Prior Surveys as Extrinsic Evidence

By: Chris Blaze, PLS

I. Introduction

Extrinsic evidence should have the quality or function in proving and demonstrating

intent. It is essential to be certain with the intent of what is affording proof of evidence. A First Survey, not an original, might introduce ambiguity if physical monuments did not exist when the operative document was written. This type of evidence is only to be considered in the absence of explicit clarity. Many ancient documents were written with the goal of merely conveying Title and not showing boundaries to reflect ownership. Some old surveys and plans if not referenced (pre-standards) didn’t contain sufficient information, additionally the Judiciary dismissed this evidence in order to favor the title document. The admission of extrinsic evidence should only be applied in latent and not patent ambiguities to help with explanation of intent consistent with written title conveyance and proof of ownership. At completion of this research, the surveyors in Pennsylvania will have a better understanding of utilizing surveys while weighing the evidence and trying the facts. Before discussing the role of the surveyor, let’s review the brief list of statutes and rules associated with Extrinsic Evidence.

II. Statutory and Legal Foundations

Pennsylvania statutes and rules for extrinsic evidence include Rule 613 for prior inconsistent statements and Rule 901/902 for authentication. Additionally, the parole evidence rule (found in statutes like 13 Pa. C.S. § 2202) is a key principle that prevents extrinsic evidence from contradicting a written contract.

Rules of Evidence

1. Rule 613 (Witness's Prior Inconsistent Statement): This rule governs the use of extrinsic evidence of a witness's prior inconsistent statement to impeach their credibility. The rule generally requires that the witness be confronted with the statement during examination before extrinsic evidence of it can be introduced. This is intended to give the witness an opportunity to deny or explain the statement. (225 Pa. Code § 613 (2024).)

2. Rule 901 (Requirement of Authentication or Identification): This rule establishes the basic requirement that evidence must be authenticated before it can be admitted. Authentication can be achieved through various means, such as the testimony of a witness or by meeting the criteria for self-authentication. (225 Pa. Code § 901)

3. Rule 902 (Self-Authenticating Evidence): This rule list types of evidence that do not require extrinsic evidence of authenticity to be admitted, including: Official publications, newspapers, and periodicals Sealed and signed domestic public documents Certain certified business records electronic evidence, which can be authenticated through a certification rather than live testimony. (225 Pa. Code Rule 902 (2024))

III. Rules of Construction

A contract to convey land is void unless the contract, or some memorandum or note thereof, is put in writing and signed by the party to be charged therewith. The writing must contain a description of the land to be conveyed, certain in itself, or capable of being rendered certain by reference to an external source referred to therein. (House v. Stokes, 1984)

In regard to the elements required for the utilization of prior land surveys as extrinsic evidence:

1. The primary function of a court faced with a boundary dispute is to ascertain and effectuate the intentions of the parties at the time of the original subdivision. (Richardson v. MIABELLA PROPERTY HOLDINGS, LLC, 2023)

2. Extrinsic evidence may not be used to furnish the means or data by which the land to be conveyed may be identified.

3. The property description could be deemed insufficient because, despite the semblance of a metes-and-bounds description in the deed, if a surveyor could not identify the following tract of land. (AIC MANAGEMENT v. Crews, 2008)

4. The essential elements of a property description may not be supplied by such extrinsic evidence; the deed must furnish within itself or by reference to some other existing writing the means or data by which the land to be conveyed may be identified with reasonable certainty.

5. If maps produced recently could not locate the boundaries of the tract at the time of the conveyance, yet previous records are still in existence they could identify the tract, and the description would be sufficient.

6. Extrinsic evidence of the parties' intentions and the circumstances surrounding the conveyance may be used to clarify the terms of an ambiguous deed. (Flanagan v. Prudhomme, 1994)

Extrinsic Evidence is external evidence, or that which is not contained in the body of an

agreement, contract, and the like. Extrinsic evidence is evidence of matter not contained in the writings but offered to clear up an ambiguity found to exist when applying the description to the ground. When the terms of an instrument, deed, or will have been reduced to writing, they are to be considered as containing all those terms, and there can be, between the parties or their representatives or successors in interest, no evidence of the terms of the instrument other than the contents of the writing, with several exceptions. (Flanagan v. Prudhomme, 1994)

The question of ambiguity is one of law for the court.

1. A deed is patently ambiguous when the language in the deed does not provide sufficient information to adequately describe the conveyance without reference to extrinsic evidence.

