John Rinaldi Jr., P.L.S.
Table of Contents:
Legal
Requirements
Practical
Requirements
Elements
of Real Property Descriptions
Types
of Descriptions
Common
Words and Phrases
Curves
Preservation
of Junior and Senior Rights
Nevada
Statutory Requirements
Effects
of Insufficient Real Property Descriptions
Author's
Note
LEGAL REQUIREMENTS:
The Statute of Frauds (adopted
in England in 1677 and later incorporated into the laws of the United States) required that contracts be in writing. One of the
five types of contracts included in this statute was for the conveyancing of real property wherein it is required that the
memorandum (deed) or note be signed by the party charged, or by his legal
representative.
The Statute of Frauds is included in the Nevada
Revised Statutes under the chapter pertaining to "Estates in Property;
Conveyancing and Recording," (NRS 111). This
statute reads:
111.105
Conveyances by deed. Conveyances of lands, or of any
estate or interest therein, may be made by deed, signed by the person from whom
the estate or interest is intended to pass, being of lawful age, or by his
lawful agent or attorney, and acknowledged or proved, and recorded, as directed
in this chapter.
This statute, similar in
content to that of many other states, requires that the instrument be in
writing, signed by the owner, acknowledged, and recorded.
PRACTICAL REQUIREMENTS:
- Descriptions should be clear and concise
- Descriptions should be grammatically correct
- Descriptions MUST describe the land with certainty and to
the exclusion of all other interpretations
The following sections of
this paper will go into these aspects in more detail; however, one has to
wonder as to what standard sufficiency can be measured. While there are
excellent texts that explain the various types of descriptions and their proper
usage, there is little written on actual sufficiency.
Gurdon H. Wattles, in Chapter 7 of Writing
Legal Descriptions, explains that sufficiency is one of the first details
to look for in the analysis of any description and that sufficiency is
related to the adequateness of references to documents in the public record,
calls to monuments, certainty in dimensions, and the completeness of the
necessary facts. (emphasis added)
Further, a section of the 1979 Specifications
for Descriptions of Tracts of Land for Use in Land Orders and Proclamations,
by the Cadastral Survey, Bureau of Land Management, U.S. Department of
Interior, states that:
"Drafts of proposed
proclamations and land orders should be carefully prepared with proper regard
for established good usage as to terminology, phraseology, punctuation,
arrangement, and paragraphing. The description of the tract or tracts of
land involved should be technically competent, definite, and susceptible of
only one interpretation. It should furnish sufficient information for
the identification of the land on the ground...Land descriptions should be
reviewed by an officer qualified to pass upon the technical sufficiency and
form thereof, who has access to the basic survey data
and other records from which the draft of the proposed order was
prepared." (emphasis added)
What
makes a "Legal Description" . . . Legal?
This question is seldom asked and, in my
opinion, has led to the mistaken belief that professional land surveyors can
prepare instruments of conveyance, such as grant deeds and easement documents.
Simply stated, it is the inclusion of a description into an instrument of
conveyance that causes the description to become a legal description. This, I
believe, has been the natural result of the labeling of these descriptions as
"legal descriptions."
It must be remembered that the
inclusion of a description of real property into such instruments of conveyance
constitutes the practice of law. Therefore, unless you are licensed to practice
law, or are preparing instruments at the request of an attorney, you must refrain
from preparing these documents. As a practical matter, however, it is presumed
that such documents are prepared under the direction of an agency's legal
representative when non-attorneys in public agencies draft the documents. The
same may be true for those large engineering/surveying firms who have an
attorney "employed" by virtue of a full-time retainer.
For this reason, the terminology for a
description of real property used in this paper does not include the word
"legal."
ELEMENTS OF REAL PROPERTY
DESCRIPTIONS:
General Provisions
- Do not write out numbers
- Use a colon to end the preamble
- Use a semicolon to end each course
- Do not capitalize general direction calls:
...
southwest corner
... west 50 feet
- Curves are considered tangent unless otherwise stated
- Do not use "True Point of Beginning;" instead use
"Commencing at" and then proceed to the "Point of
Beginning"
- Follow the area of the land described with "more or
less;" this assures that the area of the land described is not
considered a "bound" or given more significance than intended
- Adjectives describing a line are not capitalized
- Spell out units:
...
