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Curt always enjoyed his “The Surveyor and The Law” columns. Prior to the Internet, sending letters into the ACSM journal was always a good way to address inquiries as to sound surveying procedures. Oftentimes, Curt’s replies would generate dialogue and occasionally a bit of controversy, all in the spirit of education.
Owing to Curt’s comprehensive grasp of national surveying procedures, he was able to tackle a myriad of surveying inquiries, all the while developing the principles for his noted textbooks. Curt’s humble willingness to take on questions and critics is an attribute missing in today’s society.
This column follows last month’s article d ealing with the odd assessor’s description. These can still be found and they are usually confounding.
June 1963
By Curtis M. Brown
E. H. Owens* – Author asks ¹ “Is there any surveyor who could locate the property?” I would say “Yes, quite easily.” He asks “Is it a valid mortgage?” Again the answer is “Yes.”
As to the latter question, the obligation created by the loan is primarily evidenced by the note, not the mortgage, which is given as security in case of nonpayment. If payment is made, the mortgage will be released and be of no further effect.
If payment is not made, and it is necessary to foreclose, a court can correct the description to conform to the intention of the parties. A shrewd mortgagee would have insisted on a survey prior to the mortgage, at the expense of the mortgagor. Now, if necessary to foreclose, the mortgagee will have to pay for the survey, and if he is unable to get the mortgagor to correct the mortgage he will have the additional expense of a lawyer and court costs.
The duty of the surveyor is to interview the parties and find out their intentions and find what property was shown at the time the loan was secured; then mark it off on the ground, show the lines of possession, and finally write a correct description, which may be used in court to correct the description in the mortgage or to quiet title.
Comparing the descriptions in the mortgage and the tax deed, it is quite apparent what the intention was in each case; the tax deed, by using certain common abbreviations in which FRL is used as an abbreviation of fractional, is readily understood by any surveyor or title man accustomed to work in lands subdivided by the public land survey. Because of the fact that a tax title is an involuntary conveyance, it is subject to attack by the former owner on the ground of inadequacy of description and other matters.
Section No. 19 is always fractional, the shortage being thrown into the West ½ of S. W. ¼ and West ½ of the N.W. ¼. A sketch is enclosed showing a presurvey location of the property; the tax deed covers the tract marked "Conveyed"; the mortgage covers the tract marked "Conveyed" and also the tract marked "3 A." Without a copy of the original government plat and a resurvey, it is impossible to determine whether exception 1 adjoins or overlaps exception 3.
The tax deed description if written out in full would read, "The west fractional ½ of the southwest fractional ¼ of Sec. 19, (insert Twp. & Range) etc," the rest of the description being perfectly obvious.
The survey investigation should reveal whether tract 3 A was intentionally included in the mortgage. This description was possible copied or imitated from and earlier tax record description not excepting tract 3 A.
A further search of the record and an investigation as to whether tract 3 A was secured by some other conveyance and is or is not in possession of mortgagor must be made by surveyor before writing corrected description .
These descriptions are written in the gobble-de-gook known as "Legal Descriptions" in the public land survey States. These descriptions are based upon certain untrue assumptions as follows; the face of the earth is a perfect plane surface in which all north-south lines are parallel and at right angles to the east-west lines which are assumed to be straight lines instead of curved parallels of latitude; the boundary between two tracts is assumed to be a line instead of a portion of a vertical plane which cuts the surface in an undulating line due to differences of level and curvature; the mathematical relationships such as "closure " are figured as though the earth were a perfect plane; all section and subdivision of section lines are assumed to be north-south or east-west although each has its own direction, and these directions frequently vary as much as four or five degrees from true courses. These assumptions are very convenient for lawyers, courts, and plane surveyors, but mother earth refuses to go along with the assumptions. Consequently in central United States an error of about one foot to the mile exists between the plane assumption and the spherical earth upon which the described tract is to be staked. This is about a one part in 5,000 discrepancy.
The "Minimum Standard Detail Requirements for Land Title Surveys" jointly established and adopted by ATA and ACSM in 1962, provides that the title insurance company shall furnish the surveyor the record description of the property (all of which is based upon the assumption that the earth is a flat plane surface) and that the surveyor shall locate the corners within a tolerance of 0.02 foot in business districts and 0.04 foot in residential districts. This is unattainable unless a flat earth can be supplied upon which the tract can be staked. If a title company guarantees all the tracts in a "square mile," the discrepancy of about one foot must show up somewhere in the descriptions and that is 50 times the tolerance of 0.02 foot or 25 times the tolerance of 0.04 foot. If an accuracy in excess of one part in 5,000 is necessary, we must first revise the method of describing land to conform to the actual shape of the earth.
In the problem with which we started, the outside boundaries of the half quarter section are, according to custom, assumed to be north-south and east-west. In exception 1, north is taken to be parallel to the east line of the half-quarter and east and west to be parallel to the south line of the half-quarter; in exceptions 2 and 3, north is taken to mean parallel to the west line and east and west parallel to the south line of the half-quarter section. Exceptions 1 and 3 therefore, could not exactly adjoin unless the east and west lines of the half quarter are exactly parallel, a condition which very rarely exists.
In interpreting and correcting the description in the mortgage, it is obvious that FRL meant front-right-left to the neophyte who wrote it, "ex" stood for extending instead of except, and several other omissions were made. A correction is obviously necessary to make the instrument a valid notice to the public, and the task of the surveyor is to write a correct description, in accordance with the desire and intention of the parties, which may be used in a voluntary correction or by a forced correction by a court at the request of one of the parties. This should also be so written that it may be used in a quiet title action, if necessary, against the former owner from whom the property was taken by the tax title.
* Kansas Ci
ty, Mo.
¹ SURVEYING AND MAPPING, December 1962, Vol. 22, No. 4, page 608.
"Professional stature cannot be attained by self-proclamation. The lazy say, `give me the prize without the training, the wages without work, the reward without the quest, heaven without probation, a profession’s prestige without a profession’s skill.’ If the land surveyor is to have professional standing, that standing must be earned and bestowed upon him by others." —Curtis M. Brown Professional Land Surveyor San Diego, California
Author Michael Pallamary has compiled the writings and lectures of the late Curtis M. Brown. These works are published in The Curt Brown Chronicles.
A 841Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE