Agreed Boundary Doctrine review January 2016

[Dave Karoly, PLS]

The cases I looked at all cite Bryant v. Blevins, 9 Cal 4th 47 (1994). There could be Agreed Boundary Doctrine cases that don't cite Bryant but I doubt it, however, this is California and stranger things have happened. Also these are cases which Westlaw offers up; there could have been unpublished cases that are not in the system particularly from the 1990s.

28 cases have reached Appellate Review since Bryant, 26 unpublished and 2 published.

24 affirmed. 4 Reversed.

7 have found the Agreed Boundary Doctrine applies, all are affirms. The Appellate Courts only reversed from Agreed Boundary to no Agreed Boundary. No Appellate Court has declared the court below should've held for the Agreed Boundary Doctrine since at least 1993. If it's going to happen it appears that it has to happen in the Trial Court first.

6 applied in San Diego County, 1 in Los Angeles and 1 in Marin.

My review indicates 23 are subjective uncertainty (could have been surveyed); 5 are objective uncertainty (multiple possible survey answers or old surveys conflict with modern understanding of where boundary is located). This is somewhat my subjective estimate of what each case is; other opinions could be different.

5 that the Agreed Boundary Doctrine was ruled to apply are subjective uncertainty, 1 is objective uncertainty.

The attached file has the breakdown. The "needs further review" column is a note to myself of a case that I skimmed, need to read it more carefully.

[Jim Frame]

Nice summary -- thanks, Dave!

[E_Page]

Very useful Dave. We had thought that subjective uncertainty was dead in CA. Your research shows differently. That's good news.

Have you seen the State Supreme Court case collections that Brian Portwood has done for several states? Excellent references for the surveyors in those states. You seem to be doing work along the same lines. I like your approach of pursuing the cases by issue and getting lower court opinions in the mix. Is this work toward that book you offhandedly mentioned in the other forum?

[Dave Karoly, PLS]

Yes, it all is towards that goal.

I tried to start writing then got lost. The Page-Stahl-Frymire commentary has been very useful. I went back through the Cal Jur 3d Boundary sections yesterday and made a bunch of notes which I probably won't be able to decipher later but it helped to get my thoughts in order.

I'm thinking along these lines.
Some preliminaries (what a boundary is, a little bit of evidence, a little bit of intentions).

Deed construction: these are rules we are very familiar with but often misapply after the boundaries are established. But the original surveyor of a Deed needs to understand the rules for interpreting deeds.

Original Boundaries: these rules are applied to Sections and Subdivisions but most early Deed descriptions did not include sufficient calls yet we can find their practical construction which is really just an original boundary but not always, simple right? Surveyors use this all the time when they, for example, use the section corner in an urban thoroughfare intersection which has no record connection to the original. 100s of Surveyors have used the monument and this is no time to go shifting a whole City block.

Established boundaries: Agreed Boundary Doctrine, Estoppel, Practical Location, and maybe Adverse Possession but I think that's out of the Land Surveyors capability (not due to lack of education, just a practical reality).
Cases.

The Survey texts I have read (except for maybe Skelton) arrange things in terms of Surveying concepts; subdivisions (simultaneous), and Deeds (sequential). I think a better plan is to look at it in order as above.

First, instructions on how to survey a Deed for the first time, or subdivide a Section according the Chapter 3 Rules; this is procedural. Except to say that I don't need to go into the technical details of how to subdivide a section or proportion a block, that is already amply covered elsewhere.

Second, If the Deed or subdivision has already hit the dirt and it is determined this is a retracement, not a new boundary, the rules focus on following in the footsteps and finding where the monument was originally set regardless if the rules in part 1 were violated at some time in the distant past.

