Glossary Survey Terms from NYS prep Dr. Paiva Flashcards
derived from NSPS definitions and Terms
Abstract of Title
A summary of all conveyances, such as deeds, or wills and legal proceedings, giving the names of the parties, the description of the land, and the agreements, arranged to show the continuity of ownership.
Abut
1) To touch, as contiguous estates, along a border or with a projecting part; as “his lands abuts on the road.”
2) To terminate or touch with an end; as two lots abutting each other.”
(Two terms that implicitly “touch” are “adjoiner” & “abut”. “Adjacent” does not imply touching.
Adjoiner
Adjoins means to be in contact with (touches); hence the adjoiner is the land win contact with the instant property. When speaking it is often used to mean the written deed to the adjoiner.
Adverse Possession
A method of acquisition of title by possession for a statutory method of acquiring title to land by limitation. The possession must be actual; adverse; under claim of right;’ continuous; open; notorious; exclusive; and hostile. Although color of title is not essential, it is of great evidentiary value in establishing adverse possession. When the owner against whom adverse possession is exercised, deeds the land to another party the concept of tacking may or not be allowed for determination of the statutory period (10 years in NY). (see “Adverse Possession depends on-“)
Adverse Possession depends on-
Adverse possession depends on intent of occupant to claim and hold real property in opposition to the entire world; and embodies the idea that owner of, or persons interested in property have knowledge of ownership by the occupant.
Payments of taxes alone is not sufficient in itself to establish adverse possession. It is mandatory that element of continuous possession exists for the full statutory period (10 years in NY).
tacking
The adding of successive periods of adverse possession or use by different persons to fulfill the statutory period for continuous possession (see also “privity”).
privity
The mutual or successive relationship to the same right of or property (see also “tacking”).
Affidavit
A statement or declaration reduced to writing, sworn or affirmed before some officer with authority to administer such.
Alienate
To convey or transfer to another, as title, property, or right; to part voluntarily with ownership of.
Latent Ambiguity
An uncertainty which does not appear upon the face of an instrument, but arises from evidence aliunde (extrinsic), that is one which is not involved in the words themselves, but arises from outside matters. Thus a conveyance to “John Smith, living on Fifth Avenue,” when it appears that there are two or more John Smiths so living, contains a latent ambiguity. (as opposed to “patent ambiguity.”)
Patent Ambiguity
An ambiguity that appears on the face of the instrument that arises from defective, obscure, or insensible language used.
Ancient Fences
Fence lines maintained around a tract for at least 30 years, ins some states 50 years, which then constitute prima facie (at first sight) in fixing boundaries correctly as against a late survey.
Avulsion
Occurs when a stream suddenly and perceptibly changes its course, dividing a tract into two parcels. After and avulsion, the title of the divided tract is not affected. In some states, parties wishing the title to remain in the position before the avulsion, may be required to take action such as moving the streams location, within a period of time specified by statute or common law.
Ancient Writings
Documents bearing on their face, every evidence of age and authenticity, or age of 30 years, coming from natural and reasonable custody. Presumed to be genuine without express proof. Only original and not record copy can be considered such a document.
Appurtenance
That which belongs to another thing as a principal and passing as incident to it. Examples: right of way or other easement to land, right of common ingress and egress to a pasture, outhouse, barn, etc.
Bank
Banks are elevations of land that confine the waters in their natural channel. “ The permanent elevations of land which confine the water to its highest point at which it is still restricted to a definite course.” Horton v. Niagara, Lockport and Ontario Power Co. 231 A D 386 (4th Dept. 1931.) Banks are land on which vegetation grows wherever the bank is not too steep to permit such growth, the bed being soil of a different character and having no vegetation, or only such as exists when commonly submerged by water.
Bed
The bed of a stream or lake extends from high-water mark to high-water mark. Usually kept free of vegetation by the wash of the waters of the stream.
Boundary of Land Bordering a Navigable Stream or Lake
A “riparian” or “littoral” landowner bordering a navigable water body holds title to the high water mark.
Boundary of Land Bordering a Nonnavigable Stream
Where a nonnavigable stream separates two properties and the title of each parcel extends to the stream, the “thread of the stream” is the boundary line between adjoining riparian landowners.
Boundary of Land Bordering a Nonnavigable Lake
A littoral landowner bordering on a nonnavigable lake holds title to the center or thread of the lake.
Canal
An artificial waterway used for navigation, drainage or irrigation of land or an artificial trench, filled with water…for the navigation of boats and vessels…constructed, owned, or managed by either the state or a company incorporated under state law.
