Posted: Thu Oct 10, 2019 9:45 am
All the deeds along the north side of a road call along the road and to monuments placed on the road. My subject deed calls bearing and distances courses along the southerly boundary to a point. Everything fits original monuments and there are no issues yet.. Then the deed calls "Due North to a road centerline (different road), westerly along the centerline to a point due north of POB, then due south to POB" There are no informative (bearings or distance) calls other than due north. Subject deed is senior to all the deeds in the area. All the other deeds also call due north for their respective sidelines. My survey is on astronomic BOB.
Conundrum: "North" relative to the other courses in the deed (which fit found monumentation called for in the deed) is N1°43'E.
Wattles says if "Due north" is encountered in a description, it is meant to emphasize it as a bearing or "exactly north." Brown's BCLP states "In California when the word due was placed in front of the word north, the basis of bearings was changed to astronomic north, as indicated in the case of Richfield Oil Corp."
Question: Does the deed intend for the sideline to be absolute N00°00'E or to be relative to the other courses based on the stated bearings in the deed which results in N1°43'E?
Note: there is only one small, modern fence in the NW corner that fits closely to the N1°43'E solution, but there is no evidence (from my client or otherwise) that the fence was built in concert with a survey.
I have fuel to argue both sides. I have asked around locally and have surveyor's on both sides.
This is my first post on the CLSA forum. I have been reading it for years, so I know that I will elicit more questions than answers. I'm really just looking for other perspectives more that the silver bullet. I am fairly settled on an answer myself.
Re: "Due" North
Posted: Thu Oct 10, 2019 4:22 pm
The Atlantic Richfield case is still the case on point IF you have no other evidence or circumstances to show that a different basis of bearing was intended.
Are there distances associated with the Due North and Due South calls and the course along the road to the north? If so, does the course along the road fit better if you use astronomic N or N 00 E reckoned from the basis of bearing the rest of your description is on?
What do you know about the fence location other than the fence being a "modern" fence? Was the current fence a replacement of an older one at the same location? Who determined the location for the fence to be built and how was that location determined?
Are there any other indications of occupation in the area, perhaps even on lines of adjacent properties which are not boundaries in common with your subject property but sharing similar calls on the common boundaries? That is, the common boundary calls "due" North or South, but signs of occupation on other lines of those parcels.
Re: "Due" North
Posted: Thu Oct 10, 2019 6:52 pm
Are there any other improvements?
Did you pull all adjoiners?
Did you assemble all deeds needed to recreate parent?
When was the deed created?
Do you know if a surveyor prepared the deed?
Is there title coverage/insurance?
Extrinsic evidence will provide some clues.
Re: "Due" North
Posted: Fri Oct 11, 2019 8:14 am
Per Curt Brown per THE CURT BROWN CHRONICLES:
THE ENGLISH LANGUAGE contains many words that have dual or multiple meanings. Does the word red mean a color or a communist? Deeds (here meaning an instrument to convey real property, not a good deed by fellow man) are in writing. If words can mean two things, it can be expected that differences of opinion, as to a deed’s intent, will develop. Thus, what does the word North mean? Is it magnetic North, is it astronomical North, or is it North relative to a line whose bearing is defined by other words in the deed? When the word “due” is used in conjunction with “North,” does due North mean astronomical North, or does it mean North relative to another line?
In the final analysis, the courts resolve these questions for a particular deed, and by police power, they enforce their interpretation. If surveyors are to accurately transform deed terms into monuments upon the ground, it behooves them to study the meaning of deed terms as defined by the courts and to attempt to understand the court’s thinking. The words due and North have been the subject of litigation and will be used to illustrate how courts arrive at their decisions.
North, as used by surveyors, has at least three meanings and possibly more. It may mean “in the direction of the earth’s North Pole as determined by a star observation.” It may mean “in the direction of the magnetic North Pole as determined by a magnetic compass at the spot of the deed.” It may mean, “In a direction that is North relative to a given bearing of a line whose direction is fixed by monuments existing on the face of the earth.”
Due, as defined by Webster’s Dictionary (excluding meanings not applying to surveying), is “directly; exactly; as a due-East course.” As used by surveyors in the early days, especially in surveying government sectionalized land, the words true and due indicated that a magnetic-North observation, as obtained from a magnetic compass, was corrected to astronomic North. The purpose of the term, the differentiation between magnetic and astronomical North, is no longer needed because of the abandonment of the magnetic compass as an instrument for determining property line directions. But title authors and surveyors have continued to use the terms due and true rather loosely, and often erroneously.
