Rules of Construction—Essential (but Tricky) Tools for Surveyors, Attorneys & Land Use Professionals
Updated: Apr 20, 2020
Surveyors deal with the rules of construction each time they read a deed and attempt to ‘follow the footsteps’ of the original surveyor. While it is tempting to refer to these as basic principles, the permutations found among the many state courts are anything but “simple.” Many professionals have lost court disputes due to their inability to properly apply these principles.
The rules of construction—also referred to as the “priority of calls”—routinely are applied by the courts when attempting to determine the limits of title associated with a written description. The judicial basis for this collection of principles is well established.
The priorities have been developed over the centuries as a tool to aid in the determination of the intent of the parties when various elements of a description are ambiguous or in conflict with other elements. Early court disputes focused primarily on the relationship between natural monuments and measurements. Over 300 years ago, an early colonial Maryland decision Keech’s Lessee v. Dansby: 1 H. & McH. 20 (1704) corrects an erroneous decision in the lower court and honors the call for a creek over a ‘westerly’ description of the line.
One critical point when considering the importance of monuments is the caveat that the monument called for be properly identified in the description, as noted in Brown v. House: 116 N.C. 859 (1895): “The general rule is that the calling in a grant or deed control in locating the land conveyed thereby, subject to the exception that where a natural object or monument is called for, and it is susceptible of location, such natural object or monument, when located, will control the course and distance; but such calls must be both reasonable and certain.”
As time passed and land was divided into smaller tracts, descriptions were characterized by increasing reference to artificial monuments needed to perpetuate boundaries—and by a general (but hardly universal) increase in the complexity of legal descriptions. These trends raise the possibility of three or more conflicting elements—even within the description of a single line. Deed calls including several elements necessitated refinements of the earlier rules of construction.
While variations between states will be found at times, Broadsword v. Kauer: 161 Ohio St. 524 (1954) provides a representative example, requiring courts (and land use professionals) to apply a more nuanced standard: “natural and permanent monuments are the most satisfactory evidence and control all other means of description…First, natural boundaries; second, artificial marks; third, adjacent boundaries; fourth, course and distance, course controlling distance, or distance course, according to circumstances. Area is the weakest of all means of description.”
Course vs. Distance
Some courts have shown a limited preference of course (bearing) over distance, but both elements are measurements and thus generally considered more liable to error than natural monuments, artificial monuments, or established adjoining boundary lines.
In arguing the primacy of bearings over distances, courts have applied different rationales. One train of thought supporting this premise notes that bearings (measured and recorded by the more experienced surveyor or party chief) should be considered more reliable than distances measured by chain-carriers—who may well have been neighbors or relatives of the owner of the tract surveyed. Another line of reasoning recognizes that bearings measured in steep and rocky terrain may be more reliable than chained measurements across gullies and steep slopes. On the other hand, distances measured on flatter terrain may be proved more accurate than the bearings.
The modern consensus of opinion in most jurisdictions holds that any presumption between course and distance is sufficiently tenuous to allow legitimate evidence based on the specific circumstances to control in that particular retracement. The Virginia decision Green v. Pennington: 105 Va. 801 (1906) states: “In Smith v. Chapman, 51 Va. 445, 10 Gratt. 445, it was said by Judge Lee, in delivering the opinion of the court, that to say that distance shall yield to course, or vice versa, where there is a conflict between the distance of one line and the true course of another, would be entirely arbitrary; and the true rule seems to be that the one or the other shall be preferred according to the manifest intent of the parties and the circumstances of the case.”
Additional reinforcement of the blurred lines between bearing and distance is found in Preston’s Heirs v. Bowmar: 19 U.S. 580 (1821), where the U.S. Supreme court concluded that circumstances determine control between bearing and distance.
Call for Adjoiners
States vary somewhat in their assessment of the relative strength of a call to an adjoining boundary line when compared to the other elements of the rules of construction. Some jurisdictions consider adjoining boundaries to be a type of monument, while others (such as Ohio) consider calls for adjoiners as a separate category that falls just below artificial monuments.
Generally, the level of control assigned to a call for an adjoining boundary line is subject to two caveats: (a) as with a natural monument, the adjoining line must be properly identified, and (b) the adjoiner line must be susceptible to location with reasonable certainty.
It is clear that all calls for adjoiners cannot be considered to have equal strength. Where the line was never properly marked and no evidence exists on the ground as to the location of the line, the level of control exerted by call for adjoiner may be less. By contrast, a widely recognized boundary line with clearly marked endpoints will exert more control against other deed elements.
Original Footsteps (Lines Marked)
The Pennsylvania court presents an unusual viewpoint when it considers a possible discrepancy between marked lines and calls for the boundary of an adjoining property owner. Carroll v. Miner: 1 Pa. Super: 439 (1896) observes: “The courses and distances in a deed always give way to the boundaries found on the ground or supplied by proof of their former existence when the marks or monuments are gone. Even calls for adjoining tracts sometimes give way to monuments and marks upon the ground. A marked line is a very common monument, and when well established will prevail over a call for an adjoiner.” The use of the qualifiers “sometimes” and “when well established” illustrates the difficulties faced by land use professionals when confronted by a similar situation.
In Matheny v. Allen: 63 W. Va. 443 (1908), the West Virginia court expresses similar sentiments when dealing with calls to adjoining tracts: “The location of the lines of a survey is to be determined by the lines as actually run upon the ground, where this can be ascertained; nor will this rule be varied by the fact that an adherence to it would give to the locator less land than he was entitled to by his certificate. Nor is the rule varied by the fact that a call is made to run to the line of an older survey, if that line was never reached in the survey actually made, but the surveyor stopped at another line which was mistaken for it.”