Canals means the channel and adjacent state-owned banks of the inland waterways, constructed, improved, or designated by the authority of the legislature, including canalized rivers and lakes, canal water supply reservoirs, canal water supply feeder channels, and appertaining structures, acquired by the state for the proper maintenance and operation of the canals.
Common Law
The body of judicial decisions originally developed in England and based upon immemorial usage. It is unwritten law as opposed to statute, or written, law. The English common law forms the foundation for the system of law in the United States. Today is also considered to be “case law” created from judgements delivered in appellate (as opposed to district or circuit) courts.
Condominium
Form of ownership less than the whole. The fee ownership of separated portions of multistoried buildings by statute which provides the mechanics and facilities for formal filing and recordation of a divided interest in property, where division are horizontal and vertical.
Fee
A legal interest in land that gives the owner the right to use and possess the property. Also an inheritable estate. (See Fee Simple)
Fee Simple
An absolute fee; a fee without limitations to any particularly class of heirs or restrictions, but subject to the limitation of eminent domain, escheat, police power, and taxation, and inheritable estate.
Contiguous
Varies in meaning from in close proximity to near, though not in contact to, touching, or bounded, or traversed by. It is not one of the terms that denotes “touching.”
Closing Corner
A corner at the intersection of a surveyed line with a previously established boundary line. In the case of the USPLS, to compensate for convergence of the meridians, standard parallels (once termed “correction lines”) are established at intervals of 24 miles. These were formerly established at varying intervals up to 60 miles. Corners established at the time the standard parallel is run are termed “standard corners” and govern the surveys to the north. A second set, closing corners, are established at the point where the survey from the south intersect the standard parallel. Closing corners are also established at the boundaries of reservations, grants, claims, and other previously surveyed or segregated tracts of land. Note: closing corners are NOT restricted to lands subdivided by the USPLS.
Principal Meridian (referenced by another definition)
As each new US territory was opened to settlement, a line running due North-South for as much as several hundred miles, was carefully measured and marked on the ground. (There are actual several principal meridians. Initially these were identified as the First Principal Meridian, The Second Principal Meridian, and so on, each one farther west from the previous one.) This was next performed an east-west line, called a “base line.” Township divisions have been based on these lines.
Double Corner
Normally the two sets of corners along a standard parallel; the standard township, sections and quarter-section corners placed at regular intervals of measurement; additionally, the closing corners meridians, range and section lines of the survey brought in from the south. Note: double corners are NOT restricted to the lands subdivided by the USPLS.
Lost Corner
A previously established survey corner whose position cannot be recovered beyond resonable doubt, either from traces of the original marks or from acceptable evidence or testimony that bears on the original position, and whose location can be restored only by reference to one or more interdependent corners. Note: lost corners are NOT restricted to lands subdivided by the USPLS.
Obliterated Corner
A corner at which there are no remaining traces of the monument or its accessories, but whose location has been perpetuated or may be recovered beyond reasonable doubt, by the acts and testimony of the interested landowners, competent surveyors, other qualified local authorities, witnesses, or by some acceptable record evidence. A position that depends upon the use of collateral evidence can be accepted only as duly supported, generally through proper relation of known corners, and by agreement with field notes regarding distances to natural object, stream crossing, line trees, and off-line tree blazes, etc., or unquestionable testimony. Note: obliterated corners are NOT restricted to lands subdivided by the USPLS.
Covenant
A promise, incorporated in a t rust indenture or other formal instrument, to perform certain acts or to refrain from the performance of certain acts.
Dedication
“To dedicate” means to appropriate and set apart land from one’s private property to some public use. The dedication may be either expressed or implied. It is expressed when there is an express manifestation on the part of the owner of his purpose to devote the land to a particular public use, such as the streets in platted subdivisions. It is implied when the owner’s acts and conduct manifest an intention to devote the land to a public use. To make the dedication complete, there must not be only and intention on part of the owner to set apart the land for the use and benefit of the public, but there must also be and acceptance by the public.
General Warranty Deed
A deed which the grantor warrants the title against defects arising at any time, either before or after the grantor became connected with the land.
Quitclaim Warranty Deed
A form of conveyance whereby whatever interest the grantor possesses in the property describe in the deed is conveyed to the grantee without warranty of title (no warranty).
Special Warranty Deed
A deed in which the grantor warrants the title against defects arising after after he acquired the land but not against defects arising before that time. A deed wherein the grantor limits his liability to the grantee to anyone claiming by, from, through, or under him, the grantor. (going back to the beginning of time)
Trust Deed
A deed which established a trust. It generally is an instrument that conveys a legal title to property to a trustee and states his authority and the conditions binding upon him in dealing with the property held in trust. Frequently trust deeds are used to secure lenders against loss. In this respect they are similar to mortgages.
