Agreed Line per Survey Map

[mpallamary]

Thanks guys. Over the last few years, the rules of the forum have prohibited sharing current survey maps. What I came across was extraordinary and it resulted in a seven-lot boundary lot agreement and it succeeded because of the help of the county surveyor and the city surveyor. A couple of other surveyors were involved and they did not agree with each other. Because of their work and decisions, that provided the necessary element of "uncertainty." After preparing and recording a Record of Survey of the parcels, it became the basis for the legal descriptions.

[Olin Edmundson]

That would be interesting to see the map. Was it objective uncertainty from the beginning or was the uncertainty created by the two surveyors differing opinions?

[mpallamary]

The uncertainty was created by the other surveyors. One of them prepared and recorded a couple of surveys before filing a third one, altering his opinion on his previous surveys.

[DWoolley]

Olin Edmundson stated, “In what rare cases are lines of agreement an appropriate remedy, in your opinion?”

I have reviewed each of the boundary line agreements and the related record of survey that I have completed. I write with the understanding a 30-page paper could be written on precisely which circumstance lends itself to a boundary line agreement.

However, in my review of those surveys and the related research associated therewith, I have found the boundary line agreements have the following common and/or similar elements:

1. There was an issue in the title which could not be resolved after:

a. Performing a complete chain of title on all of the effected properties.
b. Finding all monumentation related to the properties
i. This includes breaking down the original parent parcel establishing the properties interior thereto.
c. Locating and mapping the improvements relative to the title lines (lines, plural).
d. Determining the senior right between the two parcels in question is indeterminable – this is when
two subdivisions occurred within the parent parcel, under one ownership, and there was less land than was subdivided.
Similar to a double call to a line i.e….thence N0E 1000’ to…also, being S0W 1000’ from...
e. The parties were not adverse.
f. There was no lender involved i.e. no loans on either of the properties.

[so much for taking 15 minutes to format the text - it appears as though it is lost on submit]

Broadly speaking, if a surveyor can place a check by most of these items it is likely appropriate to execute a boundary line agreement.

Ownership, possession and title are three different and distinct things. The deed to a property is evidence of ownership, not ownership, and holds true if the grantor held the property conveyed i.e. a grantor cannot sell that which he does not own.

As an example, imagine a 100’ square block, if the grantor grants the East 60’ (1950) and West 40’ (1957) and the block measures 95’ (1970) the second grant, the West 40’, is title, not ownership. Layer it, the West 40’ was developed first and the line was established in 1960 by measuring 40’ east from the west line and a wall was built at the 40' line. Mutual mistake? Not likely.

If the parties are not adverse, a boundary line agreement? Nope, a lot line adjustment – catching possession up to title and establishing legal ownership. Is the title line “uncertain”? No, it is 35’ from the west line. Does the owner have possession of 40’? Yes, with the wall. Does the title owner have ownership or a “right” to 40’? This is not within a land surveyor’s (or an attorney’s) purview to adjudicate. If the neighbor says “no way” to the proposed fix, the surveyor documents his findings, file a RoS and his work is done until he is called to testify. Do all of these situations need to be litigated? No. However, it oftentimes takes time and finesse to resolve these issues. It would be unfortunate for the parties to come together and hose it up with the improper use of a boundary line agreement.

In the event the “four corners” of the contract are whole i.e. do not infringe upon the rights of a senior grant and/or the senior right cannot be determined and/or there are two bonafide title locations – not imagined conflicting terms - on the ground applying the evidence, MAYBE, just maybe, a boundary line agreement would be the right remedy. A fence line, a structure over the line, monuments of known (occasionally) or unknown origin not set at or near the time of the conveyance (including those set negligently at 40’, without checking the overall lot dimension or title order, in the example above) does not create “uncertainty” – either subjective or objective. Title, possession and ownership being the same is the end goal.

Incredibly wordy answer and I feel as though the answer is 35% complete.

Olin Edmundson, I was pleasantly surprised to learn you are using your real name. I am loathe to respond to a pseudonym.

Steffan, I will get to your post. I welcome the opportunity.