North 89°57'26" West 135.36 feet
Caption or Preamble
The caption is the first element of a
description and appears first on the page. It is the statement that recites the
general location of the property to be described and functions to limit the
extent of what is to follow in the body of the description. For example:
A
portion of the NW1/4 of the NW1/4 of Section 5, Township 21 South, Range 61
East, M.D.M., City of Las Vegas,
County of Clark,
State of Nevada, described as follows...
Note
that if the description that followed included any lands located in another
1/16 of the section, those lands would not be included in the conveyance.
Therefore, care should be given to the language contained in the caption.
Body
The main portion of the
description. For example:
BEGINNING
at a point on the south line of said Section 5, said point being South 89°25'17"
East, 165.21 feet from the southwest corner of said Section 5; Thence North 01°54'23"
West 345.91 feet...
Limiting Clauses
Often called qualifiers, these are used to
limit or preserve some rights for the grantor or to recognize a previous conveyance.
They can also be used to grant a right (easement) to a third party.
EXCEPTING
THEREFROM, the south 30.00 feet thereof for...
RESERVING
THEREFROM, the easterly 20.00 feet thereof for private road and public utility
purposes...
The term SUBJECT TO refers
to some right or grant already in existence, such as a
mineral right, easements, etc., and are often included in the deed to ensure
continued passage with each successive conveyance. Let the title company or attorney include these, not you.
Augmenting Clauses
These are used to attach some thing or a
right or privilege to the property being described. For example:
TOGETHER WITH a perpetual view easement...
TOGETHER
WITH a reciprocal access easement across...
Miscellaneous
- The basis of bearings used for the description.
- Identification of the end of the description by including "END
OF DESCRIPTION."
- The validated seal or stamp of the registrant responsible for
preparation or issuance of the description. In Nevada, this is required by state law (NAC 625.790).
- Sometimes a description is prepared for the purpose of a lease or
mortgage of a portion of a parcel of land. In states that only permit the
creation of additional parcels or subdivisions of land by a mapping or
platting process, the following clause should be added to the end of the
description. This provides protection for the preparer of the description
should the description be used for an actual conveyance:
"The
above described parcel of land represents a portion of (state here what the
parent parcel is) and is not intended for inclusion in a document conveying fee
ownership. To do so is a violation of state law and/or local ordinance."
- The following clause should be added to the description of a
portion of a parcel of land prepared for the adjustment of a boundary line
or the vacation of a fee-owned right-of-way:
"The
above described parcel of land is to become part of and adjoined to (state here
what the adjoining parcel is)."
TYPES OF
DESCRIPTIONS:
Sectional Lands
- Based on the subdivision of sections by aliquot parts, such as:
The
SW1/4 of the NE1/4 of Section 5, Township 21 South, Range 61 East, M.D.M., City
of Las Vegas, County of Clark, State of Nevada.
- Based upon non-aliquot portions of a section, such as:
The west 1/2 of U.S.
Government Lot 1 of Section 31, Township 21 South, Range 61 East, M.D.M.,
County of Clark, State of Nevada.
Aliquot: Contained in
something else an exact number of times.
(Black's Law Dictionary)
Lot and Block Descriptions
- Lot 1 of Block 1 of Las Vegas Heights, according to the plat
thereof, recorded in Book 10, Page 20 of Plats, Clark County, Nevada Records.
Portions of Existing Parcels
- The west 1/2 of Lot 1 of Block 1 of Las Vegas Heights, recorded in
Book 10, Page 20 of Plats, Clark County, Nevada Records.
- The east 50.00 feet of Lot 1 of Block 1 of Las Vegas Heights,
recorded in Book 10, Page 20 of Plats, Clark County, Nevada Records.
- The east 30.00 feet and the south 30.00 feet of that parcel of land
conveyed to John Smith by deed recorded in Book 891203, Inst. No. 556,
Clark County, Nevada Records, TOGETHER WITH a spandrel area having a
radius of 15.00 feet in the resulting southeast corner of said parcel.
- The east 25.00 feet of the south 30.00 feet of the north 60.00 feet
of Lot 1 of Block 1...
Certain ambiguities in
interpretation may arise with these types of descriptions. Therefore, include a
sketch (as an exhibit) which graphically depicts the intent.