Deed
An instrument in writing, which, when executed and delivered, conveys and estate in real property or interest therein. Evidence in writing of the transfer of real property.
Demise
To convey or create an estate for years or life, used in leases to emphasize that it is long-term.
Bounds Description
Land described by calling for the adjoiners as “Bounded on the north by the land of Ostrom; bounded on the south by Cedar Street; bounded on the east by the Androscoggin River,” etc.
Legal Description
A description recognized by law which definitely locates property by reference to government surveys, coordinate systems or recorded maps; a description which is sufficient to locate the property without oral testimony.
Metes and Bounds Description
A description of a parcel of land by references to directions and distances around the tract, or by reference to natural record monuments.
Double Proportion Measurement
Method for restoring a lost corner interior in a simultaneous conveyance. Based on principal that the found monuments on the north and south should control the latitudinal position of the lost corner, and the found monuments east and west the longitudinal position. Note: Double proportionate measurement is not restricted to land subdivided by the USPLS . https://cdn.ez-pdh.com/course-material/3-8.png
Dower
The interest in real estate, which the law gives the widow of a deceased husband for life. Webster’s: the part of or interest in the real estate of a deceased spouse given by law to the surviving spouse during the surviving spouse’s life
Easements
A non-possessing interest held by one person in land of another whereby the first person is accorded partial use of such land for a specific purpose. An easement restricts but does not abridge the rights of the fee owner to the use and enjoyment of his land. Easements fall into 3 broad classifications , which are surface easement, subsurface easement, overhead easement. When there is an easement by one owner (A) for an access road over the land of another (B) the land of A is considered the dominant estate or tenement and the land of B is considered the servient estate.
Eminent Domain
The right by which a sovereign government, or some person acting in its name and under its authority, may acquire private property for public or quasi-public use upon payment of reasonable compensation and without consent of the owner. The right or power of the government of the government to take private property for public use, on making just compensation therefor.
Encroachment
1) A building, a part of a building, or obstruction, which intrudes upon or invades a highway or a sidewalk or trespasses upon the property of another. 2) The act of trespassing upon the domain of another. Partial, or gradual displacement of an existing use by another; as locating factories in a residential district.
Encumbrance
An interest or right in real property which diminishes the value of the fee, but does not prevent conveyance of the fee by the owner. Mortgages, taxes, and judgements are encumbrances known as liens. Restrictions, easements, and reservations are encumbrances, though not liens.
Escheat
Reversion of property to the state when three is no one competent or available to inherit.
Estate
1) Right or interest in a real property; either fee or lease for a period of years, the degree, nature or extent of interest a person has in the land.
2) The property of a deceased person.
Estop
To bar, stop or impede.
Estoppel
Preclusion in law, which prevents one from alleging or denying a fact, in consequence of his own previous acts.
Example: One neighbor indicates where they want to put a pool, asks other neighbor if this is on their land. Pool is installed, neighbor now says the pool is on their property and jumps in. This was class example, not sure what lengths we have to prove the original assertion (in writing, declared audibly, etc.).
Evidence
That which is legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it; means of making proof; medium of proof.
Extrinsic Evidence
External evidence, or that which is not contained in the body of an agreement, contract and the like. It is also said to be evidence not legitimately before the tribunal in which the determination is made. As contrasted with intrinsic evidence which is found within the “four corners” of the document any reference in the document to other documents, especially when recorded make those apparently external documents part of the intrinsic evidence.
Presumptive Evidence
Evidence that is treated as sufficient for a guilty verdict unless contradicted and outweighed by presentation of rebuttal evidence.
Fee Simple
An absolute fee; a fee without limitations to any particular class of heirs or restrictions, but subject to the limitations of eminent domain, escheat, police power, and taxation. An inheritable estate.
Fraud
A misstatement of material fact made with intent to deceive or made with reckless disregard of the truth, which does not deceive.
Hiatus
An area between two surveys of record, which by the record are described as having one or more common boundary lines with no omission. The title to the area within the hiatus, except possibly for adverse possession, would appear to remain where it was before the surveys were placed on record. Judicial opinion and court decree may be required in order to clear the record. Sometimes referred to as a “gore.” For surveyors, there never is such a thing as a gap, i.e. no ownership. (nonetheless, our teachers described an hiatus as a gap).
