California Surveyors Forums

Dane,

In your response to me, you stated exactly why there is no Patent Ambiguity, that is that it would not be considered void by the court. It is surveyable and any defects can be cured by extinsic evidence.

No one ever said that you did not correctly identify one or more potential problems, only that those potential problems do not represent patent defects.

Look it up in Black's or any standard survey text that addresses the definition of patent and latent defects with respect to deeds and descriptions.


Ben,

If you were looking at the call to the POB as being ambiguous, look elsewhere. The description clearly stated that the POB was 1200' South of the Sec Cor, on the Sec Line. I know of no doctrine that would have you interpret that 1200' as being measured in any way other than along the Sec Line.

Evan, I’m not trying to pick a fight. My previous post was trying to explain that the bearing "SOUTH" could mean compass or astronomic (I believe this is also what Dane is saying). In this case "SOUTH" is also the bearing of the section line per the call “thence continue south along the section line.”

If the call said “thence continue SOUTHERLY along the section line” I would say the bearing of the section line was not given. Since the bearing of the section line was given, I do not believe there is a patent ambiguity (this has nothing to do with the POB, see my post 03-10-2009, 10:14 AM).

In other words, if the official plat said the bearing of the section line was "N 01° E", would you still measure 1200 feet along the section line (the hypotenuse of the triangle) OR would you go 1200 feet at an astronomic bearing of south (the north-south leg of the triangle).

For some reason, I did not have the same question that “good” had regarding whether or not to hold the angle relationships of the courses vs a compass bearing.

Ben,

My take is if the word was CAPS I would interpet the bearing as South, but since it is not I would take it as a general direction, but it doesn't matter as the call to the line trumps the direction. I would consider holding South to determine the angular measurement to the next course, other than that I am with Evan, there is no problem here. Let us keep it simple. Also consider the text of the adjoining deed. Without other info, this is cut and dry to me.

Evan,
Is it really necessary to look down on others? Your presumption that , I am lacking in my studies,is troubling.This presumption leads me to believe that you think I have have never cracked a surveying text, nothing could be further from the truth. But, how else could I take the remark?

The term "patent" is used in a number legal senses ,such a "patent defect".
In a general sense,its meaning is that it is obivous by simple inspection. In contract law, a patent defect can void the agreement. If you look back at what I said, I believe that I was careful to add qualifiers to my statement, could be, possibly, potentially.

So for the sake of agrument, lets say the deed course "1200 feet south "caused you to do a little more research. We all know that the implication is 1200 feet south along the section line from reading the deed in its entirety and giving full mean to all its part. But, on the day you read this particular deed you notice that the course itself does not has a specific bounds call and so having a wild hair you order up the previous deed in the chain of title. When you get this deed and it reads mostly the same as your current deed, except the point of beginning is decsribed as being 1200 feet south and 200 feet , then you finally get your complete package of adjoiner deeds form the title company and lo and behold all the other deeds have a similiar form of describing the POB. Then futher reseach reveals the origin of the language in your current deed to be the langauge created by an attorney
who thought the language in the previous deed was impeerfect and needed to be cleaned up, since the attorney was hired to take care of probate matters for the family and this attorney was a real go getter wanting to do a bang up job. They decided to FIX this pesky problem as well.

It is hypothectical. What else could it be since we only have a deed to review. The deed is only one part of the picture. There is more evidence needed to put that deed or any deed on the ground. So, if evidence had been found that the current deed had been improperly redescribed, the grantor cannot sell what they do not own.....to that extent the deed is voidable.....

Are there not perfectly fine descriptions, from the point of being surveyable, that are in fact bad deacriptions.

Imagine, the land in this area is undeveloped and the description says 1300 feet south(instead of 1200) and it got surveyed 60 years ago, the survey is unrecorded and no one kept copies of the survey and the wood hubs are now all gone, but the then owners fenced and occupied to the survey location.

Ben,
My comments had to do with retracing the deed and contemplating where to search for evidence that may have been set in laying out the deed,if it had ever been surveyed before. One needs to know how they would have laid out this deed, or you will not find the evidence in the field. The searching for evidence is not strictly a math exercise. Direction is going to yeild to the call for the line and the physical evidence you find of the establishment of that line.

Mr. Thinskin,

I was not looking down upon you or suggesting that your studies have been inadequate. I was pointing out that you were incorrectly using the term "patent" as that has a very specific meaning when applied to deeds and other legal documents, such as contracts.

You had plenty of opportunity to clarify that point, but instead dug your heels in on your mistaken use of the term.

I was merely trying to remind you of a fact I thought you already knew (proper definition of the term patent), and then trying to educate you as to its meaning, directing you to authoritative texts as you are not inclined to take my word for it.

I wonder, when you were a tyke coming up through grade school, hs, and college, if you similarly thought that all of your teachers and instructors were trying to belittle you as they covered the course materials.

Get over it Dane. This ain't a fight.

Evan: Ben has a point.

This is the same argument that is made when attempting to determine where the parallel line goes.

Is it measure perpendicular to the parallel line or along the side line? If the two are relatively close, it doesn't matter much. When the two diverge, there may be significant difference in the location of the line.

Ben: Interestingly, the two situations are usually opposite each other in interpretation. In hte case of the sectionalized land problem, I would take the direction as meaning "southerly-ish, sort of, but controlled by the location of the section line in question, and EXACTLY this distance along that line."

Unless otherwise stated, though, I would place the parallel line at the perpendicular distance fro mthe line to which it is supposed to be parallel, even if the sideline bit is significantly longer. Example: Thence southerly-ish-sort of, 14.14 feet to a line parallel with the previous course and 10 feet southerly thereof... (in the case where the first line and the current line are at 45º to each other).

Just my take...

Evan and Dane:

Although somewhat unusual, I have come across a number of cases where to sections lines were not at cardinal directions. In some cases, one line was considerably off cardinal by 30º or more!

In those cases, the description staring at a particular section corner and running in a direction a certain distance could well be a PATENT defect if the bearing of the line is, say, South 30º West. The location of the next course is dependent upon whether the distance is measured along the section line or measured on the cardinal direction or measured parallel to the northerly line of the section or part of the section.

Remember that a PATENT defect in a deed is one in which the wording or language becomes ambiguous. The LATENT defect is one in which the defect is hidden and not discernable even through, as Black’s 6thEd puts it, “…[an] inspection made with ordinary care…” To me, having a copy of the GLO plat, at the very least, is critical to reading such deeds.

With the map AND the deed, the question becomes a PATENT defect. After more research and field work, the defect may be reduced to a LATENT defect which might be resolvable from further research or field work.

Patent and latent are not interchangeable and do carry differing specific meanings, both of which are germane to deed defects and, in my opinion, this discussion.

The deed given states: "beginning at a point on the west line of said section, 1200 feet south of the section corner". The next call confirms that is was along the section line, but the POB says very clearly: "beginning at a point on the west line of said section". Where are you? On the section line. How far from the Section Corner are you, on the section line? 1200 feet "south". So you're on the section line, and you're 1200 feet "south" of the section corner. What bearing are you, being 1200 feet away from the Section corner: South 00-00-00 East.

The term "south" is the bearing that the original surveyor used for the section line. Hold the angular relationship to this line when laying out the south line.

"thence continue south along the section line, 200 feet; (no brainer, unless the 1/16 cor is run into first, then you'll have to figure out what they were thinking since they don't call it out.) "thence S 89 40' E, distant of 300 feet;" (turn an angle of 89d40' from the line you measure left from the section line) thence north, parallel with said section line, 200 feet;(Is it north, or is it parallel?- it's parallel because it a superior call per common law and priority of calls, "north" is simply informative of the bearing the surveyor ran- now you have a different basis of bearings to turn the next angle from) "thence N 89 40' W distant 300 feet to the point of beginning. " (Turn an angle of 89d40' right if you like, but the hold is the POB. This should be a forced closure.)


I don't see any ambiguity either.

I never said there was an ambiguity. I said that the deed contained an unqualified course. The deed read in its entirety leads everyone to the same conclusion. I was merely speculating on a hypothectical set of facts, that I made up in my mind where there was a potential for a patent ambiguity. As written there is none, but as to the point of my speculation there is. Without having fully explained what I had in mind, Evan chimed in that I did not know what I ws talking about and as he says it is not a fight , we were just talking at cross purposes.

Ian, I appreciate the thoughtful input.

Eric,

I'm not sure what you meant here:

"(turn an angle of 89d40' from the line you measure left from the section line)"

never mind. I see.

Ian, I see what you're saying. I drew a line 1200' long with a bearing of South and compared that to a line that was 1200’ long with a bearing of North 01° East (assuming this is the bearing of the section line). So the difference between measuring along the section line and measuring directly South is 0.18’.

Given the case of the bearing of the section line of South 30° West the difference between measuring along the section line versus a point that is 1200’ South is 160.6’!

