Intent

[LS_8750]

Intent is the contrast between the black and white of every page in written history. You can't even breathe without out expressing the intent to live.

Evan and Wooley, two sides of the same razor. They can't help but agree out there on the edge.

[land butcher]

I feel sorry for Dylan Gonsalves. What a can of worms this turned into.

He found 40yo conflicting documents with what I think can be safely called Material Discrepancies.

A surveyor cannot resolve this himself. As a professional you present the evidence to the involved parties and make professional suggestions as to a resolution.

It's up to the parties involved whether to calmly and cheaply resolve the issue (in this case I think a rewriting of the deeds) or get their guns or hire lawyers and let the courts decide. If the latter the "Professional Surveyor" will testify as to what he FOUND as evidence. The court will decide intent.

Simple isn't it?

[dmi]

Again as stated before and with greater authority and by actual authorities on the matter, the surveyor's opinion is not conclusive on the parities. This does not mean,however,that the properly executed boundary survey does not implicitly or explicitly consider the intent of the parties.

[bryanmundia]

Dane,

I apologize for my lack of posts over the past few days. I have had some other pressing matters which have prevented me from posting. So to get back to the point. I was reading through the California Code of Civil Procedure and found the following:

California Code of Civil Procedure 2077 (Part 4/Title 6/CH.1)

1. Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.

6. When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars. (Emphasis Added).

California Civil Code Section 1639 (Division 3/Part 2/Title 3)

When a contract is reduced to writing, the intention of the parties is to be
ascertained from the writing alone, if possible; subject, however, to the other provisions of this Title. (Emphasis Added)

Also, I found a few other bits of information which help with proving the point that intent is not determined by the surveyor.

Brown's Boundary Control and Legal Principles, 5th Edition, Chapter 11, Page 311, Section 11.16:

Principal 3. When establishing the boundaries of a property in accordance with a written deed, the boundaries must be established in accordance with the written terms of the deed. Parol evidence may not be taken to determine the terms of a deed, but may be used only to explain ambiguous terms of a deed.

Principal 4. When a conveyance is reduced to writing, it is assumed to contain all the terms intended and is construed, if possible, to give effect to all the terms.

Chapter 14, Role of the Surveyor:

No surveyor or court has the authority to alter or modify a boundary line once it is created. It can interpret only from the evidence of where that boundary is
located. Retracing surveyors will encounter a minority of surveyors who believe it is their responsibility to “correctâ€￾ the error…these surveyors have no concept that once the lines have been created, no subsequent surveyor has the authority to recreate original lines….By law they are free from error, even though, in fact, we do realize that the creating surveyor made mistakes. It is not the job…to correct the originals. It is their [surveyors] job to report any discrepancies found.

A surveyor has not authority to determine property ownership or property rights. The surveyor locates boundaries in accordance with and in relation to legal descriptions. Id., pg. 419

A land surveyor locates boundary lines according to the legal description in the deed and then relates lines of possession that do not agree with these lines and reports the facts to the client, preferably in writing. Id., pg. 419

Now, explain to me this. I have read through Brown's (amongst other Treatises) and found little to no evidence stating that the surveyor is the determiner of intent.

I ask again, provide me with a source, that when read in context contradicts the massive amount of cited works that I have provided above.

[bryanmundia]

Dane,

To answer your question regarding how to survey a boundary without considering the intent of the parties it is simple.

Do only what the contract allows you to do as a surveyor.

If the contract is whole and lacks ambiguity, then extrinsic evidence is not necessary. However, again as stated above, I would provide the owners with any information which contradicts lines of ownership and lines of occupation.

The decision is the home owners as to what to do with the problems. We as surveyors can provide them with resolutions to their problems which may be performed with or without a court decision.

I ask you this Dane. Why are you so willing to stick your neck out and take on the extra liability involved in determining intent? We are a reporter of facts, a protector of the public, not a mind reader trying to use some sort of smoke and mirror hocus pocus to determine what an original grantor intended to do.

[dmi]

Bryan , I ask you this, why have you posted very quote under the sun with little or no relation to the topic of discussion. As I stated before, I am not talking about extrinsic evidence or gaps or any other topic than what is job of the surveyor with respect to construing a deed. Brown plainly states that job entails. You have not specifically addressed what Brown plainly has to say on the subject.

I am not assuming any additional liability by doing my job of reading a deed and basing my survey upon evidence.

For argument's sake let's assume Albert owns the parent parcel. Albert divided the parent parcel with a fence. Albert sold the entire parcel on the west side of the fence. Albert points out to the buyer the fence is the boundary line. The deed calls the fence the boundary line. Albert sells the entire parcel east of the fence. Albert points out to that buyer, that the fence is the boundary between the 2 parcels. The deed for that sale calls the fence out as the boundary.