This has been an interesting thread to me. Thank you to all of those that have contributed to the content, it has me thinking and rethinking.

DWoolley

[mpallamary]

As I am still reluctant to post the ROS, here is some background. The problem arose from a mistake made by the City years ago.

Can anyone see what is going on here and what happened?

[DWoolley]

In researching my files, I found that I modeled my first boundary line agreement from an example provided in a 1989 CalSurveyor.

The old CalSurveyor magazines are available on this website. I have since kicked those training wheels off, but the article got me to peddling.

DWoolley

[Olin Edmundson]

DWoolley

I am afraid we have let down our friend goodgps in providing unified guidance for the situation. After reading and considering all that has been said, I am not convinced that a boundary line agreement would be an inappropriate solution as you suggest. Your reference to Martin v. Van Bergen as authority doesn't seem to hold up because as Dave Karoly mentions, the case is wrong about uncertainty and Bryant didn't overturn the subjective standard. With conflicting records, Goodgps's clients have reason to be uncertain. I also can't hop on board with your reconveyance or quitclaim ideas as I've heard from too many experts that disagree. Local attorneys in my area, Jeff Lucas, John Stahl, Dave Karoly, Evan Page, none believe a title document should be used to fix a location problem. Mike Pallamary's account of his case did not contain objective uncertainty which it appears you feel is required (mistakenly it seems, through your incorrect reliance on Martin.) I have my own concerns about a surveyors authority to re-write title with adjoiners that have no part of an agreement, and this would be required with the reconveyance approach.

Other potential problems brought up including zoning and lender issues don't seem to be at play in this case. (I'm not convinced that they're an issue in true objective uncertainty cases either) After all, in this case, the clients would be agreeing to the true property line. It is important to remember that it is the client who requested this fix. I don't blame him with property values and litigation being as expensive as they are in places. It is cheap insurance.

I have no argument with your statements that things like a fence being misplaced or a non-record monument being recovered or other items that could be resolved by a thorough survey do not create objective uncertainty. These items alone would not fit the definition. I also have no argument with your example where an agreement is not proper in cases where ownership was uncertain. This would be a title problem that would require a title document. Not a location problem. Other comments about a "respected" surveyor who ignored a recorded agreement because he "he didn't like how the lines are run" do not present any legitimate argument against the practicality of using agreements in certain select cases. If properly prepared and indexed, the agreement would be binding on the parties and successors in interest. For a surveyor to ignore one would be like ignoring the deed.

[DWoolley]

Olin Edmundson:

The basis of your opinion is “Local attorney’s in my area, Jeff Lucas, John Stahl, Dave Karoly, Evan Page, none believe a title document should be used to fix a location problem.” [I underlined the text because the single line through the name was lost in the editor. ]

In California, Stahl recognizes how it should be is different from how it is – I would encourage you to ask him very specifically. After all is said and done, this leaves us with Karoly and Page, fair enough. I always welcome the input from each of these fellas.

Please answer one more question: How does a boundary line agreement get into a title insurance policy if you do not record a document they readily recognize?

I have had title companies (my equivalent of the authoritative “local attorneys”) tell me they do not pick up boundary line agreements (or records of survey) in their searches. On this forum, I believe we were told some County Recorder’s do not recognize and/or will not record the boundary line agreements. It was the advice of a title company that prompted me to file quitclaim deeds with the boundary line agreement – insuring that the title company would pick them up when writing a policy.

When you stated ”…Martin v. Van Bergen as authority doesn’t seem to hold up because as Dave Karoly mentions, the case is wrong about uncertainty…”

I figured you knew something not written on the face of the case, so I Shepardized the case. As it turns out, it is still good law and no red flags were noted on the case, none. Or did you mean it is not good law simply because Dave Karoly said so? As much as I respect Dave Karoly’s opinions, I doubt the appellate court looks to him for a Caesar’s thumb up or down as to the relevance of California case law.

Thank you for the well-reasoned and thoughtful posts.

DWoolley

"We only see what we want to see; we only hear what we want to hear. Our belief system is just like a mirror that only shows us what we believe. "
Don Miguel Ruiz

I suppose this is equally true of me.

