The "Best" Available Evidence

[LS_8750]

Forty-five year old fence lines - or - one hundred year old fence posts.

Ugh.

The story: These are country parcels, mapped in about 1911 and originally about 6-7 acres apiece, since cut into smaller pieces ranging from original dimensions down to about two acres - all by deed. No monuments called for in these later deeds found. All calls fall within concrete footing of galvanized iron or angle iron fence posts.

Front, or street, corners are fixed fairly reasonably based on calculated position of old fence posts and iron pipes now gone, locations re-established using newer monuments set based on these older monuments now gone. Front corners and dimensions agree with hundred year old plus map within a few tenths in 450 feet. Feeling pretty good.

Side parcel lines go back about 690-700 feet to the back line, being an ancient rancho subdivision line. Fence lines are these older t-post & barbed wire types tight as guitar strings, indeed nice to look at. Every time I get to a search point it falls within the concrete footing of these old galvanized steel or angle iron fence posts. But, at the back corners I find two old 6x8 fence posts (we are near an old railroad yard) just under two feet west of the north south fence lines and newer fence corners. These old fence posts are locally common during this era based on my limited experience here in Sonoma County - some surveyors tend to hold them and some seem to completely disregard them. You can see generations of barbed wire still wrapped around these posts then cut off and replaced and cut off and replaced again, etc.

It appears to me that a later surveyor may have come along and disregarded these old fence posts out back and set something to guide these newer 45 year old fence lines.

Either way you look at it you see a pattern. Follow the 45 year old fence lines and distances seem reasonable. Follow the posts and you get the same result. But, of course on one line the fence post matches record bearing near perfectly, but on the other side line the post is off record bearing and the fence line matches record bearing. I know this. We have at least two generations of fences, the older one is nearly lost - but not quite.

I'm a Libra. This is doing my head in. I can't hold one fence line and call the other off, and I can't hold one post and call the other off.

I guess I shouldn't worry too much. Some fairly local surveyors would call off the fences and the posts and set pipes four feet away from both - just like they did on my next job.

Just thought I would share for fun. I did not cut my teeth on these country type surveys and have had to do some catching up.

You don't often encounter these types of quagmires in engineering.

Cheers.

[Olin Edmundson]

.

[LS_8750]

Good stuff Olin.

But I would suggest we surveyors be careful with the boundary line agreement (Mr. Lucas seemed to have advocated it a bit much for me in his Pincushion Effect). Every pincushion corner could be viewed as "uncertainty", thus leading to the boundary line agreement. Who then would need surveyors?

I've seen it happen in Sonoma County, an esteemed local surveyor did an excellent job uncovering monuments and determined without a doubt where the lines were located as originally established. This survey followed a slightly earlier survey that just punched pipes in the ground based on math, which as off by about 5 feet or so. The owners ended up with a court imposed boundary line agreement. The excellent survey, which cleared contained the preponderance of evidence thus re-establishing the lines in their original location ended up being wiped out. To me there was no "uncertainty" and the court screwed up. It was a sham, and somebody got screwed.

[E_Page]

Your analysis of how the newer fence came to be placed to miss the old posts seems pretty reasonable. If the old posts mark the original locations of the back corners, then that's what the deeds refer to and the newer fence would be a very strong basis for a claim under an unwritten transfer doctrine (AP, acquiescence).

Have you spoken to any of the long-established surveyors in the area as to the significance of the old posts? If the posts are not called for in this or an older deed of the property, are not already monuments of common report, or are not so common in the vicinity so as to be recognizable as survey monuments customary to the area and the time period in which the lines were established, then they are little more than old wood fence posts that, because of the consistency of their relationships to the nearby ends of the newer fences, appear that they may have been set by some previous party to mark the original corners.

It sounds to me that you've got enough evidence to suspect that the wood posts may be the original corners, but nothing more than that. It seems to me that's enough that you need to make some inquiries of someone who knows the area and its survey history before making your decision.

[LS_8750]

Thank you Mr. Page.

It is what it is. Even a call to an "iron pipe set at the lot corner" would not hold - if that iron pipe is gone. These are fence posts set on an old rancho subdivision line.

Why would I care about any subsequently set , after 50 years, iron pipes (which are gone) that may have been set a foot or so from the fence posts during later subdivisions. Garbage.

I have a hundred year old fence post that reasonably fits bearing and distance to the record corner. By reasonably, I mean a couple of tenths.

It is just amazing sometimes when you really look at something how it actually fits and works, even though you as the surveyor have nothing to work from.

I can't find anything because the stupid old fence post is in the way. "There's your sign."