The element of area/quantity remains at the bottom of the rules of construction for a very legitimate reason—despite the disappointment it will cause for many landowners. Any significant error in any deed dimension will virtually guarantee an erroneous result for the calculated area—therefore, the calculation of area depends on the near-absolute accuracy of all measurements recorded for the perimeter of a given tract. The additional calculations themselves required to determine area introduce yet another layer of potential error.
Other justifications for disregarding area are found in early practices of granting riparian/littoral tracts based on the ‘dry-land’ or arable area—while the extent of the actual conveyances often extended to the center of adjoining watercourses by operation of law.
Ultimate Purpose of the Rules of Construction
The rules of construction are always applied to ascertain the intent of the parties—and are ultimately subordinate to demonstrated intent. Many courts emphasize that no rule—no matter how well-established—may be applied where it clearly defeats the intent of the parties. Under the “four-corners rule,” land use professionals must consider all language in the relevant document. This includes headers, the habendum clause, and the language often referred to as “boiler plate” portions of the description.
The early Maine decision Pike v. Munroe: 36 Me. 309 (1853) highlights the paramount importance of determining the intent of the original parties: “In modern times, they have given way to the more sensible rule of construction, which is in all cases to give effect to the intention of the parties if practicable, when no principle of law is thereby violated. This intention is to be ascertained by taking into consideration all the provisions of the deed, as well as the situation of the parties to it.” While 1853 might not be considered ‘modern times’ by current practitioners, this decision underscores the durability of the rules applied by the courts for interpretation of relevant documents.
Limits of the Rules of Construction
Broadsword v. Kauer (referenced previously) makes clear that the underlying principle behind priority of calls is the premise that more certain and unambiguous elements will control those that are less certain and more prone to error or miscalculation. “The ground of the rule is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent. The reason assigned for this rule is that monuments are considered more reliable evidence than courses and distances. A description by course and distance is regarded as the most uncertain kind of description, because mistakes are liable to occur in the making of the survey, in entering the minutes of it, and in copying the same from the fieldbook.” The rules of construction exist solely to guide the court to the most probable intent of the original parties. The rules of construction are only guidelines, and should not be considered invariable.
The rules of construction may not be applied where the terms of the description are clear and unambiguous. Rather, the priority of calls is the first line of defense against conflicting elements, ambiguous phrasing, or other irregularities that may appear in a deed or other document, as noted in Winter v. White: 70 Md. 305; 17 A. 84 (1889): “The object of the descriptive part of a deed is to define what the grantor meant to convey and the grantee to receive; and when the intention of the parties is apparent and plain on the face of the deed itself, there is no room for construction.” In Bailey v. Town of Saltville: 691 S.E.2d 491 (2010), the Virginia court states this concept even more succinctly: “it is not permissible to interpret that which has no need of interpretation.”
Rules of construction—along with other presumptions of law that may be applied to determine intent—do not apply exclusively to deeds. As seen in Farmers & Merchants Bank v. Gelwicks: 158 W. Va. 1012; 216 S.E.2d 769 (1975), other types of documents including wills, written contracts, and documents related to dedication or acceptance of easements will apply these principles where the determination of intent or location of a boundary are pertinent questions: “The paramount principle in construing or giving effect to a will is that the intention of the testator prevails, unless it is contrary to some positive rule of law or principle of public policy. The intention of a testator must be judged exclusively by the words of the instrument. Legal presumptions and rules of construction may be resorted to only when the language of the will affords no satisfactory clue to the real intention of the testator.”
While common sense is not always associated with court rulings in the mind of the public, courts are encouraged to apply common sense when applying the rules of construction. Judges may also apply a humorous turn of phrase to make a point, as may be seen in the Kentucky opinion Linebaugh v. Carroll, 2009-CA-000888-MR (KYCA) (2009): “In determining the intention of the parties, courts look at the whole deed, along with the circumstances surrounding its execution…In attempting to ascertain intent, courts are admonished to employ common sense – all too often a rare guest in the house of the law…Fairness, justice and common understanding must enter into the interpretation of any instrument, and an apparent mistake in the use of words will not be permitted to impair what was the real intention of the parties or to defeat their obvious purpose.”
This decision also highlights another important principle of deed interpretation. If an obvious mistake has been made in the drafting of a legal description and the source of the mistake can be clearly identified and proved, the erroneous portion of the description should not be allowed to distort the correct portions of the description.
Ruffner’s Heirs v. Hill: 31 W. Va. 428 (1888) is yet another instructive West Virginia opinion that advocates for fixing errors at the source: “That where there is a conflict between the distance of one line and the course of another, either the course or the distance shall control, according to the manifest intent of the parties and the circumstances of the case; (2) where it can be ascertained from the lines and courses extant that the mistake is produced by an error in one of the courses, then the correction ought to be made with reference to that mistake, so as to make the survey conform as near as may be, without violating established principles of law, to the manifest intent of the parties, and, on the other hand, where it is shown by the extant and identified lines and corners of the survey that the mistake is produced by an error in the distance of one of the extant lines, then the correction ought to be made with reference to that mistake, so as to give effect as far as possible to the manifest intent of the parties; (3) and, in applying these rules, the shape of the survey as originally platted, and the quantity of land called for, may be considered, though the weight to be given to these is generally very inconsiderable.”