Quote of the Day

[Steve Martin]

"The most basic rule, and the courts have been very consistent on this, is that it is the intent of the parties to the conveyance by which a parcel was created that is of primary importance, and all the other rules derive from this one. All of the other rules are fraught with exceptions, which speaks to the fact-dependent nature of boundaries. So it's impossible to create a cookbook set of rules, and obviously you can't just keep score on the number of times a court predicates the location of a boundary upon the existence or absence of one particular fact.

We've been instructed time and time again, that our job is to determine where the boundaries were actually established on the ground (or caused to be established on the ground) by the first parties who had a direct interest in those boundaries. If you find direct evidence of those locations, you have discovered how those parties intended to put their agreement into effect. If you cannot find direct evidence and must make inferences from indirect evidence, the only effective means of making accurate inferences is to discern the intent of those parties."

Nicely stated Evan.

The big issue is that many practicing surveyors think it is their job to lay out a deed upon the ground anew rather than look for where the boundaries were actually established upon the ground.

The Dykes v. Arnold case out of Oregon is well written and reasoned. A surveyor rejected an 1890's County Surveyor center 1/4 corner because he did what was a common shortcut, midway between two opposite 1/4 corners. The later surveyor did not look to previous reliance on that 1890's survey and ultimately lost the case.

I'll agree with Dave Karoly that Belle Terra Ranch v Wilson is instructive on how the courts look at boundaries. One quote I like is:

“No one disputed that the deed description was correct or tried to “add to, detract from, or vary the terms of a deed.” (Ibid.) Rather, the parties’ dispute revolved around locating on the ground the boundaries described in the deed. (See Bloxham, supra, 228 Cal.App.4th at pp. 737–738.) Both expert and nonexpert testimony is admissible to prove the location of “monuments, corners or lines as actually laid out on the ground by the official surveyor.” (Id. at p. 737.) Such testimony “is not accepted for the purpose of varying or contradicting the terms of the deed, but to aid the trial court in its difficult task
of translating the words of the deed into monuments on the surface of the earth . . . .” (Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 741.)"

Could the direct reference to Bloxham be the reason Belle Terra is partly not published?

Belle Terra Ranch has a clearer fact set I believe, even more so when you consider Walt Robillard was on the losing side in Bloxham.

[Dave Karoly, PLS]

Bloxham discusses original boundaries and the substantial evidence rule. In particular they discuss California's extreme aversion to declaring corners lost and proportioning. I don't see any discussion of the Parol Evidence Rule in there. I quickly skimmed the cross appeal section which seems to be about abuse of discretion in that the Trial Court denied the Bloxhams request for costs, the appellate court here refused to overturn the trial court because they say there was no abuse of discretion.

Someone really needs to write a real California boundary book incorporating all of these discussions, several people here have independently studied legal issues, I have personally read a lot of case law and have learned a lot. A good reference is attainable. If we could convince Surveyors to avoid setting multiple monuments for the same corner and to survey deeds by considering all of the facts and circumstances, it would help a lot.

I think the chapters might be:
1. Deeds
2. Parol Evidence Rule
3. Original Boundaries
4. Established Boundaries
a. Agreed Boundary Doctrine
b. Practical Location
5. Evidence
6. Easements
a. implied
b. Prescriptive
c. necessity
d. Expressed
7. Legal Concepts for Land Surveyors

[Olin Edmundson]

.

[E_Page]

That would be a very long list Olin.

I also like the idea of a CA specific Boundary Surveying Book. Seems like Dave stepped forward to volunteer as an author.

As to Bloxham, I don't recall that parol evidence was an issue, but it is a good one to point out that the surveyor should not reject evidence of established boundaries simply because that evidence was not placed by the original surveyor or because that evidence does not support preconceived notions that mathematical and measurement perfection was both intended and achieved on an original survey of long courses.


Dane, you are correct that boundary cases, and boundary surveys are wholly dependent upon the facts that exist for each individual case. I don't think that anyone said that the correct approach is to determine the legal principle and then find the facts to fit it. But if surveyors approach a boundary survey with the conscious goal of discerning what the intent of the original parties was based upon evidence that showed how they put their agreement to effect, I believe there would be far fewer boundary disputes than there are.

Cases like Bloxham and Belle Terra remind us, although there are plenty of published cases that have said the same in the past, that where direct evidence of the intent of the original parties, evidence which has been placed in reasonable reliance on that established boundary location can and often does serve as acceptable evidence of the original locations of those boundaries.

