LAND DESCRIPTION
PRINCIPLES
By:
William
C. Rohde, RLS 841
Preface
The ultimate objective of any land description for
legal purposes is the definition and/or establishment of land ownership
boundaries; therefore, it is the intent
of this treatise to present land survey description composition and interpretive principles
which are essential to assure that all land descriptions are fully construed
without error, ambiguity or redundancy.
General Definition
A land description defines points and lines, which
together configure a spatial polygon of specified size and shape; however, the
orientation and position of the polygon must also be further referenced, by existing
natural and/or artificial evidence, to establish location upon the land with
absolute certainty and congruity with adjoining spatial polygons. Conclusively,
all descriptions must be retraceable by a land survey of public record.
Description Elements
Caption
Body
Augmenting
Clause
Qualifying
Clause
Controlling
Clause
The Caption describes the general location of the land
parcel by direct reference to the PLSS (Public Land Survey System), a recorded
map plat or other referrals, and the city, village or town, county and state.
The Body specifically describes and/or references the
boundary lines and corners of the related parcel of land as a geometric spatial
polygon.
Augmenting Clauses describe any additional title
rights or interests and appurtenances that are not included in the body of the
description, such as an easement for ingress and egress; and normally are
preceded by the term words Together with or And including.
Qualifying Clauses exclude, modify or encumber
described land and title rights or interests; such as the reservation of land
for roadway purposes or exception of lands, easements and other restrictions;
and normally are preceded by the term words Subject to, Reserving or
Excepting.
Controlling Clauses describe terms of expressed or
special intent; such as a record survey and/or deed conveyance referral, basis
for bearings and/or directions, and any other conditions controlling the
described parcel. Example: It
being expressly intended to have surveyed and mapped that certain parcel of
land described in and conveyed by deed recorded in Volume 231 of Deeds Page 517
as Document No. 213768 in
All elements must be construed as a whole, including
all parts, in order to effect true meaning and intent; for some descriptions,
the caption and body may be combined as a singular element. A map or plat of
survey exhibit may also be appended by direct referral, as a supplement to the
written description; usually on a legal size instrument format.
The term words End of Description should always
be added as the bottom or ending line of any land description; this asserts a
formal conclusion and deters omission of any part of the description.
Informative & Controlling Terms
Descriptions contain informative and controlling terms
known as calls. A call which reads "thence North 200 feet to a concrete
monument" contains an informative call "thence North 200 feet",
and a controlling call "to a concrete monument". By legal precedence,
a controlling call is primary and an informative call is secondary; therefore
the monument prevails.
A call may be an informative and controlling term,
such as "thence North 200 feet"; also known as a “free” call.
Controlling calls normally follow informative calls and are preceded by the
term words at, to, of, along, parallel with, being, etcetera. Normally,
informative calls are generally descriptive and controlling calls are
particularly descriptive by specific locative intention in application.
Description Types
Sequential
Partitional
Referential
Combinational
Sequential: Define land parcels by consecutive boundaries or courses;
commonly known as metes
and bounds.
Partitional: Define land parcels by fractional partitioning; usually by
area or lineal division and/or
exception.
Referential: Define land parcels by reference to a record survey, map
plat, conveyance, adjoiner(s) or other related referrals.
Combinational: Define land parcels by admixing
sequential, partitional and referential descriptive terms.
Description Type Examples
Sequential: Commencing at the NW corner of said Section 13, thence East
a distance of 120 feet to a
concrete post; thence South 237 feet; thence westerly parallel with....
Partitional: The East 1/2 of said forty lying westerly of Highway
59....The East 1/2 of the South 1/2 of....The South 10 acres
of....The South 100 feet of....The NE1/4 of the SW1/4 of Section 23....and described
exceptions.
Referential: All of Lot 23 of Block 9 of Holiday Acres Subdivision, in
the Village of....Thence North on the West line of land described in Volume 2 of
Deeds Page 45....and the majority of all "strip"
descriptions defined by offset from a commonly referred centerline or sideline.
Combinational: Thence North on the west line of said
forty 310 feet to
along said lake
to the west line of the land previously conveyed to Joseph H. Long;
thence South 376
feet to a concrete monument....
Land parcels are created simultaneously by
instantaneous description as platted land, sequentially by successive
description as unplatted land, or both in a combination thereof. Normally,
simultaneous land parcels involve equal title rights, unless subsequently
divided, and sequential land parcels involve junior-senior title rights.