[Olin Edmundson]

Getting the agreement into a Title insurance policy is crucial. For what it's worth, I've also asked this same question to Title folks and got the opposite response, that it would be picked up so long as the Assessors Parcel Numbers are referenced at the top of the document. I can see Records of Survey not being picked up because they are not recorded in Official Records. We should figure this out.

You overlooked Jeff Lucas in your response and I just went back and read what he had to say. It seems a big fear he has is that surveyors would be themselves putting together these quitclaim deeds, and there is a bright line distinction that deed preparation is in the domain of law. From my perspective, there should be an attorney involved in any of these remedies, so maybe this isn't a concern and we're fine with quitclaims. Nonetheless, both Lucas & Stahl are clearly not fans of using title documents to solve location problems. Forget Karoly if you want, but he has probably read more cases than any of us here.

The reason I am looking to others opinions is because I am not a lawyer or an expert by any stretch of the imagination on interpreting cases. From my laymans perspective, one is State Supreme Court, one is appellate, doesn't the Supreme Court decision control? Put that on hold for now....

Perhaps we can bypass these interpretation differences with Martin if it is looked at from a different perspective. From the property owners point of view, in goodgps's case, they have two recorded maps showing two different property lines. Both are licensed by the state of California to practice land Surveying. Two purportedly objective opinions. But they are different. I think you could call that objective uncertainty. And the fact that you or I could see that one is completely wrong is immaterial.

[LA Stevens]

Am Jur

V. Establishment of Boundaries by Agreement or Acts of Parties

A. By Express Agreement
Topic Summary Correlation Table
Research References
West's Key Number Digest
West's Key Number Digest, Boundaries 37(5), 46(1) to 46(3), 47(1)
A.L.R. Library
A.L.R. Index, Boundaries
West's A.L.R. Digest, Boundaries 37(5), 46(1) to 46(3), 47(1)
Trial Strategy
Proof of Boundary Established by Parol Agreement or by Acquiescence of Adjoining Landowners, 82 Am. Jur. Proof of Facts 3d 227
Forms
Am. Jur. Legal Forms 2d §§ 44:29 to 44:44
Am. Jur. Pleading and Practice Forms, Boundaries §§ 11 to 26
Model Codes and Restatements
Restatement, Second, Contracts § 128(1)