Third, if the original boundary (or Deed constructed boundary if the boundary was never physically run) conflicts with established boundaries we look to whether one of the establishment doctrines applies. Establishment doctrines can also help to fix a boundary which was probably an original boundary but the connection to the original survey has been lost (Jeff Lucas refers to it as a chain of custody of the monument, often there is no chain of documentation back to the original). I think a Land Surveyor can recognize an established boundary in the case of objective uncertainty but subjective uncertainty it probably isn't a good idea to get involved (let the property owner fight that battle).

P.S. I don't see any reason to go back over ground covered by Brown, Clark, and so on. A Land Surveyor reading my book will need to have a foundation of knowledge in what a Subdivision is, Deed, etc. There's no reason to start from scratch on the basic concepts and Chuck Karayan's book is excellent for just a solid foundation of legal concepts, it should be in print.

[DWoolley]

Dave Karoly:

You're speaking of writing the book of Job in the context of land surveying literature. Selfishly, I hope you write it to be California specific and point out a few common differences to other states, namely Utah and Texas.

I am sure you know a book is quite an undertaking. You might consider publishing a guide initially - to get something in print. A guide would make available your research in the event a book isn't completed. This printed guide, possibly self-published, would allow for feedback, reevaluation and addition of material while you continue writing and researching for the book - an unsolicited idea.

A very exciting undertaking, best of luck.

DWoolley

[mpallamary]

The book sounds like a great idea! I have some unpublished cases that are interesting. I will see if I can find them.

[Dave Karoly, PLS]

I have one down there which was between a brother and sister. I got the Briefs...of course the lawyers focus on the fence. Haven't they ever heard of an original boundary? Meanwhile the surveyors are disturbing an original boundary that's been settled for over 30 years, crazy. They have the original monuments set in the early 60s but I guess the surveyor forgot to file the survey. The brother staked out what he wanted then the surveyor set the monuments and wrote the descriptions. But it's all "off" 30+ years later.

The family reunions must be something now.

[mpallamary]

Dave, I looked at your list. You have the unpublished case I was looking at. I also see that two of the cases you cited are mine. I testified and successfully advanced the doctrine of agreed boundaries in both of those. The Azar Palmer case was appealed and we got a favorable decision out of that one. It is attached hereto. I have a couple more cases in the hopper and they are making their way through court. I finished one the end of last year and the court ruled that we had an agreed boundary. Instead of a judgment, we stipulated a settlement.

[mpallamary]

This is from Prazma. This was interesting.

https://www.youtube.com/channel/UCspdGE ... aPlGgY2iGA

[Olin Edmundson]

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[E_Page]

Subjective uncertainty does not let landowners just randomly establish a boundary, and typically it has been held in the case of boundaries which were established far longer ago than 5 years.

The landowners had to have had a reasonable basis for placing it where they did. They would have had to have made a good faith attempt to interpret the description language and then to place the line according to that mutual interpretation to the best of their abilities, and then the parties agreeing to the line would have had to have accepted it for 5 or more years (though I haven't read any case where the establishment had been within that short of time prior to the dispute) as shown by their subsequent actions.

It's employed by the courts to leave settled that which has long been settled, not to enable people to just slap something down because they wanted to save the cost of a survey. I believe that there had been some limited exceptions to that in the more distant past where in very rural properties where the cost of a survey exceeded the value of the lands affected where the court granted a bit more leeway in what was considered a good faith effort to establish a boundary.

In the case of more recently established lines, the courts may have considered that the ability of the landowners to obtain a survey was not an unreasonable expectation in a good faith effort to properly establish a boundary. That turns it into an "objective uncertainty" case although the underlying rationale may have been that neither the availability of surveying services nor the cost of those services were considered a significant barrier to establish the boundary.

IMO, it wouldn't be right to now unsettle a long established boundary because a competent surveyor could determine the proper location according to the deed descriptions, even if at the time the line was established, either there was limited availability of surveyors, or the cost was exorbitant as compared to the property values and the landowners' ability to pay for them, and the landowners made a conscientious effort to establish the boundary according to the description.

[Olin Edmundson]

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[E_Page]

It doesn't really work that way. If a dispute does arise and it comes out "I didn't want to pay for a survey", the judge is likely to take that not as some reasonable barrier to having a professional mark it, but as a conscious decision to not make a good faith effort to have the boundary established correctly.

That good faith part is critical. Failing to have a survey performed simply because one didn't want to spend the money would undermine that requirement.

Under agreed boundary, the owners don't get to move the line from the correct location to an incorrect one. They are defining the boundary in the place that they believe it was intended to be established. Another critical part is that they were making the good faith effort to establish the line in the location the descriptions indicate it to be, not simply where it seems most convenient. If they reasonably could have obtained a survey but didn't, the argument for agreed boundary would likely fail.

The owners cannot use a boundary agreement to achieve a lot line adjustment.

[mpallamary]

Dave, would it be possible to add the citations? I just saw the Rose/Hedgecock case. I think I worked that one also. I think he is our former mayor.

[mpallamary]

It is the former mayor.

http://law.justia.com/cases/california/ ... 3/810.html

[Olin Edmundson]

Evan- It will be interesting to see what happens going forward. Whether the courts uphold this subjective uncertainty crazy-making or insist that a faithful attempt equals a survey. It's really hard to imagine cases where parties want to get a survey, but can't obtain a surveyor to perform one. From Dave's research, it looks like the vast majority of these agreed boundary cases are getting shot down, except in San Diego where there is a disproportionate number of attempts and success when compared with the rest of the state. I'm guessing this is Mr. Pallamary's handy work:)

[mpallamary]

Yes Olin, I have been quite successful in doing these cases and getting the correct results. In the Prazma case, I successfully argued that the doctrine had been satisfied by the actions of the parties back in the 1930s. It was a complex matter to re construct but I did it by examining the relationships between all the parties back then and essentially I demonstrated that although they were not guided by contemporary law as we know it, they satisfied the requirements by default and the court agreed. My initial report was 50 pages long with a detailed discussion on who everyone was, who loaned who money and who mapped what. I was also able to demonstrate the social relationship between everyone, in-laws and the like, on and on to tell the story.

As to the Azar-Palmer case, I successfully argued that we had the elements for an agreed boundary. Here's the kicker! The area in question was located in the right of way wherein the city and the neighbor asserted they had rights. There were four litigants. I proved that the street did not exist as the requisite elements for acceptance did not occur (the map was from 1887 and it was unimproved) and after doing that, I argued that the fencing that went out into the right of way and that encroached into the theoretical reversionary rights of the neighbor had been lost due to improvements and agreements going back to the 1960s.

After we knocked the city out of the case by proving they did not have a street (that was a shocker for them), we asserted the doctrine of agreed boundary that went well into the neighbor's underlying reversionary rights. To my knowledge that had never been done before. The neighbor argued all the way to the appellate courts where the court agreed with me as had the lower courts.

It is a very fascinating case and a real lesson maker.

As I said, I just perfected one the end of last year and we resolved that by a stipulated settlement. Everyone showed up for court and I made a presentation before the court and the judge told the other side that he agreed with me and, if they did not settle, it was going to cost them a lot of money as I had presented sufficient evidence to prove the case. When we are done and everything is settled and recorded, I can share that one.

What most people (surveyors) do not understand is the value of extrinsic evidence in proving these cases up. Most do a survey, they throw some stakes in the ground and move on. That activity represents 5% of the relative value of the work and the value of gathering and presenting proper evidence and bundling the case. Needles to say, this requires a comprehensive understanding of the law.

98% of the work I do and my involvement starts when the previous surveyor finishes putting marks on the ground.

A great place to start is in the beginning:

https://en.wikipedia.org/wiki/Penn%E2%8 ... ry_Dispute

[Dave Karoly, PLS]

Mike...I would be glad to add cases to the list. The case I have cited Bryant. I don't know how long it takes them to get into Westlaw.