Start with the purpose of discerning intent (not "deciding" for the original parties what their intent should have been, or "divining" that intent by unverified evidence which has not been verified to have any relation to the original establishment). You discern or determine what the intent was based upon evidence, so you determine as many facts as possible or as many as needed to be clearly convinced of the correct original locations (or as close to clear and convincing as all available evidence affords), and then, as you stated, the facts will indicate what boundary principle applies in order to enable that original intent to continue.

There are times when the original parties may not have expressed their intent by establishing lines and points on the ground and subsequent parties in immediate interest (the affected landowners) establish the boundaries. Or where the original description of a boundary imperfectly describes the boundary placed on the ground by the parties to that conveyance. In such cases, principles such as practical location or agreed boundary may come into play. Either way, the court is still seeking first to determine the location intended by the original parties as the actual boundary location. Where the line was not clearly established at the time of first conveyance, subsequent acts of the parties, and sometimes successor parties, are considered reliable indicators of the true intent.

Even where one party invokes a claim by AP, the court must first seek out the intended location of the boundary, which can only be determined by examining and weighing the facts, before it can address the validity of title by possession having overcome written title for the disputed portion and the facts supporting that title claim and location of the boundary established by possession.

A boundary survey is an investigation of the physical manifestation of the locations of boundaries as intended by the parties who first created those boundaries. The court looks for intent. It's our job to find evidence of that. To do that most effectively, we can't ask only "where?", but need to ask "who?", "how?", and often "when?", and sometimes "why here?" when we expect to find it in one location but find evidence indicating it's at a different location. If we find and effectively report the answers to all of those questions, we decrease the likelihood of a boundary going to court, and if it does go to court, we more effectively fulfill our role as an expert witness by helping the court recognize the relevant facts (while also recognizing those which are not relevant) and the significance of those facts for leading one to discover the original boundary locations. Finding those, and having enough evidence to comfortably prove the locations, makes it easier for the court to determine the intent of the original parties. Cases become difficult for the courts where the available evidence is thin, or as is probably more often the case, where the evidence located and provided by the "experts" is thin even if more had been reasonably obtainable.

Oops! I'm rambling. Break is over, back to work.

[steffan]

I personally watched portions of bloxham in court and am familiar w/ the surveys. It was an absolute joke that the case even went to trial, really an embarrassment to the profession and cost the Bloxhams 123k. The losing surveyor questionably claimed to have established the end points of the 7 mile line and called EVERYTHING off in between to the tune of 16+/- feet by memory . It was a landslide in terms of weight of evidence. I haven't read a lot of case law but there didn't seem to be much new mentioned. It was basic common sense. The only thing noteworthy was the court confirming that angle points could be introduced in a line straight by record (though very slight in this case). A point Robillard acknowledged.

A book on ca boundary law would be great. I am also curious on how one goes about finding a list of cases relating to boundary law in ca. Does anyone have one they could provide?

Olin,
In the members only section of the CLSA website there is a listing of cases and their documents. However it has not been updated in a long time and there are a significant number of cases that should be added in the near future.

[Olin Edmundson]

.

[Dave Karoly, PLS]

Olin, there is a number of ways to do legal research. The Sacramento County Public Law Library has been very helpful; they offer classes in legal research.

There are different types of authorities. The State and U.S. Constitution, Statute Law, and Case Law (Common Law) are primary sources or authorities. Legal Encyclopedias, Summaries or Restatements of Law, and Treatises are secondary sources or authorities. An Encyclopedia (such as American Jurisprudence, California Jurisprudence, and Corpus Juris Secondum or CJS) has brief articles about pretty much the entire law. A Treatise is a more comprehensive work which is limited to one subject, an example is Miller & Starr California Real Estate. If you look up Boundaries, they will have discussion and lots of case citations. Also it is useful to look up Deeds.

Another way to find case citations is from other cases. Read the cases they cite. I have also taken a case and gotten all the cases that it cites and all the cases that cite it. This can be done on the computer subscription service that you can use for free at the law library.

It also helps to know the various doctrines, original boundaries, agreed boundaries, practical location, and boundary by estoppel.

All published California cases are available for free through a Lexis service paid for by the California Courts:
http://www.lexisnexis.com/clients/CACourts/

Google Scholar is very useful for finding cases:
https://scholar.google.com/?hl=en

The Courts want us to read their opinions, it's not just for Lawyers.

[Olin Edmundson]

.

