William C. Rohde, RLS 841
Wisconsin Land Surveyor
The ultimate objective of any land description for legal purposes is the definition and 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.
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 survey.
- 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.
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, during its transcription or word processing, preparation and publication.
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, etc.
Normally, informative calls are generally descriptive and controlling calls are particularly descriptive by specific locative intention in application.
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 Chain Lake; thence easterly 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, all simultaneous land parcels by platting involve equal title rights, unless subsequently divided, and all 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 Wisconsin, deed calls have legal precedence in the following order of importance, when interpreting their expressed intent, or when confronted with conflicts, confusion and other evident or latent ambiguities.
- Call for a Survey
- Call for a Natural Monument
- 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.
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 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.
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.
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 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 tothe SE corner of said forty, being a concrete monument"; particularly points of origin.
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 both written and numerical figures, the written is preferred as it is east 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"; the method of area determination should also be stated, such as by computer, by DMD method, by planimeter or other mensurative application.
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.
A fractional part of a whole parcel, involving any non-sectionalized lands, is normally upon an area or proportional basis. The sectionalized PLSS lands are divided by aliquot partition; normally by mid-point to mid-point divisional lines.
Section 59.62 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 issued by the U.S. Department of Interior, Bureau of Land Management; 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.
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.
Unless specifically indicated, a described meander line is seldom the actual property boundary of riparian lands, which normally extend to the abutting waterway between the prolongation of the upland property lines.
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 Wisconsin is capability of floating a canoe in any waterway at any time of the year. The legal line of separation, between the bed of a lake held in trust by the State and riparian upland ownership, is the ordinary high water mark(OHWM), as determined by the Wisconsin Department of Natural Resources; unless otherwise described. A navigable waterway bed is also normally contained by defined banks and/or further delineated by the separation of aquatic and upland type vegetation.
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 Wisconsin must also comply with provisions of Chapter 706 Conveyances of Real Property; Recording; Titles, of Wisconsin Statutes; which should be familiar to any scrivener.
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.
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 VERIFIED
Comment, critique or query regarding the contents of this treatise is encouraged by reply to:
William C. Rohde, RLS 841
P.O. Box 82
Larsen, Wisconsin 54947
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.
- 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)
(1) Wisconsin Society of Land Surveyors, 2935 Coventry Lane, Waukesha, Wisconsin 53188. Phone: (414) 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.
- Wisconsin Statutory References
- Diagram of Curve Geometry Terms
- Glossary of Common Land Description and Mapping Terms
- Abbreviated Land Description Principles
- PLSS Section Subdivision Descriptions
- Tri-Dimensional Descriptions
A QUOTATION OF ENDURING SIGNIFICANCE
By: Napolean 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."
LAND DESCRIPTION PRINCIPLES
Wisconsin Statutory References
- State Constitution: Article II, Section I, State boundary.
- 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.
- 70.27 Assessor's Plat.
- 80.01(5) Effect of reservation or exception in conveyance.
- 80.32(3) Discontinuance of highways; reversion of title.
- 84.095 Transportation project plats.
- 236.18 Wisconsin coordinate system.
- 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.