Okay, I read the post again. Yes I can add the Westlaw citations. It'll be a few days before I can get to it.

[mpallamary]

I ordered the Hedgecock case from the court. They have to retrieve it. Once I get it, I will scan it and share.

I think this is a wonderful idea and if you put something together I should be able to get it covered nationally. Let me know if you want to prepare a magazine article.

Thank you for your devotion to the profession! You are an inspiration at many levels.

[Dave Karoly, PLS]

Dave Karoly:

You're speaking of writing the book of Job in the context of land surveying literature. Selfishly, I hope you write it to be California specific and point out a few common differences to other states, namely Utah and Texas.

I am sure you know a book is quite an undertaking. You might consider publishing a guide initially - to get something in print. A guide would make available your research in the event a book isn't completed. This printed guide, possibly self-published, would allow for feedback, reevaluation and addition of material while you continue writing and researching for the book - an unsolicited idea.

A very exciting undertaking, best of luck.

DWoolley

Yes, that is correct, California is unique. For better or worse, this is not Utah.

[mpallamary]

I have presented a full day seminar captioned "Lot Line Adjustments versus Lot Line Agreements - What's the difference and Who Cares?" Maybe we could do a joint presentation. The last time I did it it was standing room only!

[mpallamary]

Dave, let me know if you re interested. We should be able to raise some education money!

[Dave Karoly, PLS]

I ordered the Hedgecock case from the court. They have to retrieve it. Once I get it, I will scan it and share.

I think this is a wonderful idea and if you put something together I should be able to get it covered nationally. Let me know if you want to prepare a magazine article.

Thank you for your devotion to the profession! You are an inspiration at many levels.

It's like this...in a lot of the early cases the Courts ignored what the Surveyors did, for example, Young v. Blakeman (1908). It seems the surveyors mostly just measured, often ignoring senior rights (as I found out in Ernie v. Trinity Lutheran Church (1959). The recent trend is the Courts are relying heavily on what the Surveyor opines assuming Surveyors are boundary experts. If only one side gets a Surveyor and the other side's establishment or a.p. theory fails it can lead to bad results. In Bryant, Blevin's stipulated to the survey assuming, as lawyers often do, that the survey doesn't matter. This may have been true 100 or even 50 years ago but it isn't today. So if surveyors are expected to opine on boundaries they need to have the right training and information so they can properly assist the client's attorney and ultimately the Court. This is essential for the land surveying profession to remain relevant and not be "put down as a great calamity in the neighborhood." Cooley was far ahead of his time.

I was taught that surveyors survey the record title and show the encroachments and the mysterious unwritten rights is up to the courts. Unwritten rights is the establishment doctrines. Anyone can look them up and find out what it takes to meet the elements of a given doctrine. If the boundary is an original and agreed boundaries don't apply then we shouldn't be staking the deed. Stake the deed, ignore the original boundary and the client loses on the agreed boundary angle, this is bad. We need proper research, proper evidence gathering, and proper fact pattern analysis.

The subject fascinates me, it's like peering into a secret society's secret rules except it is all public information. I determined some years ago that I had to find out what I'm expected to know. Initially I studied the agreed boundary doctrine because I was interested in it and wanted to see how it works. We really need a reference, and no one else is doing it so I figure I'll give it a shot. I just plan to write it one piece at a time then put it out there. Eventually I'll have enough pieces for a book. Woolley has a good suggestion too.

[Dave Karoly, PLS]

I'm definitely interested. I hope there is a hunger for information.

[mpallamary]

Dave, I place little reliance on measurements and numbers based upon the rules of the court and the standing of a "court in equity." if there is a dispute there is a problem.

When I work in Mission Beach and high density areas, I ask the property owners where they think the boundary is and can they live with that line. I then work backwards. There are a lot of things going on that we, as professionals ought to recognize but we don't. In most cases, the conflicts start when the surveyor arrives.

Let's thing about this. There is a full day of material and I already have it canned and ready to go.