eapls2708, post: 367937, member: 589 wrote: Anytime a parcel is described with a dimension as a controlling element and that boundary had been established at some point in the past, you will encounter latent ambiguity. It may be negligible or it may be of sufficient magnitude to cause you to recheck your research and your measurements.
Depending upon the time that the measurements were made, who made them, and the conditions of the site at that time, 2.25 feet in 100' (or are we talking about 65.25 feet? - specific reference most won't understand) might be within the realm of an expected error.
If the corner from which the distance is called was never monumented, or no monumentation of record, then there is no way of knowing whether the party who first laid out the dividing line properly established that starting point, or if they did so based on evidence which is long gone.
The party who first determined that distance may have done so from some previous record of an overall distance on the parent parcel and subtracted other measurements without ever verifying the 100' or the point from which it was called from.
The party making that first measurement, even if they started from the proper location, may not have been skilled at making measurements, may not have used a good or reliable measuring tool, or may have transposed a number in the writing.
Courts will typically not call a discrepancy of this magnitude a "mistake" with regard to the first or original on-the-ground establishment of a boundary. If it is a re-establishment that does not appear to fit with reliable evidence or pre-existing improvements that were likely made in reference to the original boundary, or if the establishment contains gross error, it will most likely be seen as a mistaken location by the courts. Gross error according to courts is a far different definition than that held by most surveyors. A surveyor would look at an error of 2.25' in 100' and be likely to think that the person who made the measurement either is incompetent as a surveyor, or was careless and made a blunder that went uncorrected. Many surveyors would consider that to be either illegitimate if not made by a qualified person, or translate the surveyor's technical mistake to a mistake of title (i.e. what was established is not the boundary).
In the cases I've read relative to a boundary being placed on the ground for the first time, mistake or gross error is recognized only when the entire parcel location cannot be reconciled between the description and what's on the ground, or where the basic shape or nature of the parcel is significantly different than as indicated by the description. Examples might be a parcel that was supposed to be a riverfront parcel that was laid out so as to be cut off from the river by a road and the land between the road and river (old case in ME, would have to look up but cited in Skelton); Where a boundary was established such that the land area was greatly different than as indicated by the map or description (smallest amount by area I've been able to find was a discrepancy of about 33% - case on the snake River, ID side that I can't recall the name of now); Or where a call to a particular ridge caused a boundary to not close (and added well over 100 acres) if the boundary were to be re-established on the called for ridge, but closed reasonably and contained approximately the called for area if a closer unnamed ridge were followed instead (A CA case of a rancho, White v somebody, IIRC).
A conveyance creates a parcel, but the first establishment of it on the ground (good faith, free of fraud & gross error, etc.) establishes and fixes the boundary location.
Bringing it back to Dave's example in the OP, that means that the west line of the east 100' is where the first person who was authorized to establish the line (landowners or surveyor hired by landowners) established the line, according to their measurement (including their measurement errors) and according to where they had established the point they were coming from. If there is no evidence to show who measured the distance, what equipment or methods they used, how they determined the location of the point they were coming from and where they determined it to be, but there is some form of reliable evidence as to the original location of the west line of the east 100', then the line is at that location, regardless of whether it measures 100', 102.25', or 90' back to the point the distance was called from as that point is established from the best remaining evidence of its location.
I'm familiar with the ridge line case you mention. It is cited in Cal Jur, I think.
My conclusion is similar to yours from reading case law, I mean reading the whole case, what was the beef, who were the parties, what were their positions, what did they do, who did it, was it agreed upon, etc. We tend to focus in on the parts that we are comfortable with analyzing, measurements and fences. So we find a case that says it's not the fence or the measurement is too large. If you read the whole case, usually you find out the reason the court refused to enforce the monument or fence was because it was established unilaterally or by different, irrelevant parties. Procedure is a major thing we tend to ignore, maybe a case was decided a certain way for procedural reasons so it really doesn't speak to a fact question. Land Surveyors focus on the positions of things; the courts focus on the people involved.
Most of the cases that decide cases on the rules of construction, such as un-called for monuments don't control, are a dispute between the original parties and are a title dispute over what the subject matter actually was; the dispute is usually over a substantial discrepancy. Granted 2.25 feet in 100' is fairly large and I debated how large to make it when I developed the hypothetical but I did it to bring out real issues instead of allowing people to cop out, well you know 0.25 feet is acceptable precision.
If a reasonable explanation can be found that will often decide a case. For example, it is common, especially in old Deeds, the parties wrote it to measure from one direction but they did a little simple arithmetic and measured from the other direction. When you see the measurement from the wrong direction is right on and the overall Lot measures significantly different from the record this can explain why a boundary appears to be in the "wrong" place.