[Dave Karoly, PLS]

I was in Jed's cubicle today when I noticed a pair of letter sized books, typewritten pages bound by a local printer. So I pull them down...

They are:

"The Law of Real Property and Boundaries" by Chuck Karayan

I had no idea this existed. It's very good. I haven't got to the boundary part yet but it reads pretty fast (single sided, double spaced). He goes into negligence, professionalism, how the courts work, starting from the beginning. One thing I notice which is typical of the survey texts, the cites tend to be very old. I think material can be supported, in some cases, by newer cites. Also there are trends in more recent rulings, such as more exceptions to general rules and in some cases the courts are less rigidly technical particularly in boundary.

My idea is a book that is more limited in scope, a practical boundary law manual which is more grounded in recent common law. But first I'm looking forward to reading Chuck's boundary sections.

[E_Page]

Chuck's book, part of a short series of his Initial Point Seminars (I believe he had similar publications for OR and WA, if I recall correctly), was published around 1980 or 1981. I've used my copy as a reference several times.

[Dave Karoly, PLS]

The copy I borrowed from Jed is copyrighted October 10, 1982 and June 1, 2002.

It's marked SPECIAL EDITION in red on the front. It's two books with Chapters I to X.

Inside it's marked COURSE MANUAL.

[Steve Martin]

¶ 22 Although the descriptions in the deeds are unambiguous on their face, the real estate described cannot be located on the ground because, as the circuit court explained, "the corner of Sections 4,[7] 5, 8, and 9 cannot be located." Thus it is not possible using the deed descriptions and nothing more to locate on the ground the southwest one-fourth of the northwest one-fourth of Section 9 and the southeast quarter of the northeast quarter of Section 8.[8]

¶ 23 The circuit court therefore looked to extrinsic evidence to determine the boundary line and concluded that "the best evidence available are the lines of occupation and possession" and that the landowners and the County have used the center line of Henn Road as the boundary line between the properties at issue for "almost all of the twentieth century and up until the year 2005." Accordingly, the circuit court concluded that "t is the judgment of this court that a longstanding common usage and acquiescence to ownership and possession to real estate has occurred in the area of the Henn Road in Ashland County near the common sections of 4, 5, 8, and 9[and][t]he centerline of the existing Henn Road is determined to be the boundary line between the property owners in this case." For the reasons set forth, we agree with the circuit court's determination of the location of the boundary 724*724 line at issue based on the evidence in this case, not based on the legal doctrine of acquiescence.

Northrop v. Opperman 795 NW 2d 719 Wis: Supreme Court 2011

P.S. I asked Chuck Karyan for a copy of "the Law of Real Property and Boundaries". He said that was from over 30 years ago when he was on the national seminar circuit and did not have any copies available. But he did say that when he gets a break from preparing an online course, he intends to update that work.

[Steve Martin]

"Physical evidence at a property corner that has a reliance by the adjoiners for this long of a period of time and a traceable lineage as a survey monument must prevail, otherwise property lines would up and move every time someone got a new measurement tool."

-Polaris - from the "Which mon to use?" thread.
Very quotable!

[dewardkb]

http://www.pobonline.com/articles/97536 ... a-monument

“There seems to be a growing practice in the profession of indiscriminately yielding to uncalled-for monuments that happen to be in the general vicinity of the presumed corner location. In some cases, the deed calls for, either directly or indirectly, original monuments of a different type. In other cases the deed calls for no monuments whatsoever — the description is pure metes with only dimensions given. Yielding to an uncalled-for monument without predetermined justification may lead to embarrassment in court.” 1

1) ACSM Bulletin “Law and Ethics” section: “Uncalled-For Monuments” by David R. Knowles.

Haklits v. Oldenburg: 124 Vt. 199; 201 A.2d 690; 1964
Bugg v. Fancher: 2007-Ohio-2019
Millyard v. Faus: 268 Cal. App. 2d 76; 73 Cal. Rptr. 697; 1968
Kesinger v. Logan: 113 Wn.2d 320; 779 P.2d 263; 1989
Proctor v. Hinkley: 462 A.2d 465; 1983 Me.

[Steve Martin]

From Mr. Kline's article:

"Several rulings from across the country note that monuments set by original parties to a conveyance are significant because they represent the true intent of the parties. Determining intent is the paramount responsibility of the courts and all other rules of construction ultimately exist for the sole purpose of clarifying the intent of the parties."

The article does brush upon original monuments. Also, I do agree with the court and the Surveyors who said a monument that has been moved does not control.