Use sketches in other types of descriptions
as well. It is interesting to note that the courts have written that when an
ambiguity exists between the written word and a map or sketch, the latter may properly
be referred to in ascertaining the intent of the grantor. (Application of Eklund, 465 P.2d 552)
Metes and Bounds Descriptions
A series of bearings and
distances around the perimeter of an area (metes), together with references to
monuments, both physical and legal (bounds). For example:
BEGINNING
at the northwest corner of that parcel of land conveyed to John Smith by deed
recorded in Book 891203, Inst. No. 556, Clark County, Nevada Records; Thence
South 04°34'51" West, along the west line of said parcel, 300.67
feet to the southwest corner of said parcel; Thence...
Strip Descriptions
A description usually for
rights-of-way such as roads, utilities and flood control channels.
- A strip of land, 60.00 feet in width, lying 30.00 feet on both (not
"either") sides of the following described centerline...
- A strip of land 75.00 feet in width, lying 25.00 feet northerly,
northwesterly, and westerly and 50.00 feet southerly,
southeasterly, and easterly of the following described line...
Although not mandatory, the
following clause may be added to the end of the description to ensure that the
sidelines terminate at the appropriate property line(s):
"The
sidelines of the above described strip of land shall be extended and shortened
to terminate at (state the appropriate property line (s))."
Absent language to the
contrary, if the centerline description terminates within the (burdened)
property, the sidelines terminate at right angles to the centerline at its
terminus.
If the centerline angle points occur near a
property line, the description must begin before or extend past that boundary
line in order to clearly define the direction of the sidelines.
COMMON WORDS AND
PHRASES:
|
A Distance of
|
Use this phrase only when a
numeric value will be followed by another numeric value.
...Thence
North 00°21'15" West, along the west line of said Section 23, a
distance of 664.12 feet...
This term is often
overused and adds redundancy to descriptions. Except for the above situation,
avoid using it, i.e. where there is no following numeric value.
|
|
Adjacent/Adjoining
|
Adjacent means "lying
near or close to." It implies that the two objects are not widely
separated, but may not actually touch. Therefore, don't use this term to
describe objects that are intended to touch.
Likewise, the term "contiguous"
means nearly the same as "adjacent" and should be avoided. The term
"adjoining" and "coincident with" are the
best choices where two objects are intended to actually touch.
...Together
with a 12.00 foot wide easement (state its purpose and to whom it favors) the
northerly line of which adjoins/is coincident with the north line of
the above described parcel of land.
|
|
Along
|
Use this term when the preceding
course in a description terminates at a right-of-way, senior property line,
or a riparian boundary and the following course is to proceed along that
boundary. Use of this term ensures that if a retracement
of the description results in a different direction of that boundary, the
described line will be coincident with it.
...Thence
North 02°23'47" West, along the centerline of Jones Blvd., 34.81 feet...
|
|
Both
|
Use this term in strip descriptions
where the right-of-way lines are on both sides of the described centerline.
The term "either" is often used and
incorrectly gives the indication of a choice.
A
strip of land 40.00 feet in width, lying 20.00 feet on both sides of
the following described centerline:
|
|
Conveyed/Described
|
These terms are used when
the line being described is intended to terminate or run along a senior
property line. The use of the term "conveyed" is not
interchangeable with the term "described". There may bean ownership
difference between what was described on the deed vs. what was actually
conveyed by the document. Therefore, careful attention must be given when
using either of these terms.
...to
a point on the south line of that parcel of land conveyed to John
Smith by deed recorded in Book 891203, Inst. No. 556, Clark County, Nevada
Records...
...to a point on
the south line of that parcel of land as described in Book 891203,
Inst. No. 556, Clark County, Nevada Records...
|
|
Exceptions and
Reservations
|
Use "excepting therefrom" when the language to follow is not
intended to be included in the preceding description. This phrase is an
important element in a description for the preservation of senior
rights.
...EXCEPTING
THEREFROM, that portion of the above described parcel of land conveyed to
John Smith by deed recorded...
The term "reserving therefrom" operates to give or preserve some
privileges for the grantor or a stated third party. It therefore denotes a
use or easement.
