Practical Location

[Ben Lund]

Here is where I have some confusion. Can we (as surveyors) use the unwritten forms of land transfer to establish boundaries or are we specifically limited to the different forms of evidence? In other words, could you state on your ROS, established by acquiescance, or agreement, or practical location?

Answer: "You should look at ALL of the evidence." This is not my question, and I don't know how to ask it intelligently.

Evan,
In your quote of my citation, could you replace the phrase "practical location" with "an unwritten agreement"? I'm not trying to argue a particular point, just trying to get clarification on my lack of understanding.

Thanks!

[E_Page]

No, if you replace "Practical Location" with "Unwritten Right", you also need to reverse the gist of the statement.

Evidence of unwritten rights contradict the intent of the writing in some way where practical location clarifies the intent. PC shows where the parties intended the line to be and does not benefit one party to the potential detriment of another. It is NOT a transfer of land.

[dmi]

I think I would say that Practical location IS intent. Sometimes the intent differs from the writings. In French V Brinkman, the intent of the grantor was to sell up to the wall whether or not it included all of the lot or not. The deed called for the entire lot and this is a different intent than the one expressed by the location of the wall...

A record of survey is just that a record, no rights are created by this document. When claims and/or occupation differ to a significant degree than the written record.... steps need to be taken.... each cas will require specific actions based upon the evidence.....

[enriquegill012]

I was not considering the deed to be void or voidable by a court. I was only considering a single course ,as being unqualified in terms of a bounds call, appearing on the face of the deed it in that sense alone in my opinion it had the potential to be a patent ambiguity.

[dmi]

Enriquegillo12, yes possibly........

[mpallamary]

Be cautious how you use and rely on Brown. He would be the first to suggest you check the cite and authority as to certain propositions. One of the problems with the most recent edition of Brown, i.e. Robillard's influences is that many of these propositions have NOT been vetted to reflect the current state of law. In fact, the most recent version states that Curt lived and worked in Sacramento when in reality, he is from San Diego. There are many things such as this that can be misleading. Be cautious!

http://www.clta.org/for-members/legal-d ... fence.html

http://www.amerisurv.com/content/view/11624/153/

http://www.amerisurv.com/content/view/14124/

http://www.amazon.com/The-Curt-Brown-Ch ... 1452090521

[Olin Edmundson]

.

[mpallamary]

Olin, that is the point I am trying to make. It is why I am such an advocate for continuing education. It is amazing how many surveyors have such an outdated and antiquated view of the law. The law changes as much as GPS technology.

[dmi]

French V Brinkman is not good law anymore? (practical location). The policy to settle land as quickly as possible has changed a long time ago. The policy now is that settle boundaries ought not be disrupted. This change in policy makes claims for AP almost impossible and that is as it ought to be.. What you see in many cases is that everything under the sun is argued.... a shotgun approach .... . and they failed because they did not meet ALL of the elements. Failing to meet the elements does not mean the principle is no longer available as a solution. Bryant v Blevins is very instructive with respect to the elements of agreed boundary. Where perspective easement case have failed in recent cases is that the users of the easement fenced them off and therefore excluded the fee owner access..... so it is all about the elements kids....

[mpallamary]

Agreed!

[Dave Karoly, PLS]

The Mark L. Share article is a good one, I've seen it before.

The Doctrines mentioned above are still California Law but the Calfornia Courts have tinkered with them. What is interesting is our Courts tinker a lot more than Courts in Midwestern States (their Doctrines never change, kind of like, okay folks once again the Law is blah blah blah etc.) Most of the tinkering has come in discussion of the circumstances in which they will consider the Doctrine to apply. For example, the Bryant Court stated that a fence alone is not enough to infer the agreement required for the Agreed Boundary Doctrine but that under circumstances described in their Ernie v. Trinity Lutheran Church decision the agreement can be inferred. Ernie involved an old Survey HINT HINT!

So running out the record line does not necessarily equal rolling out your tape at the exact Deed distance. The Courts, as has been affirmed in recent decisions, will consider all evidence to determine where the Deed is actually located on the ground. They don't view it as a black and white process; they view it as an art which requires good reasoning in most cases. As the Manual says, "No definite rule can be laid down." In fact, the Manual is a pretty good Boundary Surveying book, many of the principles can be applied more broadly than just Section corners.

The California Courts are generally liberal (not so much politically liberal as willing to apply rules less strictly and allow for numerous exceptions) except in the case of Bryant, there they suddenly became much more conservative in allowing application of the Agreed Boundary Doctrine. New York Attorney and Surveyor, Duane Frymire, who posts on the Surveyor Connect forum, has suggested that the increasing prevalence of equitable titles (e.g. Loans secured by Deed of Trust) may be inspiring some Courts to be less willing to allow establishment doctrines to move boundaries when the original location can be ascertained. I don't think that is a direct motivation but it could be R.E. Lawyers who become Appellate Justices are more apt to be legally conservative.

So if your magic box is telling you to jump over the fence or wall and march 50' into the neighbor's pasture to the corner, at least, stop and think, maybe the box is wrong. It could be right but at least be sure.

[mpallamary]

Well said Dave! Well said! Did I say well said!?