When you go to survey these deeds, I hope you will look for evidence of THE FENCE. I will. Why will I do that? BECAUSE IT IS THE CLEAR INTENTION OF THE PARTIES THAT THE FENCE IS THE BOUNDARY LINE. The deed language makes the fence a called for monument, in my opinion. If in my opinion, the fence is a called for monument, then I have construed the deed. The purpose in construing a deed is to ascertain the intent of the parties, at least according to Brown it is. Like it or not agree with it or not, if you have the opinion that the fence is the boundary,just like the property owners, then you have ascertained INTENT.

FOURTH EDITION EPBL PAGE 48 3-6

..." THE SURVEYOR SHOULD CORRELATE ALL PARTS OF THE DESCRIPTION TO DETERMINE THE TRUE INTENT OF THE ORIGINAL PARTIES."

" THE MAIN OBJECTIVE IN CONSTRUING A DEED IS TO ASCERTAIN THE INTENTION OF THE PARTIES FROM THE LANGUAGE USED AND TO EFFECTUATE SUCH INTENTION WHERE NOT INCONSISTENT WITH ANY RULE OF LAW."

BRYAN, IF YOU HAVE SPECIFIC CITATIONS THAT ARE CONTRARY TO THE ABOVE LISTED QUOTES PERHAPS YOU CAN CONVINCE THE PUBLISHERS TO REWRITE THE THEIR TEXTBOOK.

[bryanmundia]

Would I look for the fence? Of course, because it is written into the deed descriptions. The intent of the parties is clearly written. There is no question, when a deed calls to the fence, then you must perform due dilligence to find where that fence is or was. Your example proves my point exactly. You do what is written in the deeds, period, end of story.

As for providing "every quote under the sun" I feel that I have provided evidence which states that "intent" is not a function of the surveyor. I feel that if you take what I have written into context, you will find that I have proven this point.

I will have more to write this evening after further reading.

[dmi]

Dane,

I will get back to you this evening with an answer to your question. I hope you understand that what I have written and quoted not only deals with gaps/overlaps/extrinsic evidence, but also deals with intent of a deed. Read the references I have cited again in context to intent and see what sense they make.

I feel that you have gone to another level with your posts and seem to have taken this a little personal.

I will be the first to tell you that I understand what you are saying and respect your opinions on the subject. I appreciate the responses you have provided and ask that you please keep this on a professional level.
__________________
Bryan Mundia
LSIT, Orange County, California

BRYAN, I AM SORRY FOR ANY PART OF MY POST THAT WAS NOT SPECIFICALLY TARGETED TO THE SUBJECT UNDER DISCUSSION . I HOPE YOU WILL ACCEPT MY APOLOGY.

If you look a little deeper, you fill see there is a common thread in all of those citations .

No one is well served by every changing notions as to where a boundary line is. In an effort to keep peace and put an end to what might otherwise be unending litigation and disputes law makers and courts have developed the law to the point where it stands today.

The intent of the parties is paramount. This is a statement in Brown. I did not see anything in any of the citations that you posted that would defeat this statement. In fact the citations you posted,have as their core the idea that parties ought to be able to rely upon their agreements and that thoses agreements ought not be thwarted by the actions of third parties.

[bryanmundia]

Dane,

I agree, the intent of the parties is paramount. However, you forgot to add the part that the intent of the parties is what is written.

As for posting a message which I sent to you in confidence, well done on proving my point about keeping it professional.

I sent that message to you privately as a courtesy and to be professional about this thread, however, I see that you have not provided me with the same courtesy and professionalism. To that I say shame on you.

[bryanmundia]

Bryan , I ask you this, why have you posted very quote under the sun with little or no relation to the topic of discussion. As I stated before, I am not talking about extrinsic evidence or gaps or any other topic than what is job of the surveyor with respect to construing a deed. Brown plainly states that job entails. You have not specifically addressed what Brown plainly has to say on the subject.

I am not assuming any additional liability by doing my job of reading a deed and basing my survey upon evidence.

For argument's sake let's assume Albert owns the parent parcel. Albert divided the parent parcel with a fence. Albert sold the entire parcel on the west side of the fence. Albert points out to the buyer the fence is the boundary line. The deed calls the fence the boundary line. Albert sells the entire parcel east of the fence. Albert points out to that buyer, that the fence is the boundary between the 2 parcels. The deed for that sale calls the fence out as the boundary.

When you go to survey these deeds, I hope you will look for evidence of THE FENCE. I will. Why will I do that? BECAUSE IT IS THE CLEAR INTENTION OF THE PARTIES THAT THE FENCE IS THE BOUNDARY LINE. The deed language makes the fence a called for monument, in my opinion. If in my opinion, the fence is a called for monument, then I have construed the deed. The purpose in construing a deed is to ascertain the intent of the parties, at least according to Brown it is. Like it or not agree with it or not, if you have the opinion that the fence is the boundary,just like the property owners, then you have ascertained INTENT.