Mr. Kline appears to be advising caution and to look at all of the evidence.

He does not really get into establishment upon the ground by the parties to the deed and acquiescence to the line so established for a long period of time, but of course, he was writing a short column, conveying a single idea, and not encompassing the entire set of principles that go into retracing established boundaries, that would take a large book to cover.

[Dave Karoly, PLS]

The "indiscriminate" comment sets up a straw man argument which is a surveyor who disagrees with me is practicing indiscriminately which is not necessarily the case.

[E_Page]

I would agree with Mr. Elgin if his statement were slightly different:

“There seems to be a growing practice in the profession of indiscriminately yielding to, or indiscriminately rejecting uncalled-for monuments that happen to be in the general vicinity of the presumed corner location."

Indiscriminate surveying, whether by carelessly accepting monuments as controlling that shouldn't be, or by not carefully considering existing, uncalled for monuments and other forms of extrinsic evidence before resorting to simply following the dimensions, usually derived either from measurements or from records of unknown origin.

The courts have instructed us to not give controlling effect to objects or elements not mentioned in deeds without having a reasonable basis for believing that those objects or elements indicate the original boundary corner or line locations. Many surveyors stopped their understanding with the first half of the preceding sentence. By being selective in the cases one reads, or even more selective by looking at just portions of some cases, one could reasonably draw the conclusion that we are never to give any credence to any object or element that is not expressly called for in the deed description.

But if you're going to cherry pick the cases or the parts of case discussion that supports only your previously held belief, then you are not practicing surveying as an unbiased professional that the surveyor is charged with being, but instead are behaving as an advocate, like the attorney that doesn't really care what the true state of the law is but is concerned only with successfully arguing his position, whether it represents the truth, promotes justice, or not.

Figuring out what the law says about the use of extrinsic evidence, be it uncalled monuments, fences, ties shown in unfiled field notes, or whatever, is not a matter of keeping score of the cases that seem to promote or prohibit the use of extrinsic evidence. Nor is it a matter of keeping track of just the most recent ruling in one's jurisdiction ([sarcasm]the last case said use uncalled mons, so we need to do that until the next case comes out that says we can ignore them again[/sarcasm]). If we are to be the professional boundary experts that the public and the courts expect us to be, we need to look at cases that appear to contradict each other on brief review and then determine who the seemingly contradictory rulings can both be correct under the same system of laws and legal principles.

Generally, that means more and broader study of the law than most of us have been doing, and it means a more thorough gathering and analysis of available facts than a great many of us have been used to.

All jurisdictions in the US have solid precedent that the intent of the original parties (or in some instances, the intent of the original grantor) is the main consideration when establishing or re-establishing a boundary, and that where there was an original survey, that following the footsteps of that original surveyor is the best and most acceptable way of finding that intent. Many, if not most jurisdictions now have case law that clearly states that extrinsic evidence may or must be considered to determine if a description that is otherwise apparently clear and unambiguous is reasonably susceptible to more than one interpretation. Both OR and CA have such case law. I wouldn't be at all surprised if TX did as well.

There are very, very few absolutes in boundary surveying, but a couple that come close are 1) A perfect and completely unambiguous description has never been written, and 2) Extrinsic evidence should be considered almost any time a boundary is being re-established.

I used to say that there are no absolutes in boundary surveying, but I've come to realize that there is at least one: Any description of land based upon dimensions alone is inherently ambiguous. If the boundary had been previously established, it requires interpretation as to where the original surveyor made his measurements to. It is highly unlikely that the actual locations of the lines & corners, as reported in the dimensions in the deed recited to represent his measurements are in the same locations that you or I would arrive at if merely following the dimensions.

Even if the boundary described by dimension alone had never been placed on the ground before, we would need to determine how the original parties arrived at the dimensions used in the description, which records were referred to when preparing the description but not mentioned in it, what assumptions were made relative to those records. And if the grantor and the grantee each hired their own surveyor and each surveyor purported to precisely follow the deed dimensions, the corner locations would be likely to differ by some amount. Hopefully, if the surveyors each used good modern equipment and reasonable care, those differences would be quite small, but they would exist. While dimensions in the deed are not extrinsic, the measurements to place them on the ground are.

