking" here, and would readily hold the pins if Lex's deed had read "the eastern 500' of Jones' land, as surveyed by Badtape Surveying in 1960." It's the weight given the 1960 survey that has bugged me, since there's nothing to tell Eastman that it or the pipes exist.

Sorry, but that is exactly what you are advocating. 🙁

> Here's an interesting case from the Supreme Judicial Court of Maine.
>
> Slip v Stover, 651 A.2d 824 (1994)
>
> The trial court noted that "Knowles is particularly appropriate law because it is based on recognition of the fact that compasses vary, surveying instruments can be imperfect and if they are perfect, then surveyors can be imperfect and to compound the problem, scriveners can be imperfect."

Love that. If you were around back in the 70's when the dip needle was out and the new boy in town was the Schonstedt. Lots of humility when NOW you found the pipe and your prior proportion was off enough to raise eyebrows.