What controls when the call in a legal description states “…thence 200 feet to the south line of HWY 20…”? Does the 200 feet control OR the south line of HWY 20? What if the distance to the south line of HWY is 250 feet rather than 200 feet? Does the legal description go past the HWY by 50 feet? The answer is NO – the reference to the “south line of HWY 20” controls.
What controls when the call in a legal description states “…thence 200 feet to the south line of HWY 20…”? Does the 200 feet control OR the south line of HWY 20? What if the distance to the south line of HWY is 250 feet rather than 200 feet? Does the legal description go past the HWY by 50 feet? The answer is NO – the reference to the “south line of HWY 20” controls.
So what are the priorities of calls in legal descriptions? A recent Wisconsin Court of Appeals case addressed this issue citing the long held rule that the priority of call is:
- First, the natural monuments to which it refers;
- Second, the artificial monuments the surveyor places to mark the boundaries; and
- Third, the courses and distances marked on the plat or survey
Gilbert v. Geiger, 2008 WI App 29.
In the case the facts yet again involved lake property in Wisconsin. In the late 80’s and early 90’s the lake property was divided and sold. The deed for the southern property included a call which stated “…thence S89º50.9'W, parallel to the North line of the said SE ¼ of the SW ¼, a distance of 1115.06 feet to an iron pipe near the shore of Trude Lake…”. The deed for the northern property included a call which stated “…thence S89º50.9'W, parallel to the North line of said SE ¼ of the SW ¼, a distance of 1115.06 feet to an iron pipe near the shore of Trude Lake…”.
The problem – a resurvey of the southern property in 2003 revealed the shared boundary to be 1051.23 feet, in contrast to the 1115.06 feet per the two deeds, leaving the southern property with 45 feet less lake frontage. A pipe placed at the northwest corner 1115.06 feet from the northeast corner would have been in the lake.
The Court of Appeals concluded that there was a latent ambiguity in the deeds as even though the language of the deeds was clear (go 1115.06 feet) there was a problem with the call when attempting to fit the call onto the actual topography of the land (walk 1051 feet and then swim the rest of the way to the iron pipe?). The Court of Appeals then agreed with the circuit court’s decision to look outside the four corners of the deed, review the 2003 resurvey of the land, and determine that the iron pipe found by the surveyor in 2003, which resulted in a shared boundary of 1051.23 feet rather than 1115.06 feet, was the proper end point of the call.