1. In General
Topic Summary Correlation Table References

§ 69. Generally
West's Key Number Digest
West's Key Number Digest, Boundaries 37(5)
A.L.R. Library
Admissibility of evidence of reputation as to land boundaries or customs affecting land, under Rule 803(20) of Uniform Rules of Evidence and similar formulations, 79 A.L.R.4th 1044
Sufficiency of showing, in establishing boundary by parol agreement, that boundary was uncertain or in dispute before agreement, 72 A.L.R.4th 132
Trial Strategy
Proof of Boundary Established by Parol Agreement or by Acquiescence of Adjoining Landowners, 82 Am. Jur. Proof of Facts 3d 227
Forms
Am. Jur. Legal Forms 2d §§ 44:29 to 44:40 (Agreements to Locate Boundaries; General Agreements; Optional Provisions)
Am. Jur. Legal Forms 2d §§ 44:41 to 44:44 (Agreements to Locate Boundaries; Agreements to Establish Boundaries)
Am. Jur. Pleading and Practice Forms, Boundaries §§ 11 to 26 (Establishment of Boundaries by Agreement or Acts of Parties; By Agreement)
Where the boundary lines of adjoining landowners are not definitely known or their location is in dispute, such owners may establish the lines either by a written agreement,1 conveyance,2 or parol agreement.3 To have a boundary by agreement, the location of the true boundary line must be uncertain or disputed and there must be a subsequent agreement fixing the boundary.4
The owners of adjoining lands are the only persons who are competent to agree and thus establish a boundary line between their properties where such line is uncertain and in dispute.5 Moreover, where there is a bona fide dispute as to the true location of a line, or its location is not definitely known, a sufficient consideration exists for the making of an agreed line.6 A written boundary agreement is binding on the parties and their successors in interest.7
CUMULATIVE SUPPLEMENT
Cases:
A boundary by agreement requires two things: (1) an uncertain or disputed legal boundary, and (2) an agreement between neighboring landowners as to what will be the boundary. Huskinson v. Nelson, 152 Idaho 547, 272 P.3d 519 (2012).
Boundary by agreement or acquiescence has two elements: (1) there must be an uncertain or disputed boundary and (2) a subsequent agreement fixing the boundary. Cecil v. Gagnebin, 146 Idaho 714, 202 P.3d 1 (2009).
Prior survey that incorrectly located boundary line between properties was not conducted to resolve a dispute or uncertainty over location of the boundary, and thus doctrines of boundary by agreement and boundary by acquiescence did not apply to establish prior survey line, rather than correct line located by subsequent survey, as the boundary; mere fact that a survey was conducted did not establish uncertainty, absent any showing of mutual uncertainty or mutual resolution y property owner and neighbor. Powers Ranch Co., Inc. v. Plum Creek Marketing, Inc., 243 Or. App. 371, 258 P.3d 1275 (2011).
Through sufficient demarcation of an agreed-upon boundary, parties may also bind their successors in interest. Bahr v. Imus, 2011 UT 19, 250 P.3d 56 (Utah 2011).
The sufficient demarcation of the boundary line element of a "boundary by agreement" claim is satisfied where the objective indicia suggesting the existence of a boundary line would place a reasonable party on notice that the line was being treated as the boundary line between the properties. Bahr v. Imus, 2011 UT 19, 250 P.3d 56 (Utah 2011).
[END OF SUPPLEMENT]
Footnotes
1 Williamson v. Williamson, 407 F. Supp. 370 (E.D. Va. 1976), opinion aff'd, 547 F.2d 811 (4th Cir. 1977); Moss v. Woodrow Reynolds and Son Timber Co., Inc., 592 So. 2d 1029 (Ala. 1992); Goff v. Lever, 566 So. 2d 1274 (Miss. 1990); Kelley v. Prock, 825 S.W.2d 896 (Mo. Ct. App. S.D. 1992).
2 Liberty Nat. Bank & Trust Co. v. Merchant's & Manufacturer's Paint Co., 307 Ky. 184, 209 S.W.2d 828 (1948).
3 § 71.
4 Downey v. Vavold, 144 Idaho 592, 166 P.3d 382 (2007).
5 Bryant v. Blevins, 9 Cal. 4th 47, 36 Cal. Rptr. 2d 86, 884 P.2d 1034 (1994).
6 Williamson v. Williamson, 407 F. Supp. 370 (E.D. Va. 1976), opinion aff'd, 547 F.2d 811 (4th Cir. 1977); Hotze v. Ring, 273 Ky. 48, 115 S.W.2d 311 (1938). As to the necessity of consideration for a parol boundary agreement, see § 73.
7 Minson Co. v. Aviation Finance, 38 Cal. App. 3d 489, 113 Cal. Rptr. 223 (2d Dist. 1974); Goff v. Lever, 566 So. 2d 1274 (Miss. 1990); Kelley v. Prock, 825 S.W.2d 896 (Mo. Ct. App. S.D. 1992).

[LS_8750]

Just because two surveyors do not agree on a boundary does not mean that uncertainty exists.

The case I described above pointed out that a civil standard degree of certainty existed because one surveyor recovered, and made judgements based upon, good evidence being a rather old plat of survey (unrecorded) that brought harmony to much of the occupation in the area around the time the lands were subdivided.

A competent surveyor would necessarily yield his opinion to the superior evidence recovered by the other party (surveyor). The dispute between surveyors should ordinarily not exist given the same evidence.

So where is the dispute or uncertainty?
Why ever hold any monuments? Aren't they all just a little bit off?

Surveyors are being duped into being false experts for the legal industrial complex. I see it. Surveyors are part of it.

What does Am Jur mean?

