INFORMATIVE AND CONTROLLINGTERMS USED IN DEED DESCRIPTIONS

One of the most difficult problems encountered by land surveyors and title professionals is the reconciliation of conflicting terms in legal descriptions. Often the description of a boundary line may contain several informative terms, only one which will become controlling if there is a conflict between the terms. An informative term in deed description is one that adds information about the terms of the deed; but, if the informative term is in conflict with the term that it modifies, it yields. For example, the call "North 12 degrees 10 minutes East a distance of 200 feet to a concrete monument" contains two informative terms, "North 12 degrees 10 minutes East and 200 feet' and one controlling term "a concrete monument.' In a deed in which the controlling term cannot be distinguished or located, the informative term may become the controlling term as in the example 'North 12 degrees 1 0 minutes East a distance of 200 feet" could be exact if the monument were lost.

Controlling terms often follow the word "to." In a legal description, 'to" flashes a warning to the surveyor, attorney and title professional to look for a term which will be superior to the informative call for distance, direction or area.

"To the bank of the East River'""to an iron pin""to the southeast corner of Lot 5""to the west right-of-way line of 6th Avenue""to the northeast corner of the land conveyed to Jones in Book 1276 at Page 16 of Official Records"

All are examples of the usage of the "to" in which the distance, direction or area given yields by presumption to the object or monument called for.

The professional surveyor analyzes the legal description and determines which calls are controlling and which are informative. He then reconciles the legal description with measurements between controlling monuments on the ground. Often this results with the surveyor showing two (or more) dimensions across the same line on the plat of

survey. One dimension is usually labeled as measured and the other labeled as record or described. Showing both dimensions on the plat of survey is requirement 5(b) in the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys. The surveyor may be asked to prepare a new legal description of the surveyed property based upon the current measurements and analysis.

LEGAL PRINCIPLES FOR BOUNDARY ANALYSIS

Fortunately, the courts have established principles surveyors are to follow when location of boundary lines is uncertain because of conflicting terms in deed descriptions.

Listed below are some of these principles and rules taken from "Boundary Control and Legal Principles" 3rd Edition, by Curtis M. Brown, Walter G. Robbillard and Donald A.Wilson:

1 . An occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to the occupied land.

2. As between private parties in a land dispute, a senior right is superior to a junior right.

3. The intentions of the parties to a conveyance are the paramount considerations of the court in interpreting the meaning of a deed, and that intent is gathered exclusively from the written words of the deed.

4. For a survey to be a consideration of a conveyance it must be called for.

5. For a monument to be controlling it must be called for or it must have been required by law. A call for a survey also calls for monuments set on that survey.

6. Order of importance of conflicting elements that determine land location

A. Right of possession (unwritten conveyance)

B. Senior right (in the event of an overlap)

C. Written intentions of Parties1 . Call for a survey or an actual

survey upon which the conveyance is based

2. Call for monumentsa. Naturalb. Artificial

3 Direction and distance4. Direction or distance5 . Area (quantity)6. Coordinates

MONUMENTS

The term monument appears several times in the previous discussion. In "Boundary

Control and Legal Principles" 3rd Edition the authors define monuments as follows:

Monuments as pertaining to land surveying are tangible landmarks indicating land boundaries.

(1) PHYSICAL MONUMENTS. A physical monument is an existing feature such as a stone, stake, tree, hill ocean, river, or lake, but not the unmarked line of an adjoiner.

(2) NATURAL MONUMENTS. A natural monument is a naturally occurring object such as a lake, river, tree, boulder, or hill. Although the courts sometimes refer to a record monument (land of adjoiner) as a type of natural monument, such a broad meaning is excluded in these pages.

(3) ARTIFICIAL MONUMENT. An artificial monument is a man-made objectsuch as a stake, fence, or set stone,

(4) RECORD MONUMENT. An adjoiner property called for in a deed such as a street or particular parcel of land. Frequently the boundary line of the adjoiner is referred to as the record monument; actually the entire property, rather than the line, is the monument. Physical monuments may or may not mark a record monument. In court reports, record monuments are often referred to as natural monuments, but such a meaning is excluded in

these pages. A record monument is often referred to as adjoiner. Usually a record monument has senior standing, though not always.

(5) LEGAL MONUMENT. Any monument controlling in a legal description. It is often limited in meaning so as to be synonymous with record monument.

12 Am. Jur. 2d. Boundaries §4 states as follows with respect to monuments:

A "monument," when used in describing land, has been defined as any physical object on the ground which helps to establish the location of the line called for, and the term "monument," when used with reference to boundaries, indicates a permanent object which may be either a natural or an artificial one. Natural objects, artificial objects, and adjacent boundaries are all in a general sense termed monuments by the courts although they may be of unequal dignity among themselves. Natural monuments include such natural objects as mountains, streams, rivers, creeks, springs, trees, etc. Artificial objects and monuments consist of marked lines, stakes, roads, fences, buildings, and similar matters marked or placed on the ground by the hand of man.

A highway or a street may be a monument, and in the absence of other controlling calls or landmarks which can be ascertained, the location and occupancy of a street as indicated by old buildings and fences, and by its use for many years, may be taken as practical evidence of the true location of the street, and the lines of the street may then determine the location of the boundaries of abutting lands; but streets which are only undefined portions of land dedicated to public use, and themselves required to be located, cannot be given controlling effect in fixing boundaries of other lands.

The line of a tract adjacent to the premises described in a conveyance may be made a monument by which the boundary of the conveyed premises is to be determined. The certain and locative calls of

adjoining landowners are treated as a sort of natural monument, although not so decisive as other natural monuments such as streams, etc.

Further explanation of the control of calls for adjoiners is provided by 1 1 C.J.S. Boundaries § 53 which states:

In the absence of calls for other monuments, calls for established and well known adjoiners will generally control other conflicting calls, unless manifestly erroneous ...

Adjoiners, to control over courses and distances must be called for as boundaries, must have existed at the time of the conveyance, and must be clearly established and identified, and accurately located. Adjoiners will ordinarily yield to course and distances where not definitely ascertainable, where resulting from a mistake, or where such appears to be the parties intent ...

The boundaries of a tract may be designated by reference to adjacent or adjoining lands and it is immaterial that such lands belong to the vendor, that their limits are unmarked, that the survey is invalid, or that title thereto is defective. The true line of the adjoiner, as of the time of the deed, must be understood to have been intended.

The survey represents the land surveyor's opinion of where the boundary lines of a parcel should be. This opinion is based on surveyor's analysis of the evidence discovered. The title officer and attorney reviewing the survey should ask the surveyor to explain any discrepancy between the legal description of record and that shown on the survey and should satisfy themselves that the surveyor has based his survey on sound legal principles.