2. A latent ambiguity exists when the language in the deed is clear, but the conveyance described can be applied to two different subjects or is rendered unclear by reference to another document. (Flanagan v. Prudhomme, 1994)

3. A description is patently ambiguous when it leaves the subject of the contract, the land, in a state of absolute uncertainty and refers to nothing extrinsic by which the land might be identified with certainty. Parol evidence is inadmissible and the contract in such a case is void. (House v. Stokes, 1984)

4. A contract, if through provision, incorporates by reference an external document by which identification of the land could be made certain; then this internal reference would render the contract latently, rather than patently ambiguous.

5. A description is latently ambiguous if it is insufficient, by itself, to identify the land, but refers to something external by which identification might be made. The reference must be to another document; if two documents refer to the same subject matter does not make them part of the same contract. (House v. Stokes, 1984)

6. A description could be found latently ambiguous, but had there been no reference to the survey, it would have been patently ambiguous; If the description was capable of being rendered certain by the survey to which it referred.

The trial court can find that the extrinsic evidence offered is inadmissible to cure the

inadequate description if the copies of documents were illegible and unauthenticated and

otherwise inadmissible. In the question of whether a description otherwise than by reference to the survey plats of the original public survey or to other recorded plats properly identifying the tracts or lots of land, can be aided by extrinsic evidence of facts which serve to connect the description with the particular tract, or lot sought to be charged. The description was, when aided by evidence, that the land has been surveyed, and is popularly known and designated thereby, sufficient to form the basis of a valid assessment and sale for levee taxes.

Role of the Surveyor:

Extrinsic evidence is also said to be evidence that is not legitimately before the tribunal in

which the determination is made. (American Society of Civil Engineers and the American

Congress on Surveying and Mapping, 1978) Prior surveys should be considered as part of the totality of evidence. That may cause admissibility problems, not relevancy problems. A re-survey not shown to have been based on the original survey is not conclusive in determining boundaries and will ordinarily yield to a re-survey based on known monuments and boundaries of the original survey. A map prepared by a private surveyor must be authenticated before it can be proffered in evidence, unless it is a permitted hearsay exception. Reference to an official plat will include all of the field notes and all of the instructions that created the plat. (Donald A. Wilson, 2021)

IV. Considerations

The court construed deeds to give effect to the parties' intentions and pay particular

attention to the grantor's intent “when discerning the meaning of the entire document.” And:

1. Will use the deed's language as a whole to determine the parties' intent.

2. When construing a deed, give meaning to every word if reasonably possible.

3. A deed is ambiguous if it is capable of two or more reasonable meanings.

4. Do not consider extrinsic evidence if the deed's plain language is unambiguous.

5. But if the deed is ambiguous, it may be considered extrinsic evidence to ascertain the parties' intent.

6. This evidence includes "the circumstances of the transaction" and the parties' subsequent conduct.

7. But extrinsic evidence cannot be used to "`vary, contradict or modify the written word.'"

8. Also, the deed can be construed against the grantor if the parties' intent remains in doubt.

9. Interpretation of a deed is a mixed question of fact and law."

10. The parties' intent "is a question of fact, and the legal effect of their intent is a question of law."

11. After a bench trial, the "review is limited to determining whether substantial evidence supports the [trial court's] findings and, if so, whether the findings support the conclusions of law."

12. Substantial evidence exists as "as long as a rational trier of fact could find the necessary facts were shown by a preponderance of the evidence."

For a survey to be considered as part of a conveyance, it must be called for by the

conveyance, or it must be identified by law as part of the conveyance proceedings. As an

exception, in a few states, surveys conducted shortly after the conveyance is created are

considered as contemporaneous with the conveyance. (Donald A. Wilson, 2021)

V. Conclusion

The lines and corners of the original survey control the location of a parcel. Lines are

presumed to have been established in accordance with accepted rules of survey and any

minimum standards in existence at the time the original lines were created. The evidence of

intent of any survey called for in a conveyance is to be interpreted from the map of the survey, the field notes of the survey, and the acts of the surveyor, not from the unwritten, unexpressed intent of the surveyor. A survey called for cannot be interpreted in light of any secret or hidden intentions of the creating surveyor. A surveyor can state what was intended about things they actually did, but not about intent. A statement by the surveyor that a certain found monument was the one that was set would have force, but a statement to refute writings would more than likely be rejected, since parole evidence is inferior to written evidence. (Wilson, 2014)

---

Bibliography

225 Pa. Code § 613 (2024). .

225 Pa. Code § 901.

225 Pa. Code Rule 902 (2024).

AIC MANAGEMENT v. Crews, 05-0270 (Supreme Court of Texas January 25, 2008).

American Society of Civil Engineers and the American Congress on Surveying and

Mapping. (1978). Definitions of Surveying and Associated Terms. American Society of Civil Engineers and the American Congress on Surveying and Mapping.