[LA Stevens]

Wikipedia:
American Jurisprudence (second edition is cited as Am. Jur. 2d) is an encyclopedia of the United States law, published by West. It was originated by Lawyers Cooperative Publishing, which was subsequently acquired by the Thomson Corporation. The series is now in its second edition, launched in 1962. It is a staple of law libraries, and the current edition is over 140 volumes, updated with replacement volumes, annual pocket supplements, and a New Topic Service binder. The discussion has extensive research references to other Thomson West publications, including sister publications Am. Jur. Trials, Am. Jur. Proof of Facts, Am. Jur. Pleading and Practice Forms, and Am. Jur. Legal Forms. Before Thomson's acquisition of West Publishing, it was a competitor to Corpus Juris Secundum. Am. Jur. is available online through both Westlaw,[1] and LexisNexis.[2]

[mpallamary]

I want to make sure my intentions are clear. I am posting the seven-lot boundary agreement for educational purposes and not to shed an adverse light on anyone. This is the background and the legal descriptions are now the ROS depictions.

[Olin Edmundson]

Just because two surveyors do not agree on a boundary does not mean that uncertainty exists.

The case I described above pointed out that a civil standard degree of certainty existed because one surveyor recovered, and made judgements based upon, good evidence being a rather old plat of survey (unrecorded) that brought harmony to much of the occupation in the area around the time the lands were subdivided.

A competent surveyor would necessarily yield his opinion to the superior evidence recovered by the other party (surveyor). The dispute between surveyors should ordinarily not exist given the same evidence.

So where is the dispute or uncertainty?
Why ever hold any monuments? Aren't they all just a little bit off?

Surveyors are being duped into being false experts for the legal industrial complex. I see it. Surveyors are part of it.

What does Am Jur mean?

Meaningful engagement in this conversation requires a couple of things. One, that you acknowledge that objective uncertainty does exist in certain rare cases. This determination is not made by a cursory down and dirty survey that reveals a couple inconsistencies, or by the mere fact that two surveyors happen to disagree, but through a thorough review of all available data and extensive field work and analysis. Secondly, it requires you to have a belief that the client is best served by staying out of court. Quite the opposite of your reference to the legal industrial complex, in whatever way you might find that significant.

In contrast to your previous flippant comment about BLA being for amateurs, they are instead for the most advanced among us who have the insight to foresee multiple surveyors making multiple interpretations with the same fact set. We surveyors too often let our ego get caught up in things and mistakenly believe that we have some special authority to bind property owners to our opinion. We don't. They (and the courts) are the only ones who have such powers. As an example, in Mike Pallamary's case, the modern retracing surveyor would have much better served his client by encouraging them to do BLA's to begin with rather than taking a stab at it, changing his mind, then changing his mind again. From a quick review, the original subdivision map did not have a single bearing or distance on it, and the City had available records disclosing previous errors made and major discrepancies in the area.

I find this particular case that GoodGPS has presented to be interesting, because it is a test of our understanding of the law, available options, best practices to solving problems and our authority as surveyors.

[mpallamary]

In the case I discussed, all parties agreed there was uncertainty. I was dealing with seven parties of varying health and motivation. With the exception of one party, everyone was in agreement. As we moved along, ill health from a couple of the property owners, created some problems. We resorted to a court action to settle the issues and, with the exception of one party, we got default judgments on everyone. I worked very closely with the attorneys, the title company, the city and the county. In the end, I placed monuments at the corners of the agreed upon boundaries and working with the city, they issued a certificate of compliance for every lot and the legal description for these properties was my ROS map previously posted. What my goal was, was to essentially make the ROS the basis for the location and ownership - a defacto subdivision map. It worked out quite well.

I have submitted a proposal to present a lecture on lot line agreements versus lot line adjustments at next year's conference. It is a topic grossly misunderstood by most people.

[E_Page]

A few observations on previous posts:

Dave Woolley:

You and I agree on a great many things, but I fear we may never agree on some of your main points in this thread unless you come around to my way of thinking. That can be taken as I feel I've learned or considered more than you on these particular points, or that I'm just too danged stubborn to change my mind. The former may be true. the latter certainly is true.

