8.1 The Hierarchy of Conflicting Calls & the Intent of the Parties

Following the footsteps

The purpose of a boundary retracement is to put the line where the original survey or conveyance put it, not where modern measurements say it should have gone. In Diehl v. Zanger, 39 Mich. 601 (1878), Justice Cooley described the surveyor's duty as to find where the original lines actually ran. Boundary texts, including Brown's Boundary Control and Legal Principles on the Board's reading list, make that principle the starting point. When deed elements conflict, the question is which element best shows the intent of the parties.

The customary order of dignity

On distance versus direction, many authorities rank distance above bearing for old compass surveys, because compass bearings suffered local attraction and declination error. Some modern authorities treat them as roughly equal, and a court will prefer whichever the evidence shows was more reliably established. Don't treat the relative rank of course and distance as absolute.

Why the order bends: intent controls

The hierarchy is a rule of construction used to find intent from the whole instrument, read within its four corners. When the instrument as a whole shows a clear contrary intent, a lower-ranking call can prevail. Recognized situations include:

• An impossible or plainly mistaken monument call. A small in-town lot with precise dimensions that also calls "to the Mississippi River," many miles away, is best read as containing a clerical error. The false call yields to consistent courses and distances. The maxim falsa demonstratio non nocet holds that a false part of a description does not defeat the grant if the rest identifies the land.
• A monument never set. If the evidence shows the called-for monument was never placed, it cannot control, and the courses and distances govern.
• A monument that is not the original. A marker set later by a stranger to the conveyance, with no connection to the original survey, is not the monument the deed called for.
• Area as the essence of the grant. A conveyance of "the South 20.00 acres of the SW 1/4" makes area the locating call. The line is drawn parallel to the south line to include 20.00 acres.

Monuments in practice

A monument controls when it is the monument called for: set before or at the time of the conveyance, or on the survey the deed was based on, and undisturbed. To rely on it, the surveyor must identify it: its type and size match the call; its position fits the other evidence, such as fences of competent origin and adjoining corners; and nothing shows it was moved. Record the reasoning on the plat (Rule 7.3, items 4 and 9).

Adjoiner calls

A call to an adjoiner's line is treated as a monument of record. If the deed says "East 300 feet to the west line of the Doe tract," and Doe's senior line is actually 312 feet away, the line runs to Doe's line. If Doe's line is 290 feet away, the line stops there. The parties meant to meet the neighbor, not to leave a strip or overlap. When the adjoiner's line is itself uncertain, it must be retraced under the senior-rights rules (Section 8.2).

Area

"Containing 80 acres, more or less" signals a sale in gross. The described boundaries fix the land, whether it measures 76 or 84 acres. Area rises in importance only when the deed makes quantity the locating element, as in "the north 10 acres of…", or when other calls are so defective that area is the best remaining evidence.

Worked conflict: monument versus distance

A 1968 deed calls: "thence N 89°30′ E 400.00 feet to an iron pin in an old fence row." The surveyor finds an old 1-inch crimped-top pipe, undisturbed, at the base of an old hedge along remnant fence wire. It is 418.50 feet from the beginning corner at N 89°12′ E, and nothing else fits the call.

1. The call is to an artificial monument, "an iron pin in an old fence row."
2. The pipe matches the call in kind and setting, and its position agrees with the old fence line.
3. There is no evidence it was moved or set by someone else.
4. Result: the corner is at the found pipe. The distance and bearing yield to the monument. The plat shows the record call and the measured values (Rule 7.3, item 11), and describes the monument (item 4).

Setting a new pin at exactly 400.00 feet would disregard the best evidence of the original corner and create a conflict where none existed.

Fences

A fence is not a monument unless the deed calls for it or it is proven to mark an original line: built on the original survey, or recognized long enough to establish the line by acquiescence or adverse possession (Chapter 9). Otherwise, show it as occupation (Rule 7.3, item 10) and retrace the record line.