Eric, I’m not sure if anyone is arguing that the deed language is so ambiguous that it cannot be located on the ground. I agree with your methodology for laying out the description, well put! The only thing that confused me was your statement, “unless the 1/4 cor is run into first, then you'll have to figure out what they were thinking since they don't call it out.”

Ian,

You are correct that because the deed calls the section corner and section line, you should be looking at the GLO plat as a part of the deed by reference.

In the vast majority of circumstances, the section lines were within 5 degrees of cardinal. This description could become arguably patently defective only under a very rare set of circumstances. It doesn't make sense to me to work so hard to come up with rare hypotheticals to state why this might be patently defective.

If a description is surveyable by its terms, or can be properly deciphered through extrinsic evidence. It is not patently defective. If it were patently defective, there is nothing that can downgrade it to latently defective, it's junk from the get go.

Good presented us with a description, and later presented us with the solution solved with a little extrinsic evidence. It was not patent... as Dane plainly stated it was in the 7th post down on page 2 of this thread.


Dane,

If it pleases you to think I was making fun of you or belittling you, go ahead. It's beginning to seem to me that if I opened a door for you, you would run headlong into the wall and claim I slammed the door in your face.

I think the "economic slowdown", as "W" called it, has everyone a bit on edge.

Remember those movies where after all the widespread destruction has finished and its gotten all quiet...the little animals are starting to peek out from under their hiding places...the birds are starting to sing...fresh new blades of grass are sprouting....

Am I the only one to feel that way right now?

"If it pleases you to think I was making fun of you or belittling you, go ahead. It's beginning to seem to me that if I opened a door for you, you would run headlong into the wall and claim I slammed the door in your face "

I have no idea what the purpose of the above comment is. It is of no use to me, but thanks anyway. Usually when people complain about the way they are being treated, it provides an opportunity for reflection. At that point one could stop and relflect and come to one of 2 conclusions

One
The person that is complaining is an indiot and deserves another heaping helping of abuse, so continue the name calling.


Two
Perhaps, I have unintentionally offended the sensiblities of another, who maybe a little more sensitive than I am and perhaps an explanation and an apology are in order. Nah to to he!! with that, its to much fun to torture the dumbbell bombs away!!!!!!


Sincerely submitted for your consideration
very truly yours MR THINSKIN

Please excuse me if I have added to the sense of widespread destruction, that was certainly not my intention.

Dane,

I'm sorry that your feelings were hurt. It's too bad when professional discussions and disagreements become personal.

Evan,
No problem, I do want to say that you add immensely to those discussions and I really appreciate your participation. I do realize that you are a first rate professional and when you respond to other's posts, that you have no other agenda other than furthering the discussion in a productive fashion.

I didn't mean 1/4 cor but 1/16th corner. Sorry. 1/16th corner are set at 1,320 feet in a perfect world. Not usually done by the original but by a subsequent surveyor. I was typing too fast on my break.
Basically you're 1400 feet south of the section corner, but what if there is an angle point created by a 1/16 corner?

I'll fix it.

I've been busy with assignments the last few days, did I miss anything?
First: E_Page, your explanation of "Practical Location" in post 51 is terrific. It is short, easy to understand and most importantly CORRECT! Too many surveyors confuse it with unwritten title, I suppose because of the importance of improvement locations. You should be an instructor somewhere.
Often your posts serve as an antidote to the poisonous misinformation which some are only too willing share with the commmunity. Keep up the good work and dont let some overly sensitive know it all shout you down. Particularly when that person makes a PATENTLY wrong statement, and then refuses to admit it.

Second: I think most surveyors understand what was meant by the attorney's statement that "a boundary dispute is usually a dispute between surveyors"
As I explained in post 26 "The point being that if both plaintiff's and defendant's surveyors agreed as to the boundary location there would be no basis for dispute."
Did the parties disagree prior to the surveys? Possibly, and maybe probably they did, but not always.
For instance, in Hirschfield v Schwartz (2001) 91 Cal App 4th 749, the adjoiners got along fine until the survey disclosed encroachments. Is that the surveyor's fault? Of course not.
But my reply was to the statement of a certain individual poster that "Of the numerous cases I have read, not a one started with the phrase .... everything was fine till the surveyor showed up."
Well, there's one from this state and in this century.
Here's another where the court says "There was no dispute as to the location of the boundary until the defendant purchased his lot, had it surveyed, and then built his fence." Moore v Ottawa Equipment Co. 26 Mich App 89 (1970) In that case the surveyor CAUSED the entire problem by his misunderstanding and misapplication of boundary reestablishment.
It can happen, dont let it happen to you.
You might want to read the cases, the Hirschfield case is one of the easier cases to digest, well written, informative and entertaining.