[Warren Smith]

Clark,

It's done that way here in San Joaquin County, and has for a century. How on earth else (pun intended) would someone with a quarter section know where to start turning his plow?

[Steve Martin]

A pipe or a fencepost can be physically "gone", however if competent survey evidence of the former location of said pipe or fence post can be found, then it is only obliterated, and it can still control.

[dmi]

I THINK YOU NEED MORE EVIDENCE. We are talking about fence line evidence here and fence lines by themselves represent a thin basis for adoption of a location as a boundary. Some of the questions to consider are
Who built the fence?
Why did they build the fence?
Do you have letters, receipts or other ephemera that might answers questions?
Was the fence built based upon reliance of a survey?
Was the fence built so that each end began and ended at a monument?
Talk to the land owners and find out if they know how the fences came to be.

[Steve Martin]

Dane brings up good points about fencelines. Many times fencelines are placed at convenient locations without knowledge of where the actual boundary is located.

I was reading Jeff Lucas's latest article yesterday and he has some good things to say. I'll copy one of his citations as I think it is appropriate here. It is also very pertinent to a case I have been involved with:


Summing this up very nicely while touching on a few other important principles is the Supreme Judicial Court of Maine in the 1991 case of Theriault v. Murray:

"We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained."

[David Kendall]

Supreme Judicial Court of Maine in the 1991 case of Theriault v. Murray:

"We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction. A basic rule is that boundaries are controlled, in descending priority, by monuments, courses, distances, and quantity, unless this priority produces absurd results. The physical disappearance of a monument does not end its use in defining a boundary if its former location can be ascertained."

I've just printed this excerpt and posted on my wall next to my desk. Thank you!

We have Jeff Lucas speaking tomorrow at our local seminar. I am expecting it to be super enlightening!!

[dedkad]

In California the rules are governed by Section 2077 in the California Code of Procedures:

1. Monuments
2. Lines
3. Angles
4. Area
etc.

[David Kendall]

In California the rules are governed by Section 2077 in the California Code of Procedures:

1. Monuments
2. Lines
3. Angles
4. Area
etc.

Mine says lines, angles or surfaces (after monuments). I find all three of these terms ambiguous. I will assume that the CA priority of deed calls is:
1) natural or artificial monuments
2) distance
3) direction (bearing or azimuth)
4) area
Is there a more explicit legal definition of these terms? In my mind a "line" would be a vector indicating that it has a direction and magnitude associated with it. I don't really know what I would do with an "angle" or "surface" in a deed if I ever saw one...

[Warren Smith]

This is an old provision in the statutes. It comes into play when evaluating evidence in a civil action pertaining to doubtful construction of the descriptive part of a conveyance of real property.

Code of Civil Procedure - CCP

PART 4. MISCELLANEOUS PROVISIONS [1855 - 2107] ( Heading of Part 4 amended by Stats. 1965, Ch. 299. )
TITLE 6. OF EVIDENCE IN PARTICULAR CASES, AND MISCELLANEOUS AND GENERAL PROVISIONS [2074 - 2094] ( Title 6 enacted 1872. )
CHAPTER 1. Evidence in Particular Cases [2074 - [2077.]] ( Chapter 1 enacted 1872. )

[2077.]

Section Two Thousand and Seventy-seven. The following are the rules for construing the descriptive part of a conveyance of real property, when the construction is doubtful and there are no other sufficient circumstances to determine it:

One—Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false, does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.

Two—When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount.

Three—Between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both.

Four—When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.

Five—When tide water is the boundary, the rights of the grantor to ordinary high-water mark are included in the conveyance. When a navigable lake, where there is no tide, is the boundary, the rights of the grantor to low-water mark are included in the conveyance.

Six—When the description refers to a map, and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars.
(Amended by Code Amendments 1873-74, Ch. 383.)

Essentially, this is bearings above area, distances above bearings, and monuments above all.

[Steve Martin]

Lee Hixson suggested that this additional quote from Jeff Lucas is also very instructional, and applicable to the case I am involved with:

Next, let’s consider the case of Northrop v. Opperman, for a discussion of best available evidence in the boundary retracement context. Keep in mind these are factual issues, not legal.

The answer to the pertinent question — where is the boundary line? — must be established by the best evidence available. Monuments set by the original survey in the ground, and named or referred to in the plat, are the highest and best evidence. If there are no such monuments, then stakes set by the surveyor or soon thereafter are the next best evidence. Buildings, fences, and other substantial improvements built according to the stakes laid out while they were present are the next best evidence of the line. The time will soon come when [the boundary line] will have been lost by the destruction of all monuments, natural or artificial, and by the death of the old inhabitants. Then resort must be had to evidence of lesser degree to establish ancient boundaries, and long-continued occupation with respect to unchanged lines, and reputation, even, may be the best evidence available. The circuit court’s determination of the best evidence locating the boundary line in the survey/fence cases is essentially a finding of fact.