...RESERVING
THEREFROM, the easterly 20.00 feet thereof for private road and public
utility purposes in favor of that parcel of land conveyed to John Smith by
deed recorded...
|
|
Parallel
|
Use this term when the
direction of a line is intended to have the identical direction of another
line. The correct preposition to be used with the term is
"with."
...Thence
North 89°58'29" East, parallel with the north line of said
Lot 4...
|
|
Point
|
Refers to a specific location,
usually when such a point is on a subsequently named object.
...451.21
feet to a point on said west line of Lot 7...
Avoid using this term
where no qualifier follows.
|
|
Prolongation
|
This term is used to
extend a line. The term "continuation" is used to extend a
curve.
...Beginning
at a point on the centerline of Jones Blvd., said point being on the westerly prolongation
of the south line of Lot 2 as shown on Parcel Map...
...Thence North
01°04'09" West, along the west line of said Lot 1 and its
northerly prolongation, 231.06 feet to a point on the centerline of...
|
|
Right Angles
|
This term is used to
denote a specific relationship to another object.
...334.81
feet to a point 40.00 feet southerly of, as measured at right angles to,
the centerline of...
|
|
Said
|
This term is used to avoid
unnecessary redundancy in descriptions. It refers only to a preceding matter,
never to one that follows. The term "aforesaid," although synonymous,
is archaic and is not recommended.
...12.00
feet to a point on the west line of said Parcel 3; Thence North 01°01'35"
West, along said west line, 145.00 feet;
|
|
To
|
Use this term freely to
indicate the actual terminus of a line you are describing, regardless of the
actual stated terminus of the line in feet.
...Thence
South 67°34'12" West 64.87 feet to a point on the
centerline of Jones
Blvd....
...North 89°45'21"
West 300.97 feet to the southwest corner of Lot 2...
|
CURVES:
There are many ways to describe curves. Some
variations are a result of regional convention. However, some aspects of
describing curves are fundamental. At least two elements of a curve are
required for definition (usually radius and length). It is conventional,
however, to add a third element for a check. Additional elements must be added
to define the orientation of the curve and the direction of travel along it.
Following are ways to describe various curves:
Line to Tangent Curve:
...North
23°16'52" East 700.00 feet to the beginning of a 25.00 foot radius
curve, concave northwesterly; Thence northeasterly along said curve 5.45 feet
through a central angle of 12°30'00"; Thence North 10°46'52"
East...
Line to Non-tangent Curve:
...North
00°11'54" West 162.50 feet to a point on a 250.00 foot radius
curve, concave southeasterly, the radius point of which bears South
31°21'47" East; Thence northeasterly along said curve 32.94 feet through a
central angle of 07°33'00"; Thence...
- OR -
...North
00°11'54" West 162.50 feet to the beginning of a non-tangent 250.00
foot radius curve, concave southeasterly, the radius point of which bears...
Compound/Reverse Curve:
...Thence
westerly along said curve 100.72 feet through a central angle of 54°11'10"
to the beginning of a 200.00 foot radius compound/reverse curve,
concave southerly (the radius point of which bears South 20°11'44"
West)...
Curve to Non-tangent line:
...Thence
northeasterly along said curve 88.91 feet through a central angle of 23°15'36";
Thence North 39°12'45" West, non-tangent to said curve, 672.45
feet...
The above method of
describing curves is preferable in that it gives the curve information in much
the same order that a draftsperson would use if plotting the curve (i.e., a
logical progression) and is adaptable to the wide variety of situations that
can occur.
PRESERVATION OF
JUNIOR AND SENIOR RIGHTS:
In the preparation of property descriptions,
it is essential that the seniority of previously conveyed properties be
preserved. The proper use of many of the common words and phrases outlined
earlier will assist in that endeavor.
This topic is complex, and a thorough
discussion is beyond the scope of this paper. The following, however, will
serve as an introduction to this topic.
Parcels that were conveyed of a larger
parcel of land are entitled to their full measure. The subsequent conveyance of
another portion of the larger parcel is junior to the preceding parcel and
senior to any subsequent to it. Therefore, a properly written description will
include, where appropriate, adequate references to senior property lines.
Failure to reference the seniority of an
adjoining property line could result in alternate locations of property lines,
gaps or overlaps, and possibly cloud the title.
Consequently, when preparing property
descriptions on lands conveyed by metes and bounds or a portion of an existing
parcel, it is essential to research the history (back to the initial
conveyance) of each parcel of land that abuts the land being described.