Anderson-Tully Co. v. Chicago Mill & Lumber Co., 13877 (United States Court of Appeals Eighth Circuit June 17, 1949).

Beres v. US, Court of Federal Claims, Nos. 03-785L, 04-1456L, 04-1459L, 04-1463L, 04- 1465L, 04-1467L, 04-1469L, 04-1471L, 04-1472L, 04-1473L (United States Court of Federal Claims April 16, 2019).

Donald A. Wilson, C. A. (2021). Evidence and Procedures for Boundary Location. Hoboken : John Wiley & Sons Inc.

ERBECK v. Springer, 72568-8-1 (Court of Appeals of Washington, Division One December 21, 2015).

Flanagan v. Prudhomme, 92-625 (Supreme Court of New Hampshire June 15, 1994).

House v. Stokes, 839SC180 (Court of Appeals of North Carolina February 21, 1984).

Miranda v. US SECURITY ASSOCIATES, INC., 18-CV-00734-LHK (United States District Court, N.D. California, San Jose Division May 2, 2019).

Richardson v. MIABELLA PROPERTY HOLDINGS, LLC, 1322 WDA 2022 (Superior Court of

Pennsylvania September 22, 2023).

US v. McCall, 07-51456 (United States Court of Appeals, Fifth Circut December 19, 2008).

Wilson, W. G. (2014). Brown's Boundary Control and Legal Principles. Hoboken : John Wiley & Sons, Inc.

Statutes:

- Rule 613 (Witness's Prior Inconsistent Statement):

- Rule 901 (Requirement of Authentication or Identification

- Rule 902 (Self-Authenticating Evidence)

Cases:

- US v. McCall (553 F. 3d 821 - Court of Appeals, 5th Circuit, 2008)

- Anderson-Tully Co. v. Chicago Mill & Lumber Co. (175 F. 2d 735 - Court of Appeals, 8th Circuit, 1949)

- Miranda v. US SECURITY ASSOCIATES, INC. (Dist. Court, ND California, 2019)

- AIC MANAGEMENT v. Crews, 246 SW 3d 640 - Tex: Supreme Court 2008

- Flanagan v. Prudhomme, 138 NH 561 - NH: Supreme Court 1994

- House v. Stokes, 311 SE 2d 671 - NC: Court of Appeals 1984

- DAYSTON, LLC v. Brooke, 630 SW 3d 220 - Tex: Court of Appeals, 11th Dist. 2020

- Anderson-Tully Co. v. Chicago Mill & Lumber Co., 175 F. 2d 735 - Court of Appeals, 8th Circuit 1949

- ERBECK v. Springer, Wash: Court of Appeals, 1st Div. 2015

Author Biography:

Chris is currently working on a Master of Science in Survey Engineering Technology Degree at the University of Maine. He holds a Graduate Certificate in Survey Engineering, a Bachelor of Science & Arts degree, and an Undergraduate Certificate/Minor in Cadastral Surveying.

Chris is a member in the Pennsylvania Land Surveyor Society and adjunct professor for the University of Akron. Chris spent the first 15 years of his career as a military surveyor in the United States Marine Corps and achieved the rank of Gunnery Sergeant; he instructed at the DOD Engineer Survey school for three years and held multiple other various billets and postings. He has formerly worked as Executive Director of Operations, Director and National Practice Lead for several survey firms and engineering consultants.

Currently Chris is a Survey Manager with Stantec for their Pennsylvania market overseeing surveys for land and infrastructure development through the state on projects of various sizes. His goal is to obtain a Doctorate degree in Survey Engineering and hang a shingle as a small-town surveyor. Mr. Blaze is a Professional Licensed Surveyor in Connecticut, Pennsylvania, and Rhode Island.

Copyright Notice

© 2025 Chris Blaze

All rights reserved. No portion of this document may be reproduced in any form without written permission from the author, except as permitted by U.S. copyright law. Citations take from referenced court cases may in fact be references themselves.

Abstract

This research will produce a manuscript serving as a resource for surveyors in Pennsylvania. It provides guidance on the governing laws, evidentiary standards, and professional responsibilities involved in utilizing prior surveys as extrinsic evidence while retracing property boundaries. The study examines how prior surveys are to be weighed as evidence while trying the facts of the location of the boundary to be ascertained.

Acknowledgements

I’d like to acknowledge and thank the Pennsylvania Society of Land Surveyors for allowing me to publish in their quarterly newsletter. This manuscript has been peered reviewed by fellow graduate students in the program and approved by the Professor.

---