Legal Precedence of Description Calls
(Also
commonly known as Superiority of Calls or Rules of Construction)
In
Call
for a Survey
Call
for a
Call
for an Artificial Monument
Call
for Adjoiners
Call
for Distance
Call
for Direction
Call
for Area
Call
for Coordinates
The legal establishment of unwritten title
rights and/or interests, by adverse possession and/or prescriptive usage, as
well as senior rights, have legal precedence over the latter order or
the written intent of any land description of record; however it may be
described and/or conveyed.
General Principles
Assure that no conflict is evident between the general
caption and the more definitive body of the description.
Always describe what is intended and intend what has
been described.
Avoid the use of common term abbreviations, in any
description, as a deterrence to misinterpretation.
Brevity is best accorded by the minimization of
excessive verbiage and redundancy; but without uncertainty or ambiguity.
Every description must be locatable on the ground,
maintain identity of title and observe unwritten and/or senior rights.
A written land description is to the public record as
possession of land is to the ground; with absolute consistency.
No description should be dependent on punctuation for
interpretation but rather used in a general sense to effect clarity of
expression.
Qualifying, augmentative or controlling clauses may be
written in any order or sequence, but normally follow the caption and body
elements of the description.
Do not use term words "excepting and
reserving" together, as either has a differing legal definition involving
existing and/or new title rights and/or interests involved, by augmentative or
qualifying applications.
Fee title and easement parcels should be defined
separately, within any description, to effect their segregation and avoidance
of any conflict.
Write descriptions with precision, accuracy, diligence
and prudence so as to achieve clarity, continuity, simplicity and legal
propriety; do not merely surmise the meaning of written expressions.
Composition of land descriptions involving previously
described parcels of public record, should be carefully worded to maintain
original legal intent; this often requires the repetition of previous terms or
phrases.
Be wary of older or early record surveys, plats and
maps of reference as they often contain latent errors or inadequacies that may
conflict with related deed descriptions or calls; particularly early plats
which were merely protracted "on paper" without an accurate land
survey and/or adequate monumentation.
Calls for adjoiners or abutting properties require an
analysis of the associated descriptions to determine intent by such referral;
and also to reveal any discrepancies or latent ambiguities that may be
involved.
Avoid "double" calls when describing
boundary courses and/or corners as intent is best assured by a singular
locative referral.
Calls for monuments and/or adjoiners should express
the intent of both parties.
Define a line as being "parallel with", not
"parallel to" another line, course or boundary; normally of previous
record.
Be wary of and avoid double descriptions of
land parcels; particularly previously platted parcels by a recorded subdivision
plat or certified survey map defined by sequential courses and partitional
descriptions.
Directional Principles
If cardinal directions East, West, North or South are
intended as a defined course, never prefix with the word "due" unless
qualified by an assumed, magnetic, grid, true or other directional reference;
without a defined basis, "due" normally infers a true north referral.
Direction of travel should be consistent when
describing any courses by sequential calls or metes and bounds; use clockwise
or counterclockwise.
Whenever feasible, description bearings should be
rotated to fit the basis for bearings of any record boundary included by direct
referral; such as a record survey and/or plat of survey.
Defined directions should be consistent throughout the
description; do not intermix bearings, angles, azimuths and other directional
elements.
Normally the first course of a description, by
sequential metes and bounds calls, is defined or interpreted as the basis for
directions; it is better to add said course referenced as the basis for all
bearings herein.
Be wary of and avoid the use of directional words or terms
ending with ly, without reference to a defined boundary line and/or
corner; such as thence easterly parallel with or easterly along the. May also
be used along curves or other defined boundaries in a general sense, such as thence
northerly along the westerly shore of....or, thence easterly and
southerly along the arc of a curve....etcetera.
When describing a non-tangent curve, define the radial
bearing from the beginning of the curve to the related radius point; the
inclusion of curve radius is optional.
When any non-tangent or non-radial line intersects a
curve, define the radial bearing from point of intersection to the related
radius point; the inclusion of curve radius is optional.
To define the arc of a curve with absolute certainty
and clarity, at the beginning of any tangent or any non-tangent curve, define
the bearing and distance to the radius point, followed by the central angle and
arc length, or other selected curve elements. Two(2) curve geometry elements
are essential to define, and should be in the order of their intended priority;
normally, common curve elements described in controlling order are Radius,
Central Angle, Chord and Arc Length.
Monumentation Principles
To assure positive identity and location in a legal,
theoretical and/or physical sense, every land parcel must be directly and/or
indirectly referenced to artificial and/or natural monumentation or landmarks
by definition and/or by referral to record surveys, maps, plats, or writings.