I think many will see proof in this very thread of what I said about surveyors being rather disputatious and attached to their solution as the BEST, even if it is PATENTLY wrong. Most of us can read the thread and figure out pretty quickly who is correct and who is blowing smoke. Except the guy blowing smoke. Which brings me to ...

Third: I enjoy a good discussion about issues in surveying, and usually we have them here. There are a few however who seem to think they must dispute every statement posted, I suppose to show their own "superior knowledge" of the issues at hand. One in particular took it on himself to cast aspersions on my logic by the old reduco ad absurdum method. I will not name names, but will instead refer to him as "Disputatious Individual", or DI for short. His arguments usually go like this:
ME: Surveying is fun!
DI: I beg to differ, surveying is hard work and requires years of study.
ME: Well, sure, there is a lot of hard work but I really enjoy surveying.
DI: You make no sense! first you say its fun, then you agree its hard work. Choose one or the other, you're confusing me.
ME: well, the field work is fun
DI: I know a surveyor who was attacked by killer bees and died! Do you think he thought that day in the field was fun?
ME: well, uh....
DI: Your logic is flawed!
Surveyor B: I think surveying is fun too!
Surveyor C: Yeah, surveying is really really fun!
DI: I never said surveying wasn't fun. You have to carefully read what I said.
Surveyor B: That was implied by your disagreement, wasn't it?
DI: You missed the SIMPLE point I was trying to make.
Surveyor C: yeah, I thought you were in disagreement as well.
DI: Why is everyone picking on me?


cheers!

826
thanks for the 2 case cites. I will enjoy reading them. I wonder have many land surveys have been done prior to and since the 2 cases you cite.

BTW who are you and why do you post via secret identity? Would you still post the same kind of remarks if everyone knows who you are ?

"CLSA advances the interests of the profession of Land Surveying, to maintain the highest possible standards of professional ethics and practice, to encourage uniformity of practices and procedures, and foster public faith in and understanding of Land Surveyors and their work."

Thanks Mark for the citation.

Surveyor 826 and Evan,
To be honest, I was (and still am) one of those surveyor’s that thinks practical location is grouped with “Unwritten Tranfers of Land Ownership.” I could be totally wrong here but the evidence I have of this is found in Evidence and Procedures for Boundary Location (Chapter 13 5th Edition, Chapter 3 2nd Edition, French v. Brinkman, 60 Cal 2d 547, 551; 387 P 2d 1 (1963)).

Some food for thought:
“On occasion deeds may not be definite in defining the limits of a particular thing. For example, a deed reading ‘all of Lot 1 and a 20-foot wide road easement across Lot 2” lacks an exact location for the easement mentioned. But if the owner of Lot 1 uses a particular place for a period of time, that particular place becomes the correct easement line by practical location. The reasoning is simple; since that location was used, there must have been an agreement, either verbal or implied, between the parties. Seeming ambiguities may not be ambiguities at all; a simple inspection of the land for evidence of usage sometimes provides the answer.

“Evidence of practical location may only be received to clarify an ambiguity; it may never be used to overcome clear, concise, unambiguous words in a deed; it may not be used to create an ambiguity. If the easement above were defined as to location in the deed, evidence of usage would be incompetent to overcome the written words unless such usage ripened into a possession right.” (EPBL pg 32 2nd Edition)

“Five general means by which a person can gain or lose land areas, or rights to land areas, without writings are these:
1. Those involving agreement, either expressed or implied; this would include agreement, practical location, silent recognition and acquiescence, and even the doctrine of estoppel, where both agreement and dishonesty enter.” (EPBL pg 80 2nd Edition)

The only court case that I could find was referenced in the “Disputes over the Location of Existing Walls or Fences in California” article. “Trial court gave plaintiff quiet title judgment. Appellate court affirmed on ‘either / or’ practical location / agreed-upon boundary.”

Does anyone have any California court cases citing practical location as the solution?

Ben,

This reference that you provided...

“Evidence of practical location may only be received to clarify an ambiguity; it may never be used to overcome clear, concise, unambiguous words in a deed; it may not be used to create an ambiguity. If the easement above were defined as to location in the deed, evidence of usage would be incompetent to overcome the written words unless such usage ripened into a possession right.” (EPBL pg 32 2nd Edition)

... explains exactly why Practical Location is not a form of unwritten right. It does not constitute a transfer of land, but can only serve as clarification to an ambiguous written transfer.