[Lee Hixson]

For the entire quoted article, go here:

http://www.pobonline.com/articles/97710 ... -the-facts

[LS_8750]

....."stakes set by the surveyor or soon thereafter are the next best evidence."

Interesting placement of the word "or." As if to mean stakes not set by the surveyor, but perhaps set by layman fence builders following the surveyor's recent placement of original monuments or stakes.

[David Kendall]

I tend to agree with Lucas on that. If the landowner constructs an improvement and the neighbors accept the location (consider your adverse possession criteria - open, hostile, period of time, etc.) then in my opinion that is the boundary, absent better evidence (i.e. original monuments) to the contrary.

[mpallamary]

Cooley:

http://www.amerisurv.com/PDF/TheAmerica ... ep2015.pdf

[dmi]

The problem with the Lucas argument is that it does not carefully consider the law, IN THE STATE OF CALIFORNIA. The California Supreme court case Bryant V Blevins is fairly clear. The policy statement that comes out of the case is that owners SHOULD BE ABLE TO RELY UPON THEIR DEEDS.
I am not convinced that a surveyor is allowed to determine a boundary by adverse possession. All the elements have to be present and it is a determination reserved for a court.Repose and acquiescence are other principles, that I would consider over AP, but again it takes more than a surveyor's opinion to perfect a boundary under these principles. And again one would run afoul of B V B.

[David Kendall]

The problem with the Lucas argument is that it does not carefully consider the law, IN THE STATE OF CALIFORNIA. The California Supreme court case Bryant V Blevins is fairly clear. The policy statement that comes out of the case is that owners SHOULD BE ABLE TO RELY UPON THEIR DEEDS.
I am not convinced that a surveyor is allowed to determine a boundary by adverse possession. All the elements have to be present and it is a determination reserved for a court.Repose and acquiescence are other principles, that I would consider over AP, but again it takes more than a surveyor's opinion to perfect a boundary under these principles. And again one would run afoul of B V B.

What I took out of Lucas' seminar was that as professionals we ought to take a more diplomatic approach to every situation and when we encounter a potential conflict make appropriate suggestions (such as boundary correction or LLA to resolve disagreements by stipulation) or explain options to all affected parties with an attitude of resolution of any reasonable dispute. I don't think a surveyor has discretion to adjudicate an adverse possession claim either but I reckon I ought to be pretty clear on when it might be a factor to consider and investigate further.

As opposed to an attitude of 'I'm recording a map and staking a line and sending a bill and saying "Hey, that's where the DEED line is, sorry about that other half of your 150 year old house that is on the wrong side of it, good luck!" and heading off into the sunset with a clear conscience.'

Regardless of anything said in Bryant v Blevins, that is the kind of service I feel morally obligated to provide to our clients and I will happily lose money doing that 100 times over if necessary. The other "easy" jobs will make up for it I'm sure.

[dmi]

Sorry if my comment was not diplomatic. I agree with you that the surveyor needs to be able to recognize WHERE THE BOUNDARY IS IN FACT ESTABLISHED ON THE GROUND, in connection with where the written record indicates that the boundary is. And in the rare occurrence, when one encounters a zebra take appropriate action. This is a training method for doctors, when diagnosing a ;patient and you hear hoof beats think horses not zebra. I too have been to Mr Lucas' seminar. He makes a fine point about what is and is not a high quality professional service. Both he and Mr J.B. Stahl do a fair amount of educating and I find them both to be generally excellent instructors, but since they both practice in other states with different state laws than California, one would be wise to consider their teaching in light of where the individual surveyor is actually practicing.

[David Kendall]

I have encountered zebras in the course of my survey field work. It was in 2008 on a boundary survey for a transmission line easment through a ranch about 30 or 40 miles westerly from Abilene, Texas. FYI, there was no trouble nor any cause for concern, they just galloped by a few times like they owned the place.

[LS_8750]

I'm really not happy with CCP 2077 (3), or "distance controls over bearing".
Based on my verbal research with like minded professionals, a lot of old surveys were done with compass and chain, usually they were the Friday surveys. Did they use slope or horizontal distance, who cares? Did they put the compass on a tripod? Did they hold the compass over the monument they just set? Who knows? With equal uncertainty, how could distance, bearing, or angular relationship be weighted?