First, all boundary principles are legal principles. We are applying legal principles, correctly or incorrectly, each time we make any type of decision as to the weight of evidence or as to boundary location. Some legal principles are less settled and/or more complicated than others, so greater care must be exercised when considering them. Some are beyond the expertise of most surveyors and should be referred to a properly experienced attorney and, in some cases, to a more experienced and knowledgeable surveyor. A highly experienced and knowledgeable surveyor knows when to bring in an attorney and then how to advise the attorney on boundary location matters and how they might be affected by any of several remedies to location and/or title matters.

Again, you simplify the overlap situation too much by introducing extrinsic knowledge of the parent parcel which may not have been known at the time the conveyances were made.

You are correct that a deed is merely evidence of title. It is also a guide to help one find the boundary location on the ground, but not directly definitive of that location. Those controlling elements described are controlling once physically identified and located. When dimensions are the controlling elements, you need to get past the idea that it is the dimensions simply as you would measure them that are controlling.

When a landowner holds title to a block that is 100' wide, he holds title to a parcel which is 100' wide, not 95', 102', or any other width, but 100'. Exactly the same as the grantees you mention who came later.

Based on that record, he conveys the E 60' in 1950, and then the W 40' in 1957. If neither grant was made with the benefit of having verified the width of the parent parcel, then the grantor retained title to the W 40' of his record 100' parcel after the conveyance of 1950.

Don't get hung up on what you find the width to be in 2017 - and I know that you are sitting at your desk telling your computer monitor just how wrong I am at this moment. The 100' that the grantor held title to prior to 1950 was 100' as measured by the surveyor who first established that block on the ground. It is immaterial that his 100' is only 95' by your measure now. It is the 100' of record controlling the width of that block.

In 1950, the E 60' is conveyed. So where is the W line of that E 60'? I know... you're telling your monitor that it is 60' W of the E line of the 100' block, and not at the proportionate 60' you suppose I'm about to assert. 60', not 57', not 55', but 60.00'! We've had this discussion before. You are correct. It is at 60' W of the E line of the 100' block. But again, it's not necessarily the 60.00' that you or I would measure now. It is the 60' that would have been measured or be caused to be measured by the parties to that conveyance. So just where is that? I know, I know, 60'. But just like the 100' of the parent parcel that we later find to actually be at 95' per our recent measure, that 60' of the 1950 conveyance is merely a guide to help us find the evidence of where the line was actually established.

Move up to 1957. The grantor conveys the W 40' that he retained of his original 100' parcel, still without benefit of a survey to inform him that the surveyor of his original 100' parcel measured poorly by more modern standards. The 1957 grantee has evidence of title to a 40' wide parcel. Not a 35' wide parcel, not 38' (proportionate), or any other width, but 40'. But wait, but wait, you say, the parcel is only 95' wide! How can he have title to 40' when 60' has already been conveyed?

If that's your reaction, again, you are adding extrinsic evidence not known until you measure it in 2017. As far as the grantor or either of the grantees know at this point, the parent parcel is 100' wide and each of their parcels are 60' and 40' wide, respectively. 100 - 60 = 40. That was true in 1950, 1957, and it's still true today. So again, the 40' mentioned in the deed is merely a guide to find the location where the mutual boundary is actually located on the ground.

There is no problem in the title. The grantor owned 100' and through the two conveyances, he divested himself of precisely 100'. If the reasoning that the 1950 grantee must get 60.00' according to your 2017 measurement in order to "be whole" is true, why wasn't the owner of the 100' wide parcel entitled to the full 100' per 2017 measure?

"Because it was a block in a subdivision, simultaneously created with all the other block, lots, and streets of that subdivision." (or perhaps "Because we found the original corners or the parent, record 100' parcel." Either one works)

We agree that either of those reasons can be correct, and in applying the principle involved, we are applying legal principle (those principles were developed through courts, not by surveyors). Either way, the actual location of corners set during the original survey control the boundary location, and thus the size we find the parcel to be in 2017. If we determined the parent parcel boundary from original monumentation at points marking corners some distance from the corners of this parcel, we probably employed proration if there wasn't superior and more direct evidence of the boundary locations. If we found the original corners of this block, the proration principle is the same, just over one parcel. 100' (R) = 95' (M).