The following deed (See Figure 1) was the subject of a long-continued legal battle between Richfield Oil Corporation and Crawford, et al (249 P 2nd 600); “Beginning at a point on the SW line of said Rancho (Cuyama) at a 2-inch galvanized iron pipe 6-inches high in a mound of stones, with brass cap marked “Cuyama Rancho C-No 31’, set by Gerald C. Fitzgerald, Registered Civil Engineer, and shown on map recorded in Book 26, Pages 138 and 139 of Records of Surveys, Records of Santa Barbara Co.; thence N 65º 10' 24" West along said SW line as established by said Gerald C. Fitzgerald and shown on said Records of Survey map, a distance of 2,877.60 feet; thence due North 13,295.04 to the true point of beginning; thence, due West 1320 feet; thence, due North 2640 feet; thence, due East 1320 feet; thence, due South 2640 feet to the true point of beginning, and containing eighty acres, more or less.” Who would think that such an innocent looking document would be the subject of expensive litigation? The trouble arose from the interpretation of the meaning of due North.
One surveyor surveyed the legal description of the property by running the line 2877.60 feet along the boundary of the ranch to point A (See Figure 1), and then turning an angle of 65º 10’ 24” at point A. The other surveyor used the same method to locate point A, but from that point, he ran a line due North based upon a Polaris observation. The difference between the two methods resulted in an East-West displacement of about eleven feet at point B, and this difference of eleven feet placed the location of an oil well in jeopardy.
The practice of assuming that the bearing of a given monumented line of a deed is correct, and then surveying the remainder of the deed relative to the given line, has long been an accepted custom of surveyors. But in this case the court decreed that the word due changed the basis of bearings from “North relative to a given line” to “astronomical North” as determined by a star observation.
Does this mean that every time the word due is used prior to the word North the meaning is “astronomical North as determined by a stellar observation?” Certainly not! Only in very similar cases would it be applicable.
To be valid, a deed must be in writing. In a court trial, evidence cannot be taken to exclude words from the written deed, nor can evidence be taken to include words that are not in the writings. It must be presumed that the document as written includes all of the words intended and does not omit words not written. But this does not exclude evidence taken for the purpose of explaining words that already exist within a deed. Thus, if the term due North is not clear in meaning, and exists in a deed, the court may take testimony from expert witnesses to explain the commonly understood meaning of the term. Such evidence is called extrinsic evidence and may be defined as evidence other than that contained in the writings. Extrinsic evidence is not accepted for the purpose of varying or contradicting the terms of the deed but to assist the court in understanding the words that already are a part of the deed.
In the above case, extrinsic evidence was admitted and many surveyors and engineers testified, some taking one side and others the opposite. The weight of evidence in this particular case precipitated the decision that due North meant astronomical North. After reviewing the case carefully, the following conclusion can be stated. Except where other terms of a deed or admissible extrinsic evidence indicate another intent, a due North call should be interpreted to mean an astronomical bearing. An understanding of the exception is more important than understanding the definition of due North.
Two mining men disagreed upon the meaning of a deed reading in part: “running thence North 23º 15’ W, 640 feet; thence N 45º W to Devils’ Canyon (11 Cal 194).” Quoting from the case, “In an action concerning a disputed boundary between two claims, depending on an agreement between parties in which the word ‘North,’ was used, and parole [verbal] evidence was admitted to prove that it was the custom of the locality to run boundary lines by the magnetic meridian, and that was the understanding of the parties; Held, that such evidence was admissible not to contradict or vary the term, but to ascertain the sense in which it was used.” In a modern deed, where the compass is no longer used, the word North could not be magnetic North, but at the time of the above deed, it was proper.
The courts in each of the above cases adopted that meaning for North and due North which they believed to be the intent of the parties of the deed. No fixed rule exists that says North is always astronomical North. In older deeds in some localities, the word North means magnetic North for the simple reason that magnetic North was the intent at the time of the deed. In other localities, where surveys were made after the date of the abandonment of the magnetic compass, the word North is either astronomical North or “North relative to a defined line.”
Ambiguous deed terms are interpreted in the light of the intent of the original parties by investigating: (1) The surrounding conditions existing at the time the deed was written, (2) The extrinsic evidence that explains the common meaning of the terms, and (3) The meaning of the ambiguous terms relative to all the other written words in the deed.
In the construction of the instrument, the intentions of the parties are to be pursued, if possible. “The only rule of much value - one which is frequently shadowed forth, but seldom, if ever, expressly stated in books - is to place ourselves as nearly as possible in the seats which were occupied by the parties at the time the instrument was executed; then, take it by its four corners, read it.” (Walsh v. Hill, 38C 481.)
MORAL: If a deed is being written and North relative to a star observation is desired, the deed author should state astronomical North. If North relative to a given line is intended, the usage of due North or true North should be avoided. In the future, the words due and true should be restricted to the interpretation of existing records and not used in the creation of new records.
Re: "Due" North
Posted: Fri Oct 11, 2019 12:05 pm
Jack pot! This is good stuff!
Evan - There are no other distance calls of any kind. Teh southerly line appears to have been surveyed because the deeds all fit perfect and pipes were set at angle points. Then the deed literally states, "thence due north to the centerline of XXX Road, thence westerly along said road to a point due north of POB, thence due south to POB." As you can see, there is no way to verify how XXX road fits the rest of the deed. I have no other information as to the fence corner or how it was built. I'm still trying to dig up more on fence with the owner. I checked the other neighbors with Due north calls and there is nothing out there - no fences, trails, driveways etc... just land out in the boonies. In fact the fence corner is only 50' long and is the only fence out there. I'm not even sure of its purpose because it does not close - just a line with an angle point near the N1°43'E solution.