Remember:
"First in time is first in line."
Generally speaking, descriptions by aliquot
portion of a section (i.e. the NW1/4 of the SE1/4 of Section 14...) have the
effect of a simultaneous conveyance, even though each portion of the section
may have been patented at different times. Therefore, junior/senior rights do
not normally pass or accrue to these types of lands.
NEVADA STATUTORY REQUIREMENTS:
(From Nevada Revised Statutes and Nevada Administrative Code)
NRS 111.312 Requirements for recording
certain documents relating to real property.
1. The county recorder
shall not record with respect to real property, a notice of completion, a
declaration of homestead, a lien or notice of lien, an affidavit of death, a
mortgage or deed of trust, or any conveyance of real property or instrument in
writing setting forth an agreement to convey real property unless the document
being recorded contains:
(a) The mailing address of the grantee or, if there is no grantee, the mailing
address of the person who is requesting the recording of the document; and
(b) Except as otherwise provided in subsection 2, the assessor’s parcel
number of the property at the top left corner of the first page of the
document, if the county assessor has assigned a parcel number to the property.
The parcel number must comply with the current system for numbering parcels
used by the county assessor’s office. The county recorder is not required
to verify that the assessor’s parcel number is correct.
2. Any document relating exclusively to the transfer of water rights may
be recorded without containing the assessor’s parcel number of the
property.
3. The county recorder shall not record with respect to real property any
deed, including, without limitation:
(a) A grant, bargain or deed of sale;
(b) Quitclaim deed;
(c) Warranty deed; or
(d) Trustee’s deed upon sale,
unless the document being recorded contains the name and
address of the person to whom a statement of the taxes assessed on the real
property is to be mailed.
4. The assessor’s parcel number shall not be deemed to be a
complete legal description of the real property conveyed.
5. Except as otherwise provided in subsection 6,
if a document that is being recorded includes a legal description of real
property that is provided in metes and bounds, the document must include the
name and mailing address of the person who prepared the legal description. The
county recorder is not required to verify the accuracy of the name and mailing
address of such a person.
6. If a document including the same legal description described in subsection
5 previously has been recorded, the document must include all information
necessary to identify and locate the previous recording, but the name and
mailing address of the person who prepared the legal description is not
required for the document to be recorded. The county recorder is not required
to verify the accuracy of the information concerning the previous recording. (emphasis added)
NRS 327.090 Purchaser or mortgagee need not
rely on description depending exclusively on coordinate system. Nothing contained in this chapter requires any
purchaser or mortgagee of real property to rely on a land description, any part
of which depends exclusively upon either of the systems* established by this
chapter.
* referring to the "Nevada Coordinate System of 1927” and “Nevada
Coordinate System of 1983" (author's
note)
NRS 278.325 Mapping for industrial or commercial development;
requirements for creating boundary by conveyance.
… 3. Except as otherwise provided in subsection 4*,
a boundary or line must not be created by a conveyance of a parcel from an
industrial or commercial subdivision unless a professional land surveyor has
surveyed the boundary or line and set the monuments. The surveyor shall file a
record of the survey pursuant to the requirements set forth in NRS 625.340. Any
conveyance of such a parcel must contain a legal description of the parcel that
is independent of the record of survey. (emphasis
added)
* referring to a boundary or line that is
created entirely within an existing industrial or commercial building (author’s note)
NRS 625.565 Unlawful use of signature or stamp of
professional engineer or professional land surveyor; regulations; penalty.
1. A professional land surveyor may practice land surveying and prepare:
(a) Maps, plats, reports and descriptions; and
(b) Grading and drainage plans for residential subdivisions containing four
lots or less, or other documentary evidence in connection therewith.
2. It is unlawful for a professional land surveyor to sign or stamp any
map, plat, report, description, grading and drainage plan or other
document relating to land surveying which was not prepared by him or for which
he did not have responsible charge of the work.
3. It is unlawful for a professional engineer to sign or stamp any plans,
specifications or reports that were not prepared by him or for which he did not
have responsible charge of the work.
4. It is unlawful for any person to impress any documents with the stamp
of a professional engineer or professional land surveyor after the license of
the professional engineer or professional land surveyor named on the stamp has
expired or has been suspended or revoked, unless his license has been renewed
or reissued.