It gets back to what Cooley said, Land Surveyors grow impatient when told they have to recognize inaccuracies which lead them away from the results they theoretically ought to reach.
Dave Karoly, post: 367941, member: 94 wrote: I'm familiar with the ridge line case you mention. It is cited in Cal Jur, I think.
My conclusion is similar to yours from reading case law, I mean reading the whole case, what was the beef, who were the parties, what were their positions, what did they do, who did it, was it agreed upon, etc. We tend to focus in on the parts that we are comfortable with analyzing, measurements and fences. So we find a case that says it's not the fence or the measurement is too large.
In my experience, the most defensible solution is the one that can be most easily explained in court and isn't contrary to law or equity. That boils down to how one's decision is written up and what the underlying equity of the situation is. I would think that most judges operate on a similar principle.
Consider how differently the hypothetical that Dave posed would likely be decided depending upon how sympathetic a figure the owner done out of 2.5 ft. of land was. Elderly widow who trusted the surveyor to correctly locate the line and is now left with unsaleable remant of insufficient width if 102.5 stands as width sold?
eapls2708, post: 367937, member: 589 wrote: Anytime a parcel is described with a dimension as a controlling element and that boundary had been established at some point in the past, you will encounter latent ambiguity. It may be negligible or it may be of sufficient magnitude to cause you to recheck your research and your measurements.
Depending upon the time that the measurements were made, who made them, and the conditions of the site at that time, 2.25 feet in 100' (or are we talking about 65.25 feet? - specific reference most won't understand) might be within the realm of an expected error.
If the corner from which the distance is called was never monumented, or no monumentation of record, then there is no way of knowing whether the party who first laid out the dividing line properly established that starting point, or if they did so based on evidence which is long gone.
The party who first determined that distance may have done so from some previous record of an overall distance on the parent parcel and subtracted other measurements without ever verifying the 100' or the point from which it was called from.
The party making that first measurement, even if they started from the proper location, may not have been skilled at making measurements, may not have used a good or reliable measuring tool, or may have transposed a number in the writing.
Courts will typically not call a discrepancy of this magnitude a "mistake" with regard to the first or original on-the-ground establishment of a boundary. If it is a re-establishment that does not appear to fit with reliable evidence or pre-existing improvements that were likely made in reference to the original boundary, or if the establishment contains gross error, it will most likely be seen as a mistaken location by the courts. Gross error according to courts is a far different definition than that held by most surveyors. A surveyor would look at an error of 2.25' in 100' and be likely to think that the person who made the measurement either is incompetent as a surveyor, or was careless and made a blunder that went uncorrected. Many surveyors would consider that to be either illegitimate if not made by a qualified person, or translate the surveyor's technical mistake to a mistake of title (i.e. what was established is not the boundary).
In the cases I've read relative to a boundary being placed on the ground for the first time, mistake or gross error is recognized only when the entire parcel location cannot be reconciled between the description and what's on the ground, or where the basic shape or nature of the parcel is significantly different than as indicated by the description. Examples might be a parcel that was supposed to be a riverfront parcel that was laid out so as to be cut off from the river by a road and the land between the road and river (old case in ME, would have to look up but cited in Skelton); Where a boundary was established such that the land area was greatly different than as indicated by the map or description (smallest amount by area I've been able to find was a discrepancy of about 33% - case on the snake River, ID side that I can't recall the name of now); Or where a call to a particular ridge caused a boundary to not close (and added well over 100 acres) if the boundary were to be re-established on the called for ridge, but closed reasonably and contained approximately the called for area if a closer unnamed ridge were followed instead (A CA case of a rancho, White v somebody, IIRC).
A conveyance creates a parcel, but the first establishment of it on the ground (good faith, free of fraud & gross error, etc.) establishes and fixes the boundary location.
Bringing it back to Dave's example in the OP, that means that the west line of the east 100' is where the first person who was authorized to establish the line (landowners or surveyor hired by landowners) established the line, according to their measurement (including their measurement errors) and according to where they had established the point they were coming from. If there is no evidence to show who measured the distance, what equipment or methods they used, how they determined the location of the point they were coming from and where they determined it to be, but there is some form of reliable evidence as to the original location of the west line of the east 100', then the line is at that location, regardless of whether it measures 100', 102.25', or 90' back to the point the distance was called from as that point is established from the best remaining evidence of its location.