Mike - I pulled the adjoiners, my subject is senior, I have created the parent parcel - no gaps or overlaps just need to settle on what all the north calls mean in the interior of the parent parcel, it appears that the baseline (southerly line) of all the deeds was surveyed but there is no issue with that line, there is title coverage. Thanks for the Excerpt. That is the nugget I was looking for! I will keep hunting for extrinsic evidence that will support the meaning of north in this area and hopefully determine the intent.
I appreciate the help, and I hope this is enlightening for the other readers. Definitely another interesting subject in our interesting profession.
Re: "Due" North
Posted: Fri Oct 11, 2019 3:56 pm
Re: "Due" North
Posted: Thu Oct 17, 2019 7:05 pm
My recollection in learning about the Atlantic Richfield case from Jerry Broadus seminars (seems he included this case in most of his seminars- I saw him present it about 3 times), is that the court made a questionable decision. One of the questions was whether there could be multiple basis of bearings within the same description, i.e. different lines controlled by a different basis. I remember initially having a hard time agreeing with this concept, saying "no way". I later realized, of course you can have multiple bases, depending on the wording of the controlling calls. Another issue was a County Surveyor who gave expert testimony, of which I disagreed- I don't recall if the judge sided with his testimony or not. The last issue was they disallowed extrinsic evidence, i.e. field notes which showed the intent of the description, because "the description was unambiguous on its face, and therefor extrinsic evidence wasn't applicable" (paraphrased). I thought this was highly unfortunate. I believe the notes showed an interior angle or some such thing that solved the whole ambiguity. I mean, we're in court debating the meaning of a description and fieldnotes that would solve what was intended were not allowed. This is all based on old memory, not reviewing the case again of late.
Re: "Due" North
Posted: Fri Oct 18, 2019 9:25 am
I think that the Richfield case (Richfield Oil Corp. v. Crawford, 39 Cal 2d 739 (1952), link below), is an instance where bad expert advice to the court leads to bad law.
The trial court hung the "due north" part of its judgment on the expert testimony of a civil engineering professor that "good engineering practice" requires that "due north" be surveyed as "true astronomic north".
For an engineering application, the engineering professor is most likely correct. But a boundary matter is not an engineering application.
Based on my experience, only a small percentage of college professors for surveying are qualified to provide opinions on boundary matters. I'd wager that even in 1952, only a minuscule percentage of engineering professors would be so qualified. Based on what details there are included in the Cal Supreme Court ruling, I'm pretty sure that Dr. Thomas, in spite of his impressive sounding titles, was one who was not remotely qualified to opine on boundary matters.
The Court of Appeal and Supreme Court were reviewing the case on the "substantial evidence" standard. Appeals Courts (of which the Supreme Court is the highest) are very hesitant to overrule trial courts when the trial judgment rests on witness testimony for the reason that the judge and/or jury of the trial court were in a position to judge the credibility of the witnesses. But it does seem like there was enough evidence of the circumstances surrounding the conveyance to overcome the acceptance of an arbitrary rule made up by an unqualified expert.
However, the California Supreme Court issued a very clear and strongly worded ruling 16 years later (PG&E v. W.G. Thomas Drayage Co, 69 Cal 2d. 33(1968), link below) in which they made it abundantly clear that alternate meanings of even seemingly clear language may be the correct interpretation of what the parties meant by what they said and that any credible extrinsic evidence must be considered before the reader can properly assess the true meaning within the context of the agreement.
Makes me wonder if there would have been a different outcome in the Richfield case if the court's makeup had been the same in 1952 as it was in 1968. The Richfield case doesn't read as if the Supreme Court was affirming so much on well-settled, clear legal principles of the interpretations of writings so much as it was on the "substantial evidence" standard of review and then providing reference to some supporting reference.Richfield Oil Corp. v. Crawford, 39 Cal 2d 739 (1952)
: https://advance.lexis.com/documentpage/?pdmfid=1000516&crid=48cc5978-e169-4f19-bf08-04aaa1b0d4be&config=00JAA0NDgwMGE5Mi01ODYxLTRkZDEtODQ0OS1mYmEyN2M3ZmZmZWQKAFBvZENhdGFsb2fyUIbYd2jFgdWUbISiHcjK&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A3RRK-PW30-003C-H4G6-00008-00&pddocid=urn%3AcontentItem%3A3RRK-PW30-003C-H4G6-00008-00&pdcontentcomponentid=506036&pdteaserkey=sr0&pditab=allpods&ecomp=h567kkk&earg=sr0&prid=78b854e1-405b-4d86-881d-00e158591726 PG&E v. W.G. Thomas Drayage Co, 69 Cal 2d. 33
(I apologize for the long links. I've forgotten how to place shortened text in the coding for a link.)