5. It is unlawful for any person to impress any documents with the stamp
of a professional engineer or professional land surveyor after the professional
engineer or professional land surveyor has retired from the practice of
professional engineering or land surveying.
6. The board shall, by regulation, prescribe additional requirements
relating to the signing and stamping of documents produced by a professional
engineer or a professional land surveyor.
7. A person who violates any of the provisions of this section is guilty
of a gross misdemeanor. (emphasis added)
NAC 625.790
Preparation of legal description of property. If a professional land surveyor is called upon
to prepare a legal description of real property, the professional land surveyor
shall include:
1. A sufficient caption, body, and
where applicable, qualifying clauses;
2. A clear statement of the
relationship between the real property being described and the survey control
or the basis of the unique location;
3. A clear statement explaining the
basis of bearings or language which otherwise makes definite the method of
direction and orientation for the lines of the property being described and the
survey control related thereto;
4. Full and complete citations to
maps, plats, documents and other matters of record, facts of pertinence, which
are intended to be incorporated into and made a part of the legal description
by reference thereto;
5. When called out, complete and
detailed descriptions of physical monuments, both natural and artificial;
6. When appropriate, incorporated
either directly or by citation, sufficient data to enable a check of
mathematical closure for the property being described; and
7. His name, the number of his Nevada license and his validated seal.
EFFECTS OF
INSUFFICIENT REAL PROPERTY DESCRIPTIONS:
Patent Ambiguity
A patent ambiguity is an uncertainty
in a description that is obvious from the written word on the face of the
document. A conveyance containing a patent ambiguity cannot be explained by
extrinsic evidence and may be considered as void or voidable
by the courts. For example:
...Township
21 South, Range 61 East, M.D.M., lying in the County of Nye,
State of Nevada... (This township is actually in Clark County, Nevada)
Latent Ambiguity
A latent ambiguity is an ambiguity that does
not appear in the description, but by applying the description to the ground,
causes certain conflicts to arise.
"...it is that which seemeth certain and without ambiguity for anything that appeareth upon the deed or instrument, BUT there is some
collateral matter outside of the deed that breedeth
ambiguity." (Lord Bacon, 17th Century)
...
to the northeast corner of John Smith's corral...
While the above example may
seem obviously ambiguous today, there was a time when this type of
"bound" was commonplace. Just because it is obvious today that this
is ambiguous (because its location may be unknown, lost or destroyed) it is
only a latent ambiguity. A deed must be construed as of the time it was given
and not at a later date. (Goddard v. Coerver, 412 P.2d 259)
In the case of a latent ambiguity, parol or extrinsic evidence may be admissible in applying
the description to the ground. However, parol or
extrinsic evidence may never be applied for the purpose of completing the
description itself since the description is sufficient on its face.
Parol
evidence: Oral or verbal evidence
Extrinsic evidence:
External evidence, or that which is not contained in the agreement
Junior and Senior
Rights
When a conveyance makes reference to a line
or boundary of a previously conveyed parcel of land, that land is said to be
senior. It is to receive all that to which it is due.
Consider the case of a land owner who
believes that his property is 100.00 feet wide. He first sells by deed, the
west 50.00 feet; he later sells by deed, the east 50.00 feet.
A subsequent survey of the property reveals that
his original parcel was only 95.00 feet wide. The owner of the west 50.00 feet
is entitled to the full 50.00 feet and the owner to the east gets
the remainder, or 45.00 feet. (The same situation would result if the original
property were sold by acreage.)
What would happen if the original property
contained 110.00 feet? Generally speaking, there are three possibilities:
1.
If the easterly parcel were conveyed several years after the westerly parcel,
the easterly parcel may be entitled to all of the excess. (Especially
if the original grantor had no interest in adjoining property.)
2. If both parcels
were first conveyed at the same time, or nearly so, then each parcel may share
equally in the excess. (Again, especially if the original
grantor had no interest in adjoining property.)
3. The gap may
remain in the ownership of the original owner.
Clearly, the resolution of
such a situation is difficult for land surveyors. The primary function of the
surveyor is to gather and report all possible information, which may affect the
location of a boundary. Information that should be acquired includes the
location of lines of occupation, the location of physical improvements lying in
the area of question, and the testimony of affected (interested) parties. Upon a
full evaluation of this information, the surveyor is then charged with
rendering an opinion as to the most probable solution and explaining such, in
writing, to the client.
