We need to distinguish between questions of law and questions of fact. I have read a lot of cases over the past few years and this is one of the key things I have picked up from it.
If a Deed description is the north 200 feet of Lot 100 then the construction that description is a question of law. Extrinsic evidence is not admissible to change the description. Then the question of fact is where is the north line of Lot 100 located, a much broader range of evidence is admissible to determine this fact. The location of the south line of the north 200 feet is also a question of fact to which a broad range of evidence is admissible.
Now suppose Lot 100 is bounded on the north by an abandoned street. There are three possibilities: 1) the 200 feet is measured from the south line of the street (the rebuttable presumption in California) and the grant includes the 200 feet plus half the street (another rebuttable presumption in California), 2) the 200 feet is measured from the south line of the street and does not include half the street (if the presumption has been rebutted), or 3) the 200 feet is measured from the center line of the street (if both presumptions have been rebutted). The description is patently ambiguous and extrinsic evidence is admissible to determine how the original parties interpreted the Deed description effectively converting this to a question of fact.
120 DEEDS 3,185
120III Construction and Operation 1,019
120III(B) Property Conveyed 142 120 ->118 Evidence. 19
421. Baker v. Ramirez
Court of Appeal, Fifth District, California. April 1, 1987 190 Cal.App.3d 1123
Headnote: Evidence supported finding that grantor did not intend to convey any portion of abandoned street in conveyance of 100-foot right-of-way to railroad, so that right-of-way began at south edge of abandoned street, and did not include south half of abandoned street in addition to the described property; grant of specific number of feet carved out of contiguous lots evidenced grantor's intent that street not be included in conveyance, and evidence indicated that grantor planted orange grove to south line of abandoned street and that railroad placed survey stakes beginning at edge of abandoned street to mark four corners of right-of-way. West's Ann.Cal.Civ.Code å¤1112.
Document Summary: Landowner filed complaint to quiet title and for declaratory relief, injunction, and damages based on adjoining landowners' removal of two rows of orange trees from disputed 20ÛÒfoot wide strip of property, and adjoining landowners filed cross-complaint against railroad which had deeded disputed strip to them. The Superior Court, Tulare County, Nathaniel O. Bradley, J., determined that landowner held title to disputed strip, directed verdict against railroad for breach of contract in the amount of $1,067.14, awarded actual damages in favor of landowner for $22,683, declared a mistrial on the issue of punitive damages, and doubled jury verdict to $45,366. Adjoining landowners appealed. The Court of Appeal, Franson, Acting P.J., held that: (1) conveyance to adjoining landowners of lots located south of abandoned street included disputed strip; (2) grant of relief to landowner from proposed stipulation waiving adverse possession claim was not...
120 DEEDS 3,185
120III Construction and Operation 1,019
120III(A) General Rules of Construction 297
120 ->110 Questions for jury. 5
294. Ames v. Irvine Co.
Court of Appeal, Fourth District, Division 1, California. December 5, 1966 246 Cal.App.2d 832 Headnote: Construction of a deed, on its face, including description therein, involves question of law.
Document Summary: Action by administrators of estate of patentee to obtain judgment declaring the estate and heirs of patentee to be owners of 7/11ths interest in tract of land claimed entirely by successor in interest of patentee's grantee under a particular deed. The Superior Court of Orange County, Stephen K. Tamura,
J., granted defendant's motion for summary judgment and denied the administrators' motion for judgment on the pleadings or, in alternative, for summary judgment, and the administrators appealed. The Court of Appeal, Coughlin, J., held that reference in patentee's deed to his grantee to original grant and to decrees of confirmation in United States District Court for more particular description and that quantity given by United States District Court be quantity conveyed by deed qualified reference in deed to property as Û÷Rancho of Santiago containing four leagues' and deed conveyed all of 10.7 square leagues of land patentee received under Mexican grant which was affirmed by...
You've been tenacious about your case law study. When do you write your book and/or hit the lecture circuit?
Bill93, post: 409109, member: 87 wrote: You've been tenacious about your case law study. When do you write your book and/or hit the lecture circuit?
Yes, it has been about a year since said something about a book. We're patiently waiting. Until then I will continue to enjoy your posts. Thanks, Jp
I think I've finally got my mind in order. Now I need to make an outline.
This will be different from how the topic has been presented.