[Dave Karoly, PLS]

The way I look at it is, a layperson that has a Deed in their hands and doesn't know where their boundaries are located needs an expert who has the knowledge, experience, and training to properly determine that for them. In our system, they can turn to a Licensed Professional who presumably meets a minimum standard of qualifications and can competently locate their boundaries for them. It is an act of good faith to have a Survey made so that the client can locate themselves within their own ownership. It is distinctly wrong and unfair to punish the public when a duly Licensed Professional did not do the job correctly but this is what a lot of the Profession wants to do. That Surveyor 20 years ago did it wrong, oops, now your concrete walkway, rectory building, and fence are encroaching. The Courts have shown little patience with this sort of behavior on the part of Surveyors. If the surgeon kills the wife we don't take the husband out and kill him too. In the case of other professions often the damage appears relatively soon so it's easier to connect the professional to the blunder. In land surveying it can be decades and the errant surveyor may no longer be available for discipline (or a damage award in civil court) but that doesn't excuse "taking the husband out and killing him too."

If a resurvey is being followed and the resurvey made no reasonable attempt to connect to the original survey then the monuments set on the resurvey may be open to being rejected. If nothing is known about the found monument other than it exists then that may reduce it's usefulness as a monument. It is a continuum and there are no black and white answers, or at least rarely it is a black and white question. The sticky part comes in when property owners have placed decades of good faith reliance on those monuments (they aren't experts and don't have the equipment and training to find out those pipes are off). If the monuments were not visible and never used then they probably can be disregarded particularly if their original counterparts exist nearby.

I have read a lot of cases; the most common line of inquiry is what did the original parties do, know, agree to, and establish. Very little concern is given to what the Surveyors did unless their work is recent and still open to debate. That is the big question; did the owners agree to this and is the Survey recent enough to be disregarded.

[Steve Martin]

The man who views the world at 50 the same as he did at 20 has wasted 30 years of his life

Service to others is the rent you pay for your room here on earth

My principles are more important than money or my title

- Muhammad Ali

[dewardkb]

“I ain’t draft dodging. I ain’t burning no flag. I ain’t running to Canada. I’m staying right here. You want to send me to jail? Fine, you go right ahead. I’ve been in jail for 400 years. I could be there for 4 or 5 more, but I ain’t going no 10,000 miles to help murder and kill other poor people. If I want to die, I’ll die right here, right now, fightin’ you, if I want to die. You my enemy, not no Chinese, no Vietcong, no Japanese. You my opposer when I want freedom. You my opposer when I want justice. You my opposer when I want equality. Want me to go somewhere and fight for you? You won’t even stand up for me right here in America, for my rights and my religious beliefs. You won’t even stand up for my rights here at home.”

Muhammad Ali

[Peter Ehlert]

he was wiser than he appeared

[Mr. Smith]

I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve


TORA TORA TORA

[Steve Martin]

Once a boundary has been marked by monuments and accepted by those with authority to locate
the boundaries, the property owners, the task of the Boundary Surveyor is retracement. The rules
limiting extrinsic evidence when the Deed is unambiguous primarily apply to the nature and quality
of the estate transferred, that is title questions.20 On the other hand, extrinsic evidence is
generally admissible in boundary dispute cases.21 Direct, circumstantial, and secondary evidence is
admissible in California to prove the locations of the original monuments.22

20 3 Miller & Starr Cal. Real Est. §8:2 (4th ed.) and cases cited therein.
21 3 Miller & Starr Cal. Real Est. §8:2 (4th ed.): “Comment: The courts do not always make the
distinction explicit, but as a general rule, evidence extrinsic to the deed is more readily
admitted in the construction of a legal description of the property conveyed than it is in the
construction of the quality, extent or duration of the estate granted.”
22 Bloxham v. Saldinger, 228 Cal.App.4th 729, 745 (2014): “ ‘Lines actually run and marked on the
ground may be proved by any evidence, direct or circumstantial, competent to prove any other
disputed fact, and where markers of the original survey have been destroyed, secondary evidence as
to the authenticity of their relocation is admissible.’ California recognizes these rules to be
sound.” (Chandler v. Hibberd, supra, 165 Cal.App.2d at p. 55, 332 P.2d 133.) The Saldingers have
not provided legal authority establishing that a monument “called to be on the Rancho line by
common report” of a number of documents could not be considered by surveyor Jensen in locating
the Rancho line established by the original survey.”

David B. Karoly - "The Role of Land Surveyors in Society" 2016

[RAM]

"We Love Kids, but PLEASA keep yours at your table! Unattended Kids will be given a shot of Espresso and a free Puppy"

Author unkown

[Steve Martin]

"There's zero correlation between being the best talker and having the best ideas" - Susan Cain