Often, the location of occupation lines and
physical improvements will shed some light as to the intent of the parties and
assist the surveyor in formulating an opinion as to the appropriate location of
a boundary line. However, it may be that none of the physical evidence favors
one interpretation of the deed over that of another. The surveyor then must
look to the possibility of unwritten title transfers, again, by obtaining the
testimony of the affected parties and/or their predecessors.
In general, when retracing property whose
description indicates an adjoining senior interest in title, the land surveyor
is required to establish that interest. For example:
...Thence
South 42°16'54" West 300.32 feet to the southwest
corner of that property conveyed to John Smith by deed recorded... (emphasis
added)
Rules of Construction
It is well known that over the years, there
have been countless disputes over the locations of property lines. In certain
cases, the disputes revolve around language contained in the deed. As a result,
there have been several court cases, which have established the priorities for
these calls. (Scott v. Hansen, 422 P.2d 525)
1.
Natural monuments, such as rivers and lakes, or artificial monuments, such as
stakes and iron pipes, recited in the description.
2. Monuments
not recited, but disclosed by reference to maps or other documents of record.
3. The
recital of a boundary of record, such as reference to a map or deed.
4. A recited
distance and/or bearing ties to record corners or lines not on the boundary of
the subject property.
5. Distances
recited in the description without mention of any of the foregoing.*
6. Bearings
recited (or their derived angles) without mention of any of the foregoing.*
7. Area of
the parcel when stated as an addendum to the description, as in "and
containing 4.78 acres, more or less."
*
These two items are often interchanged, depending on the circumstances.
Note that the items on the
above list should be considered as general rules of construction. Most states
have adopted statutes that address the rules of construction, which must be
applied to situations in those states.
However, the application of the rules of
construction is not to be made arbitrarily. One must consider any number of
facets of the description, which may bring to light the true intent of the parties.
Some of these are:
- That which is first mentioned is preferred.
- That which is most certain prevails.
- When one set of facts conforms more closely than any other combination, that is the most reasonable solution. (Application
of Eklund, 465 P.2d 552)
- In the case of doubt in the effect of language used to form a
contract, the language is interpreted against the party who chose it
(i.e., the grantor). Doubts arising from the deed as to the intentions of
the parties must be resolved in favor of the free and untrammeled use of
the land. (Phoenix Title and Trust Company v. Smith, 403 P.2d 828)
- A call in a grant may be reversed and a line retraced in an
opposite direction, whenever by doing so, the boundaries will most nearly
harmonize with calls on monuments of the grant. (Phoenix Title and Trust Company v. Smith, 403 P.2d 828)
Most generally, however, the
following excerpt from Hurd v. Byrnes, 506 P.2d 686, is a good principle to keep in mind,
wherein the Supreme Court said:
"...we
have adopted a policy against construing conveyances so as to create strips of
land, the title of which would otherwise remain in abeyance for long periods of
time."
Therefore, it would seem
that the surveyor's responsibility in the preparation, as well as the
interpretation, of descriptions of real property is accomplished when the
descriptions are written free from the possibility of alternate interpretations
that might result in small strips of land (gaps and overlaps) AND by
interpreting descriptions, wherever possible, so as not to create small strips
of land, the title to which would be unclear and could remain in abeyance
for long periods of time.
** END **
Author's Note: This paper was originally presented at the
1994 ACSM/ASPRS Conference in Reno, Nevada and the 1995 ACSM/ASPRS Conference in Charlotte, North Carolina. It has been revised and updated, and edited
from its original form. It was written more for a presentation and discussion
piece, than a definitive paper on the topic. The original paper can be
obtained from the American Congress on
Surveying and Mapping by ordering the 1995 Conference Proceedings.
It is the author's hope that this document
will provide easy access to concise basic information for the novice on the
preparation and interpretation of descriptions of real property. It is
also intended to be of value to the experienced scribner,
who should continually evaluate and strive to improve the techniques used in
describing real property as well as the evaluation and interpretation of
existing descriptions.
If you have any questions or comments,
contact: john@rinaldinet.com
Changes last made on: September 10, 2007