FOURTH EDITION EPBL PAGE 48 3-6

..." THE SURVEYOR SHOULD CORRELATE ALL PARTS OF THE DESCRIPTION TO DETERMINE THE TRUE INTENT OF THE ORIGINAL PARTIES."

" THE MAIN OBJECTIVE IN CONSTRUING A DEED IS TO ASCERTAIN THE INTENTION OF THE PARTIES FROM THE LANGUAGE USED AND TO EFFECTUATE SUCH INTENTION WHERE NOT INCONSISTENT WITH ANY RULE OF LAW."

BRYAN, IF YOU HAVE SPECIFIC CITATIONS THAT ARE CONTRARY TO THE ABOVE LISTED QUOTES PERHAPS YOU CAN CONVINCE THE PUBLISHERS TO REWRITE THE THEIR TEXTBOOK.

How is this different from what I am saying? Your citations say "from the language used" and "correlate all parts of the description"

I think that maybe we are fighting the same battle?

[E_Page]

[font="Calibri","sans-serif"]Those that limit their function todoing "only what the contract (deed) says" as they understand that tomean, is that they limit themselves to what the terms of the deed means to themas they read it today.

[font="Calibri","sans-serif"]The same law that gets bandiedabout regarding intent being gleaned solely from the terms stated also saysthat the contract (deed) must be read in light of the conditions andcircumstances surrounding the agreement at time of execution (CCP §1860, CC§1636, 1647). For a description, that means that the surveyor must attempt todiscern what the physical conditions were, and what info was available to theparties at the time the description was first written and used, and how theyhave put the agreement into effect at or about the time the agreement was made.[/font]

[font="Calibri","sans-serif"]If the surveyor refuses to findout those things and consider them when interpreting the description, he deliberatelylimits his role to less than that of a professional who applies reason to hisopinions, and stopping at a technician’s level of merely measuring and applyingmath.[/font]

[font="Calibri","sans-serif"]We are supposed to be more thanmeasurers and mathematicians. Otherwise, there would be no need to licensesurveyors as there would be no professional reasoning and no room forprofessionally reasoned opinion. There would only be competently performedmeasurement and correctly applied math.[/font]

[font="Calibri","sans-serif"]Another thing that sometimeshappens in these discussions is that some of those who begin citing thisportion of law about interpreting contracts according to what the words plainlysay to them today, is that they don't like when others look to the same law toshow that it doesn't really support what they've argued. They attempt to say “Oh no, that’s for ajudge to apply, we can’t practice law.”[/font]

[font="Calibri","sans-serif"]Nonsense![/font]

[font="Calibri","sans-serif"]The same law that says "When acontract is reduced to writing, the intention of the parties is to beascertained from the writing alone,..." ends with... [font="Calibri","sans-serif"]"ifpossible; subject, however, to the other provisions of this Title."[/font][/font]

[font="Calibri","sans-serif"]If you're looking to the law forguidance, you can't just stop at the point where it appears to make your jobeasy, you must read it in context.[/font]

[font="Calibri","sans-serif"]Civil Code §1636. A contract mustbe so interpreted as to give effect to the mutual intention of the parties asit existed at the time of contracting, so far as the same is ascertainable andlawful.[/font]

[font="Calibri","sans-serif"]§1640. When, through fraud,mistake, or accident, a written contract fails to express the real intention ofthe parties, such intention is to be regarded, and the erroneous parts of thewriting disregarded.

§1641. The whole of a contract is to be taken together, so as to give effect toevery part, if reasonably practicable, each clause helping to interpret theother.

§1642. Several contracts relating to the same matters, between the sameparties, and made as parts of substantially one transaction, are to be takentogether.

§1643. A contract must receive such an interpretation as will make it lawful,operative, definite, reasonable, and capable of being carried into effect, ifit can be done without violating the intention of the parties.

§1644. The words of a contract are to be understood in their ordinary andpopular sense, rather than according to their strict legal meaning; unless usedby the parties in a technical sense, or unless a special meaning is given tothem by usage, in which case the latter must be followed.[/font]

[font="Calibri","sans-serif"]§1647. A contract may be explainedby reference to the circumstances under which it was made, and the matter towhich it relates.

§1648. However broad may be the terms of a contract, it extends only to thosethings concerning which it appears that the parties intended to contract.

§1649. If the terms of a promise are in any respect ambiguous or uncertain, itmust be interpreted in the sense in which the promisor believed, at the time ofmaking it, that the promisee understood it.

§1650. Particular clauses of a contract are subordinate to its general intent.[/font]

§1652. Repugnancy in a contract must be reconciled, if possible, by such aninterpretation as will give some effect to the repugnant clauses, subordinateto the general intent and purpose of the whole contract.