Artificial monuments include man-made monuments,
landmarks, property or land improvements, the equator, polar axis, parallels of
latitude and meridians of longitude, or other mapping and surveying control
reference datum established by mankind.
Natural monuments include natural waterways or
landforms, the sun and stars, magnetic phenomena and other prominent features
of the Earth that are definable by description and/or other locative referral.
Descriptions may define a parcel by non-monumented or
invisible boundary courses; however, artificial and/or natural monuments or
landmarks must inevitably prevail by ultimate referral and/or locative origin.
For monuments, surveys, maps or plats to be controlling,
they must be specifically called for and/or defined in the related
description. Any monuments established after a description is written
and recorded are not controlling; except, when subject to a future
survey by referral.
All corners and/or monuments recited in a description
are considered of equal importance; including points of commencement or
beginning, as well as described calls which further reference corners from any
other points of origin or from nearby witness or accessory objects as locative
ties.
Points of commencement and beginning must always be
defined by an easily identified and retraceable location, or an origin
described by previous public record, to assure compatibility; monumentation is
essential.
Adjoining parcels referenced by differing calls may
result in an overlap or gap along the common boundary; particularly points of
commencement or beginning which are not referenced to common points of origin.
Double controlling calls for the same corner of a
parcel are also to be carefully avoided; such as “thence North 100 feet to
the SE corner of said forty, being a concrete monument";
particularly points of origin.
Measurement Principles
Units of lineal or directional measurement are
critical elements in any land description, and their equivalency are presumed
to be defined by applicable standards as of the date of the involved
description.
Units of angular or lineal measurement should be
expressed with consistency, throughout a description, without misleading
precision and/or accuracy.
Avoid using computational results with significant
figures or digits which are not consistent with or warranted by the accuracy of
the actual measurements or unadjusted data.
All courses defined by distance and direction in a
land description are presumed to describe a horizontal straight line segment
between the end points; unless qualified or described to the contrary, such as
along a sinuous waterway shoreline or a curvilinear course.
If conflict or confusion is revealed between any
measurements cited by written and numerical figures, the written is preferred
as it is least likely to be affected by transcription or transposition errors.
The permissible uncertainty or tolerance of all
measurements is normally determined by the laws and/or standards applicable
when measured; if any controversy ensues, an ultimate determination is adjudged
by the courts.
Always state mathematical figures to a consistent,
realistic and/or practical precision; avoid the use of computational results
which exceed the precision acquired by actual measurement.
Units of angular or distance measure should be stated
or cited in words in lieu of abbreviation or punctuation. Example: thence North
62 degrees 30 minutes 27 seconds East a distance of 1234.65 feet.
Excess or deficiency of distance measure is equitably
distributed, by a proportionate ratio of record to measured distances,
between the nearest existing record monuments involved, for parcels
created by any simultaneous division.
The area of land described should be expressed in
square feet and/or acres, followed by the term words "more or less"; and
the method of area determination should also be stated, such as by computer
cogo program, DMD method, planimeter or other mensurative application.
Divisional Principles
Section 59.73(2) Wisconsin Statutes provides that the
subdivision of any PLSS section or smaller division of land of the original
U.S. Government Survey, shall be made according to the rules or instructions of
the U.S. Department of Interior, Bureau of
Land Management; often called the federal rule. Therefore, any
descriptive calls which subdivide, protract or describe such lands by
fractional division should be based upon aliquot partition principles and not by
area proportionment; unless specifically provided to the contrary.
Perhaps the following Wisconsin Supreme Court decision
in 31 Wis 142 best established the foregoing legal principle; even when an area
call was included in the description:
“A conveyance of the east 1/2 of
a certain 1/4-1/4 section of land, containing 20 acres according to the
government survey, conveys the whole of the described subdivision as determined
by the monuments established by the original survey, whatever may be the actual
quantity of land therein.”
For non-sectionalized land parcels created by a record deed, survey
plat or map, subsequent to the
Obviously, if equal area or quantity is to be
controlling in any land description it must be specifically asserted in writing
in order to express the underlying intent of the title transfer.
A dividing line by lineal or acreage offset, is
normally at right angles to and parallel with the boundary line from which it
is to be measured or referenced; unless otherwise specified by the deed calls.
The dividing line between halves of equal area, is
normally at a mean bearing of the adjacent boundaries of reference; a
mathematical solution for equal area is normally necessary for any parcels with
irregular boundaries. Always apply common rules of construction to assure
geometric configuration.