High-water Mark
The high-water mark of a stream or lake is the mark that separates its bed from its banks. It is the place where actions of water are so usual and long continued in ordinary years as to mark upon the soil of the bed a character distinct from that of the banks with respect to the vegetation and nature of the soil.
Island
An island in a river must be of a permanent character, not merely surrounded by water when the river is high, but permanently surrounded by a channel of the river, and not a sand bar subject to overflow by the rise of the river and connected with the mainland when the river is low. Crow v. Johnston (209 Ark. 1053).
Laches
An equitable defense or doctrine, where the person invoking laches is asserting that an opposing party has “slept on its rights,” and that, because of this delay, other party is no longer entitled to the original claim. Put another way, failure to assert one’s rights in a timely manner can result in a claim’s being barred by laches. Laches is a form of estoppel for delay. Best represented by the saying: “Equity aids the vigilant, not the sleeping ones” (that is, those who sleep on their rights).
Littoral
of or pertaining to, a shore, especially a seashore (“riparian” is used in relation to rivers). More specifically, applied to the depth zone of the sea floor lying between tide levels. Today often used with shore of lakes as well.
Low-water Mark
The lowest line made by the receding tide, not the lowest line which a stream of fresh water emptying into the sea, or a cove, or tidal river makes with the land. 12 Am J2d Bound § 13.
Meander Lines
The traverse of a margin of a permanent natural body of water is termed a meander line. From Manual of Instructions for the Survey of the Public Lands of the United States (1973). Meander lines are not boundaries defining the area of ownership of lands adjacent to the water, but define the sinuosities of the bank of the water body. Meander lines are a means of ascertaining the quantity of land embraced in the survey; absent fraud or mistake, the water body, ot the meander lines as run on the ground, is the boundary. Paraphrased from: Manual of Instructions for the Survey of the Public Lands of the United States (1973)
Metes
Measurements- courses assigned by measure.
Metes and Bounds
A method of describing land by measure of length of the boundary lines, whereby boundary lines are identified by their distinguishing features as well as by measure. Most common method is to recite the direction and length of each line as one would walk around the perimeter. Often recited by reference to record, natural and/or artificial monuments, and record, natural and/or cultural boundary lines.
Artificial Monument
A relatively permanent object used to identify the location of a survey station or corner. Objects include manmade structures such as abutments, stone markers, concrete markers, and railroad rails.
Natural Monument
Natural monuments are permanent objects which are the works of nature, such as streams, rivers, lakes, ponds, trees, ledges, and rock outcrops.
Record Monument
An adjoiner property called in for a deed such as a street or particular parcel of land. Frequently the boundary line of the adjoiner is referred to as the record monument; actually, the entire property, rather than the line, is the monument. Physical monuments may or may not mark a record monument.
Monument
A physical structure which marks the location of corner or other survey point. In public-land surveys, the term “corner” is employed to denote a point determined by the surveying process, whereas the “monument” is the physical structure erected to mark the corner point upon the Earth’s surface. Even though they are not synonymous, the two terms are often used in the same sense.
More or Less
To be taken as words of caution, denoting some uncertainty in the mind of one using them, and a desire not to misrepresent. When used in connection with quantity and distance, they are words of safety and precaution, ended to merely cover some slight or unimportant inaccuracy. if used with the distance or direction on a closing course, it is in intended that the distance or bearing is only informative and that “to the point of beginning” controls. About 50 acres more or less should be avoided as it indicates, “I don’t know.”
Mortgage
A conditional conveyance of real property; contingent upon a failure of specific performance, i.e. payment of a debt, etc.
Navigable Waters
A precise definition of “navigable waters” is difficult, if not impossible, because the definition is in a fluid state. For example, in 1980 the Arkansas Supreme Court greatly expanded the generally previously accepted definition of the term. The U.S. Supreme Court, in the leading federal case on navigability, was cautious when dealing with the question of navigability:
“The legal concept of navigability embraces both public and private interests. It is not to be determined by a formula which fits every type of stream under all circumstances and at all times. Our past decisions have taken due account of the changes and complexities in the circumstances of a river. We do not purport not to lay down any single definitive test.” United States v. Appalachian Electric Power Co., 311 U.S. 377 (1940)
Used as a classification for ownership and use purposes of waters. Supreme Court rule generally is that streams and lakes that are navigable in fact must be regarded as navigable by law. The test of “is it capable of being useful for commerce?”
True North
A term used to define:
1) An astronomic meridian;
2) A geodetic meridian;
3) The direction of north from magnetic north corrected for declination;
4) The meridional direction assumed in a survey description;
5) The cardinal directions run in the Public Land Survey. Since the term is subject to several interpretations, it should not be used.