Brown's first book is compact and concise but it's dry, there is not much life in the technical ideas presented. The cases represent real people, some of the things they did in the 19th century were crazy, don't hire a professional, just grant your house and the appurtenances to your brother then leave the Deed with the notary who forgot to deliver the Deed. Then they had to argue about did he mean the entire 110 acre farm or just the house and about an acre inside the fence? The Court had to figure this out and they ruled the brother received the entire farm. This is in Round Valley near Covello (Mendocino County). Crozer v. White, District Court of Appeal, Third District, California. December 31, 1908 9 Cal.App. 612
I don't think its as clear cut as you are presenting. It appears to me that location of the boundary is a question of fact and law. The fact is that you have to refer to the law to locate the boundary. The question of fact is to determine which question of law must be answered to determine where the boundary is (has the rebuttable assumption been rebutted?). Likewise, questions of fact need to be decided to determine if the description is adequate to describe the boundaries (does lot 100 exist?).
I don't know what it means to say extrinsic evidence can't be used to change the description. What if Lot 100 only has 150' when it is measured?
I understand and agree with what I think you are trying to say, but I think it is dangerous to draw such defined lines. Surveyors (except some federal surveyors) are not empowered to answer questions of law. Lawyers in many(all?) states are not empowered to opine on maters of fact when it comes to boundaries. Applying a hard dividing line between the two leads us to a situation that an attorney (or a judge) and a surveyor are required in every boundary situation with even a hint of disagreement.
Nice summation, David.
The attached outline is not finished but it is a start.
I don't plan to do another version of Brown's books, or Clark, or Skelton. I don't think there is a need for another book with technical details in it. Those books are necessary because they fill in a lot of blanks you don't find in case law (like whether to hold the radius over the delta or the form and content of a subdivision map).
My thought is to start with some brief preliminary topics such as the Parol Evidence Rule and the Statute of Frauds. I won't be writing a comprehensive treatise on those subjects because the legal profession has already done that. Readers can can easily obtain those books in PDF form. The intention is to just provide some preliminary education about those things and to provide topics for purposes of research. Land Surveyors are generally already experts at digging up new information; we are way ahead of most of the public on finding legal information already. It is helpful to know the words to use, use their words and topics (for example, boundaries, not property lines; adverse possession, not squatter's rights).
Then I want to step back and look at the whole of boundary law (see the forest, not just the trees) and after that examine the topics in their proper context. I want to follow it through from creation by deed to establishment on the ground. What do the Courts look at? What types of information do they seek out and analyze? The difficult part I'm still working on is: I don't want to write another legal treatise, their are numerous treatises and other secondary sources already. I want to write a work for Land Surveyors as a guide on how to follow through using all of the evidence and the law to arrive at the correct answer as a Land Surveyor (not a Lawyer). I'm getting there. Part of my problem is I tend to overdo the research. I think I need to back off, maybe do some specific research as I arrive at each topic.
One idea is to write it as a series of articles which I publish here over time then eventually bind it into a book.
Encyclopedias and treatises are dry. You have a sentence with a footnote then a sentence and a footnote. The footnotes are cites to authorities (mostly cases). They are essentially legal principles. I would rather write something with life in it so there will be a lot of cases. Joe sold the barn to Bill. Joes' heirs claimed it was only the barn and the half acre barnyard. Bill's heirs claim it's the entire farm. How did the Court figure it out? These are real people. Courts will hold people to their agreements (even if they are stupid, it isn't the Court's job to fix stupid) but they have to figure out what the agreement is or apply a law which says what the agreement is absent any other evidence.
MIller & Starr Calif. Real Estate is a very readable treatise and it gives a lot of examples, I have found it very helpful. Tiffany Real Property (a national treatise) is a treasure trove of cites but the language is dry and sometimes archaic.
To summarize...the idea is to have a book which conveys the natural structure of the law and the reasoning that goes in decisions. It is not to make a 100% accurate legal treatise which covers every single last nuance of boundary law in the U.S. and Canada. The reader will read about some legal doctrine and case examples I give then s/he will realize they need to find out what the specifics of that law in their jurisdiction is. Maybe one of the elements of establishment is uncertainty, I explain that and some of the ins and outs. Then the reader wonders about how that works in their jurisdiction, maybe they research and find out uncertainty isn't even an element of their doctrine.
I'm glad to hear that you're moving forward with the project. Let me know when I can reserve a copy!
Good start! Waiting anxiously! Jp
Dave Karoly, post: 409416, member: 94 wrote: I want to write a work for Land Surveyors as a guide on how to follow through using all of the evidence and the law to arrive at the correct answer as a Land Surveyor
I want to read such a book.