§1653. Words in a contract which are wholly inconsistent with its nature, orwith the main intention of the parties, are to be rejected.

§1654. In cases of uncertainty not removed by the preceding rules, the languageof a contract should be interpreted most strongly against the party who causedthe uncertainty to exist.

§1655. Stipulations which are necessary to make a contract reasonable, orconformable to usage, are implied, in respect to matters concerning which thecontract manifests no contrary intention.

§1656. Allthings that in law or usage are considered as incidental to a contract, or asnecessary to carry it into effect, are implied therefrom, unless some of themare expressly mentioned therein, when all other things of the same class aredeemed to be excluded.

[font="Calibri","sans-serif"]I'll provide additional commentarylater. I'll only say this now. Readers should not be impressed by my argumentsor those of anyone else simply because citations to sections of law areincluded (“Ooooh, he knows law, he must be reeeallly smart and reeaallly knowwhat he's doing” – Not necessarily, any fool can cut-n-paste, go read it). Golook for yourself, see it and read it in context. It may appear to contradictitself, but it doesn’t really.[/font]

[font="Calibri","sans-serif"]Forexample, the section that says that you can glean intent only from the writing (1639)is true, but it is also true that you may have to do what might seem to you tobe going beyond the deed because you have to find out what the conditions andsituation was at the time the agreement was first executed (1636, 1647). Butthat's not going beyond the terms of the deed at all. It is reading them as thelaw intends you to. [/font]

[font="Calibri","sans-serif"]Asa surveyor interpreting a deed in order to glean the intent from the terms ofthe description, you do not have the option of looking only to one or twosections, or parts of sections of law. You must apply all of them. It isnot necessary that you have correctly discerned all of the conditions thatexisted and discerned intent with full correctness in that context, but it isrequired that you made a diligent effort to do so. Refusing to make that effort, IMO, isnegligent, especially if you are aware of the law. And you, after having read this, are nowaware of this law.[/font]

[font="Calibri","sans-serif"]Gohere http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=7936647016+0+0+0&WAISaction=retrieve if you are interested to read it for yourselfand are interested to see if omitted sections have any significance to thepractice of surveying.[/font][/font]

[dmi]

Evan,thanks for your detailed post on this subject. I had been intentionally looking at a very narrow aspect of what is we do when we construe a deed. I agree with you on the role the surveyor plays with respect to this issue.

Bryan, I said I am sorry to you publicly. I do not subscribe to your notion on professionalism on every singe point nor do I need to do so. I made a couple of pointed comments, far more gentle than some of the things mentioned by Mr. Page, did you send him a private message as well calling his professionalism into question?
So no I did not view your snotty private message as a courtesy. Let's just put this personal hiccup behind us, Okay?

Now as I understand the terms of the debate, they are as follows

Surveyors cannot or ought not discern the intent of the parties when construing a written deed.

I stated that I concur with Brown and cited the relevant passages in support of my concurrence.

[bryanmundia]

Dane,

Wow

[Dave Karoly, PLS]

Again-original, established monuments control.

I don't need a Judge to tell me that.

[7702]

How about those 'Niners?

[Dave Karoly, PLS]

Apparently the Golden State Warriors will be moving to San Francisco while the Niners move to Santa Clara or something like that.

[Propst]

I believe Dave Karoly gave the best advice in how to deal with this particular fact set in his original post:
“However, it would be in the best interests of you, the Agency and the Property owners to have the Agency and the Property owners reform the Deeds if at all possible.â€￾

My theory on what happened here:
The parties enter negotiations on a transfer. They start with one set of limits and over time those boundaries are moved and adjusted until everyone agrees on a final location.
The person preparing the transfer documents includes an earlier version of the agreement rather than the final one.
That gets recorded, and no one at the time notices.
(this has happened to us before, and it took TEN YEARS to get all the various parcel descriptions reformed)
The surveyor, who had prepared his RS based on the final agreement, submits it as soon as the deed records without comparing the RS to the Recorded Deed.
Oops.

Now, we don’t have any evidence that this is what occurred in this case, but if we did, and the parties were adversarial about the boundary location, then the attorney for the side which insisted on the boundary as shown on the RS would introduce that “extrinsic evidenceâ€￾ (i.e. correspondence between the parties in the course of negotiations, and the final agreement which is at variance to the premises as described in the deed) to the court for its consideration in coming to a conclusion as to the actual intent of the agreement. (of course the other side is going to argue CC 1625, but the Judge will work it all out, eventually)

But I think some are confusing the terms of the contract (deed) with the description of the property contained within the contract (deed).
We aren’t drawing any conclusions on the terms of the contract when we opine on the location of the boundaries of the property which is the subject of the contract.

In this discussion I’d have to agree with Dave Karoly as to the best solution, and Dane and Evan’s take on interpretation.