There are a couple of cases with White in them, one is a Rancho boundary dispute in Ventura County (Adair v. White, 85 Cal. 313 (1890)) but I don't think that is it because it appears to be a dispute over the Rancho boundary itself whereas the one you mention I remember as being a dispute over a Tract on the south side of a Rancho; it called a Ridge and the Rancho boundary and they were in different locations. I think in that case the Court disregarded the call for the Rancho boundary but I could be misremembering. I'll have to look through my notes in my Cal Jur binder at home to see if I can find it.
The other case is White v. Spreckels but that is an agreed boundary case. Spreckles was near the top of the California rich person fraternity in the 19th century. There are a bunch of cases involving Spreckles, mostly because of the disputes over his estate. I know that is not it.
One more time.....
Correct is an identity, not a distance.
eapls2708, post: 367937, member: 589 wrote: Or where a call to a particular ridge caused a boundary to not close (and added well over 100 acres) if the boundary were to be re-established on the called for ridge, but closed reasonably and contained approximately the called for area if a closer unnamed ridge were followed instead (A CA case of a rancho, White v somebody, IIRC).
This is the case I was thinking of but maybe you had a different one in mind.
Piercy v. Crandall, 34 Cal. 334 (1867):
OPINION
The plaintiffs' deed describes the initial point in the boundary of the land conveyed as being "at a point of the boundary of said rancho," and as being "the middle or center of the well known point called the Portezuela de las Animas." As the boundaries of the said rancho have been finally surveyed and located, no point in said boundary coincides with the middle or center of the Portezuela, and the question is, where is the initial point? By taking a point in the middle of the Portezuela as the starting point, and running the other lines according to the calls, they will not close without abandoning the last call, and running a straight line to the point of beginning. Such a course would be adopted in a proper case. When there are conflicting descriptions, ordinarily that one must be adopted which is most certain and stable, and least likely to be mistaken or affected by errors. Upon this principle it is a rule that monumental lines or points control such as are described by course and distance only. ( Vance v. Fore, 24 Cal. 445-46.) These rules are adopted because they are most likely to lead to the discovery of the true intent of the parties. The Portezuela de las Animas is a natural monument, and the middle or center may be found at least proximately, while the boundary line of a Spanish rancho, which has not been finally located, is notoriously uncertain. The record does not show whether the boundary of the rancho had been finally located, or not, at the date of the deed, and the agreed statement of facts, which is stated to contain all the evidence upon which the Court acted, does not contain anything upon which the Court could have found that fact one way or the other. It does not appear, therefore, whether the boundaries of the rancho were actually run out on the ground and finally located and marked before or after, the making of the deed under which plaintiff claims. There is no diagram or other description in the record by which we can obtain a very accurate idea of the difference which the two theories as to the initial point will make, or the relative situation of the tract embraced in the description and that left out. If we understand the matter correctly, by establishing the initial point in the southern boundary opposite and nearest to the center of the Portezuela, as claimed by the defendants, and running the several courses and distances according to the calls, the lines will close at the point of beginning. While, by taking the initial point claimed by plaintiff, the lines will not close, and that a very narrow strip, several miles long, will be left between two ranchos, in a shape and condition not very likely to have been contemplated by the parties. The language of the deed is, "commencing at a point of the boundary of said rancho, being the middle or center of the well known point called the Portezuela de las Animas," etc. If, when the deed was made, the rancho had not been finally surveyed the parties might have supposed that the boundary and "the middle or center of the Portezuela" would coincide, and as the latter was fixed and certainly known, while the former was not settled, the middle of the Portezuela would be the most certain and definite call. But if the rancho had been actually surveyed and finally located when the deed was made, the boundary might have been as definite, fixed and permanent an object, and as well known to the parties adopting it as a call, as the Portezuela. Since a point of the boundary cannot coincide with the middle or center of the Portezuela, and since all the remaining calls harmonize with the point in the boundary nearest the said middle or center of the Portezuela, and close the lines, while taking the middle or center of the Portezuela as the initial point, and running the other lines according to the calls, they will not harmonize or close the lines, we are unable to see any good reason why the point in the boundary should not be taken as the one intended, and especially so, if the other hypothesis would leave the land outside in such a shape or condition that it would be absurd to suppose such a result was contemplated.
In such case the point in the boundary would be as definite and certain as the point in the middle of the Portezuela, and would correspond better with the other calls and with the probable intention of the parties, apparent from the surrounding circumstances. And the intention of the parties should be ascertained by a consideration of the entire description. For the reasons suggested we think it not advisable to finally determine the location of the initial point from the facts stated in the present record. A new trial should be had, that the facts may be more fully investigated. The point will, therefore, be left open, to be further illustrated by the facts brought out on the next trial.
Judgment and order denying a new trial reversed and a new trial granted.
Concurring Opinion:
CONCUR
Currey, C. J., concurring specially:
The only question to be determined in this case is, where is the true point of beginning of the description of the land contained in the deed from the source of title under which the plaintiffs claim. The description designates the place of beginning to be at the middle or center of the well known point, called the Portezuelo de las Animas, and running thence northerly in the direction of the center of the Laguna Seca one Spanish league; thence at an angle to the south side of the hill known as the Loma de las Lagrimas; thence in a line of the boundary which constitutes the division line between the Rancho de la Yerba Buena and the rancho known as Santa Teresa, in the direction of the rancho known as the Rancho de Alvirez, until it reaches the boundary line which divides said Rancho de la Yerba Buena from said Rancho de Alvirez; and following the last mentioned boundary line to the place of beginning.The Yerba Buena Rancho was confirmed as a valid claim, and a patent therefor was granted to Antonio Chaboya. The decree of confirmation, on which the patent was issued, described the Yerba Buena as bounded on the south by said Portezuelo de las Animas, and the patent so describes it. The Court finds, that the decree of confirmation calls for the Portezuelo and an oak tree at it as the southern boundary of the Yerba Buena Rancho. There is no oak tree at the Portezula, but there is a marked oak tree in the southern boundary line of the Yerba Buena, and the Portezuela is not such boundary line, but sixteen and a half chains to the southeast of it. It is agreed on all hands that if the Portezuela be adopted as the point of commencing the description of the plaintiffs' lands, the premises in controversy belong to them; but if the point of beginning be placed on the line sixteen and a half chains northwest of the Portezuela, then they have no title to the demanded premises, and, consequently, no right to recover.
The description in the deed under which the plaintiffs claim title does not specify or refer to a tree in connection with the Portezuela. The call is: "Commencing at a point of the boundary of said rancho [Yerba Buena], being the middle or center of the well known point called Portezuela de las Arimas." This is a definite designation of the middle or center of the Portezuela as the place of beginning. The parties agree, and so the Court has found, that the Portezuela de las Animas is a narrow ridge, connecting two parallel ranges of high hills, and was a noted place, well known by that name, when the conveyances under which the plaintiffs claim were executed, and that the center of the Portezuela can be readily and precisely ascertained. The objection to adopting the place designated, which seems to have controlled the Court below, was that by making the point of beginning at the center of the Portezuela, the last locative call in the description would necessarily be without effect, as it would be impossible to reach the point of beginning, by following from the last station in the description the division or boundary line which separates from each other the Ranchos de la Yerba Buena and de Alvirez. It may be that the last boundary call, if it were literally adhered to, could not be satisfied; but if so, the rule is that it must be rejected and supplied by one running in a straight line from the last station to the place of beginning. (1 Greenl. Ev., Sec. 391.)
It is a principle well settled that in the location of a grant, that which is most certain and material in the description shall control that which is less so, and when there is a known and well ascertained place of beginning it must govern. ( Jackson v. Wendell, 5 Wend. 146, 147.) In the case here cited the Court say: "It is immaterial how many natural monuments there may be in the courses given; the place of beginning is the controlling point, and if rendered certain, no matter in what manner, it cannot be abandoned and another position assumed as the starting point."
It is also a principle well settled that in the description of a tract of land in a deed of conveyance the highest regard is to be had to permanent natural objects as landmarks. The Portezuela de las Animas was and is an object as stable as the everlasting hills, and was well known at the time, and was beyond question the very object or monument to which the grantor had reference as the point of commencement in the description of the land contained in his deed under which the plaintiffs claim title. "All grants or conveyances," said the Chancellor in Wendell v. The People, 8 Wend. 190, "are supposed to be made with reference to an actual view of the premises by the parties, and it is therefore a general rule in the construction of grants that both course and distance must give way to natural or artificial monuments or objects; and courses must be varied and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by the grant."
The point of beginning, specified in the deed of Chaboya, is the "middle or center of the well known point called the Portezuela de las Animas." It cannot be doubted that both grantor and grantee well understood the point of beginning in the description of the land mentioned in the deed, to be at the center of the Portezuela, because they could not well be mistaken respecting the place named, as it was an object of permanence and notoriety at the time Chaboya conveyed the land to which the plaintiffs now have the title.
The place of beginning being established at the center of the Portezuela, it should be adhered to as the controlling point in the description of the plaintiffs' land.
I am of the opinion the judgment should be reversed, and new trial ordered.
That's not the one I was thinking of, but similar issue.