Thus the need for basis of bearings or basis for north in a survey.
Parol Evidence
Oral evidence; that which is given by word of mouth; the ordinary kind of evidence, given by witnesses in court. In a particular sense, and with reference to contracts, deeds, wills, and other writings, parol evidence is the same as extraneous evidence or evidence aliunde (“aliunde” is “extrinsic”).
Parol Agreement
Oral agreement between the owners establishing the boundaries dividing adjacent land. Only applies to the parties, thus almost never to successors in title.
Prescription
Title obtained in law by long possession. Occupancy for the period prescribed by the Code of Civil Procedure, as sufficient to bar an action for the recovery of the property, gives title by prescription. Usually creates an interest similar to an easement.
Prima Facie Evidence
Evidence deemed by law to be sufficient to establish a fact if the evidence is not disputed. “On the face of it,” presumed to be correct.
Proration
Method of distributing discovered excess or deficiency between parties having equal rights or proportionate rights to the excess or deficiency. Also…a method of calibrating the tape of a recent surveyor against that of the original (or previous) surveyor.
Proportionate Measure
Measurement that applies even distribution of a measured excess or deficiency to provide equitable distribution of that excess or deficiency to all the parties. Not restricted to the USPLS.
Quiet Title
Court action to clear title (to “settle”), remove clouds and establish ownership.
Reliction
The gradual and imperceptible recession by water, by which land that was covered before was left dry. Where the water of a river or lake, whether navigable or not, recedes slowly and imperceptibly, and the land before covered by water is left dry, such land belongs to the riparian owner from whose shore the water has receded.
Remand
An action by an appellate court in which it sends back a case to the trial court or lower appellate court for action (a court procedure).
Right-of-Way
Strip or area, can be surface, overhead, air right, or subsurface rights, granted by deed or easement for construction and/or maintenance for a designated use such as utilities, flowage, etc. Title may be in fee or easement and it is not a third type of title.
Right of Access
Right to ingress and egress from a property. It is, when it abuts a highway or street, a private easement and not a public one. Well-established in law that this right cannot be denied or unreasonably restricted unless reasonable access is available or provided elsewhere or reasonable payment is made for loss due to such denial or restriction.
Riparian
Pertaining to anything connected with or adjacent to the banks of a stream or other water body.
Senior Rights
The rights in a parcel or parcels of land created in sequence with a lapse of time in between them. A person granting part of his land to another (the senior right) cannot, at a later date convey the same to another (the junior right). A buyer has a right to all land called for in a deed, the seller (junior) owns the remainder.
Shore
Land which is covered and uncovered by the rise and fall of normal tides. it is the stream of land between mean high and low water lines. When interpreted strictly, applies only to land along tidal waters. Also referred to as “beach” or “seashore.”
Tenancy by the Entirety
Created by conveyance to husband and wife, whereupon each becomes seized and possess of the entire property upon the death of one, the survivor takes the whole.
Tenancy in Common
Holding of a property by two or more persons, each of which has an undivided interest, which upon death, passes to the heirs and not the survivor or survivors.
Joint Tenancy
Holding of property by two or more persons, each of which has an undivided interest. Upon the death of one, the survivors receive the decedent’s share.
Thalweg Line
The deepest way or valley of a riverbed.
Thread of a stream
The centerline of the main channel formed equidistant between the water’s edges at low water stage. It is irrespective of the thalweg line, which may be closer to one bank than another.
Title
1) The union of all the elements which constitute ownership, at common law divided into possession, right of possession, and right of property, the last two now, however, being considered essentially the same.
2) That which constitutes a just cause of exclusive possession; the facts or events, collectively, which give rise to the ownership of property, real or personal.
3) The instrument that is evidence of a right.
Cloud on Title
An outstanding claim or encumbrance which if valid will affect or impair the owner’s title; a judgement or dower interest.
Color of Title
If a claim to a parcel of real property is based upon some written instrument, even if it is a defective one, the person is said to have color of title. The title appears good but in reality, it is not.
Upland
Land above the mean high water mark and subject to private ownership.
Way
A passage, path, road or street; a passage right.
Vacate
1) To annul; to set aside; to cancel or rescind; to render an act void.
2) To put an end to; as, to vacate a street.
3) To move out; to make vacant or empty; to leave; especially, to surrender possession by removal; to cease from occupancy.
Article 78 Proceeding
A type of lawsuit that can be used to challenge decisions made by NY government agencies. Real property law, Article 78 of Civil practice laws & rules.