When opposite parcel boundaries will not accommodate a
common line of division, the dividing line is normally by a cardinal true East,
West, North or South line as circumstances may dictate.
When parcels are described by specified area adjoining
a described line or boundary, the parcel is assumed to be square; or is assumed
to be a parallelogram, with equal sides as circumstances permit, when located
in the corner of intersecting boundary lines.
When describing land by lineal or area offset,
involving parcels with an irregular boundary or non-parallel sides, define the
line of division by location and direction to avoid conflict or confusion.
The principle of parallelism is applicable to land partitioning described by a distance or lineal offset as shown below; normally the offset is at right angles or radial to the line referred by the directional call.
Be wary and avoid double exception terms without
segregation, such as "Lot 1 except the East 50 feet, except the South 50
feet"; does the last exception apply to Lot 1 or to the first exception
only??
Common Legal Principles
Described boundaries are presumed to be fixed in
location unless altered by natural and/or man-made causes, collateral, parol or
extrinsic evidence and/or the application of boundary law principles by legal
precedence.
Words and their meanings and courses recited in a
description are to be interpreted as of the date of the description.
Unless provided to the contrary, the ownership of a
land parcel upon a public road, street or highway carries title to the
centerline thereof.
Writings, surveys, maps or plats of referral in a
description, are to be regarded as if incorporated into the description itself.
This may also include field notes which were required by law to be recorded for
the
related survey map or plat; such as an original PLSS
township survey.
If a description contains an error or mistake which
can be isolated, it must be placed where it occurs; without exception.
When similar calls are in conflict, and without
certainty of either, the first stated is normally preferred.
A particular intent will by presumption control a
general one that is inconsistent with it; this is an important principle of
interpretation.
A described meander line is seldom the actual property
boundary of riparian lands, which normally extend to the abutting waterway
between extended property lines. Example: “and including that land lying
between the described meander line and property lines extended to the (named
waterway)”.
Title to the bed of all navigable lakes, and of all
non-navigable lakes meandered by original government survey, is held in
trust by the State. Title to the bed of all non-navigable lakes and streams, or
navigable streams whether meandered or not, is to the center or to the
centerline thereof; subject to public water rights, such as boating and
fishing.
The test of navigability in
Whatever the difficulty or circumstance involved, one
thing is certain, and that is the cardinal rule to always use the best
available evidence involving the composition and/or interpretation of land
descriptions.
Our courts are most reluctant to make void any written
description of record, without every conceivable attempt to give effect to the
writings for intended legal purposes; common rules of construction are applied
in a consistent manner and/or precedented by adjudication.
Use the terms over, under, upon and/or
across with particular care when describing the underlying intent and/or
legal propriety of land easement rights or interests.
Land descriptions in
Every land description must impact the public record
....
with flawless perpetuity and legal propriety.
Maxims of Jurisprudence
The following philosophy of law is often cited or
referred by the courts involving ambiguous land descriptions, boundaries and/or
conveyances:
When
the reason for a principle ceases, so should the principle itself.
Where
the reason is the same, the principle should be the same.
One
who grants a thing is presumed to also grant whatever is essential to its use.
Between
rights otherwise equal, the earliest is preferred.
Particular
expressions qualify those that are general.
An
interpretation that gives effect is preferred to one that makes void.
The last two maxims are essential for the composition
or interpretation of land descriptions; and also provide the primary basis for
the legal precedence of description calls.
Reformation of Descriptions
Descriptions can be improved by alterations,
correction of errors and/or the removal of defects by legal reformation. The
most common practice is by re-recording an instrument of conveyance, such as a
deed; providing that the involved grantor(s) and grantee(s) are still parties
thereto. The circuit court in any county may also order the correction of a
land conveyance of record per S.847.07 Wisconsin Statutes; correction
affidavits may be recorded involving descriptions on subdivision plats or
certified survey maps per S.236.295 Wisconsin Statutes; local governing body
may order an assessors plat to reconcile descriptions per S.70.27 Wisconsin
Statutes.
Concluding Remarks
Due to the overall scope, magnitude and complexity of
land descriptions, it is impossible to address each and every application in
this treatise; however, it is believed that adequate reference has been
provided for the majority of circumstances normally encountered in daily
practice.
Some of the principles related in this treatise may seem
somewhat repetitious; however, upon closer examination this is essential,
depending upon the basis of the application involved or the underlying
circumstances.
In the event that any land description involves
definitive complexity or uncertainty of an ambiguous nature, it is recommended
that the opinion of other land surveyors and/or attorneys be relied upon to the
fullest extent.
A basic understanding of surveying and mapping
principles and practices is absolutely essential; more particularly coordinate
geometry, mathematical computations, map plotting and common rules of land description composition or construction.
Of paramount importance, is reliance upon common
boundary law or legal principles which have been precedented by the courts
and/or augmented by the legal opinions of the Office of Attorney General in
Wisconsin.
Singularly, a written land description is the most
important instrument of public record involving the establishment of land
ownership boundaries, as it directly and/or indirectly involves the owner,
buyer, seller, surveyor, attorney, real property lister, appraiser, realtor,
title insurer, mortgagor and several other allied interests.
Every effort must be made to draft and/or interpret
every written land description with diligent care; regardless of magnitude or
complexity.
The contrary may often be shown…
so trust no result until fully verified.
References
Adequate technical and legal publication references
are also essential for surveying, mapping and land description dispositions.
Most court houses also have excellent law libraries. At minimum, the following publications
are highly recommended:
Black's
Law Dictionary(2)
ACSM
Definitions of Surveying & Associated Terms(2)
Land
Survey Descriptions by Wattles(2)
Writing
Legal Descriptions by Wattles (2)
Advanced
Land Descriptions by Cuomo & Minnick(2)
Evidence
& Procedures For Boundary Location by Brown, Robillard & Wilson(2)
Boundary
Control & Legal Principles by Brown, Robillard & Wilson(2)
Related
Wisconsin Statutes and Administrative Codes(1)(4)
Related
Wisconsin Attorney General Opinions(1)(4)
Related
Wisconsin Supreme Court Decisions(1)
United
States Code Annotated, Title 43, Public Lands(3)
Reference Sources
(1) Wisconsin
Society of Land Surveyors, 2128 Broken Hill Road, Waukesha, Wisconsin 53188. Phone: (262) 549-1533.
(2)
Landmark Enterprises, 2640 Cordova Lane
Suite 103, Rancho Cordova, California 95670. Phone: (916) 852-6859.
(3) West Publishing Company, P.O. Box 64526, St.
Paul, Minnesota 55164.
(4) State of Wisconsin Document Sales Unit, P.O.
Box 7840, Madison, Wisconsin 53707.
Attachments
Wisconsin
Statutory References
Abbreviated
Land Description Principles
Tri-Dimensional
Descriptions
Diagram
of Curve Geometry Terms
A QUOTATION OF ENDURING SIGNIFICANCE
By:
Napoleon Bonaparte, 1807
"Half measures always result in the loss of time
and money. The only way to sort out the confusion in the field of general land
records, is to proceed with the surveying and evaluation of each individual
land parcel in all the communities of the Empire. A good cadastre will
constitute a complement of my Code as far as land possession is concerned. The
maps must be sufficiently precise and complete so that they could determine the
boundaries between individual properties and prevent litigation."
Comment, critique or query regarding the contents of
this treatise is encouraged by reply to:
William C. Rohde
P.O.
Box 82
Larsen,
Wisconsin 54947
Phone:
920-836-9930
E-Mail:
wrohde@new.rr.net
The latter is essential, in order to incorporate
necessary revisions, deletions or additional context, so that this treatise
will remain as a viable reference for future applications involving land
descriptions.
Section Title/Content
2.01 County boundaries.
2.02 - 2.04 Construction of boundary descriptions (counties).
59.43(5) Including name of person drafting
instrument.
59.43(8) Required signature and seal on survey
document for
filing
or recording.
59.72 Land Information.
59.73 Surveys; expressing bearings,
subdividing sections.
70.03 Definition of Real Property.
70.27 Assessor’s Plat.
66.1024 Effect of reservation or exception in
conveyance.
66.1005(1) Discontinuance of
highways; reversion of title.
84.095 Transportation project plats.
236.18
236.18(9) Multiple descriptions.
236.295 Correction instruments.
236.21(1)(b) Subdivision plat....description
of land surveyed.
236.34(1)(d)(2) Certified survey map....description
of land surveyed.
243.04 “Conveyance” defined.
703.12 Description of units (condominium
plat).
Chapter 706 Conveyances of real
property; recording; titles.
840.01 Definition of interest in real
property.
847.03 Removal of restrictions.
847.07 Correction of description in
conveyance.
893.24
Adverse possession; section
lines.
State Constitution: Article
II, Section I, State boundary.