The principle of proration (also a legal principle) is based on the idea of correcting your chain to match that of the original surveyor. Although common sense and experience tells us that measurements made with more modern equipment and methods are far more likely to be correct and any actual significant errors exist in the older, more crudely made, original measurements, the principle we apply, the legal principle is exactly opposite. It is that way that gives the original measurement priority over later ones, regardless of errors discovered by those later measurements. thereby ensuring stability by preventing boundaries from moving with each new measurement.

That same principle applies to the common boundary between the E 60' and W 40'. The owner of the 100' (record) parcel, between these two conveyances, obviously intended to divest himself of the entire parcel. As to title, with what is known prior to the 2017 survey, there are no issues or potential problems, regardless of whether later measurements find any excess or deficiency.

If, by the time we arrive in 2017, there has been no previous establishment of the common line between the E 60' and the W 40', we will agree that the most widely accepted place to establish the common boundary is at 60.00' W of the E line of the 100'R/95'M wide block per our present measurement, with the later conveyance bearing the loss of the deficiency.

But if that line has been previously established according to reliance on the records existing at that time, then we don't have the authority to deem the true line to be somewhere else because we believe it to be more "correct". Doing so would be no different than rejecting the interior lines of a Section with a physically established set of aliquot division lines made in reliance from the GLO record and established GLO corner monuments because our calculations per BLM Ch 3 methods fall elsewhere.

In your example, the grantee of the E 60' (1950) made no effort to establish the line while the grantee of the W 40' (1957) did so shortly after receiving title. If the W 40' grantee measured from original monuments on the W line and the resulting wall (zero setback?) appears to have been placed at a location that represents a reasonable measurement of 40' from that W line, then it would be considered a reasonable establishment by a landowner or a builder working for the landowner. If the owner of the E 60' never questioned the correctness of that line, then by 2017, we are way beyond the statute of repose. That is not AP, it is a recognition that a boundary, established reasonably and without fraud, after a period of time (5 yrs in CA) becomes the true line regardless of technical errors made during its establishment. The owner of the E 60' has no grounds to reclaim anything more than the 55' (by 2017 measure) he is left with.

Any dimension in a deed is merely descriptive of 1) the measurement as it was made at that time, 2) previous measurements reflected in the record as it existed at that time, or 3) calculations made from dimensions gleaned from 1 or 2.

Only when there is no other direct evidence of an actual on the ground establishment and where proportionate measure does not apply, are dimensions held as exact values.


Steffan and Dave Karoly:

We all appear to have the same takeaways from Van Bergen. The only reason that the survey in which the proportioned Qtr Cor was deemed to be "accurate" was because the surveyor whose map clearly indicates a more thorough search and utilization of existing physical evidence had died and was unavailable to explain his findings. The expert retained in his place was essentially useless. I don't know whether the attorney retained him without sufficient time to review all the survey material or if the expert was merely a licensed measurer. Either way, the attorney was ultimately responsible to ensure that he had retained an expert who would offer opinion testimony useful to his client's case, and he obviously failed in that duty. I suspect the expert was/is a professional measurer since he declined to offer any opinions on the evidence presented by the other surveyors, saying that he couldn't do so unless he surveyed it himself. Utterly useless to his side and, as Jeff stated, bolstering, if not cinching the deal for the other side by stepping into the opposing attorney's trap.

One of my first chiefs told me that everyone is good for something, even if just as a bad example. IMO, that axiom applies to Martin v. Van Bergen. It is only useful as an example of an attorney not knowing how his expert would testify, and of how to take the opportunity of testifying as an expert to showcase your ignorance of either the facts of the surveys in the case, or your inability to assess survey evidence.


Dave Karoly and Clarke:

You made statements to the effect that some (me included) suggest a change in the title record primarily as a preventative against future less than competent surveyors further confusing the record.

Speaking for myself (Olin can agree or disagree on this point), that observation is spot on. About the only thing that we have all agreed on is that there are many less than competent boundary surveyors surveying (perhaps "staking" is a more apt term) boundaries, and nothing to suggest that will change in the foreseeable future.

Yes, if the dimensions in the deed do not agree with the physical evidence of the boundary location, the chances that some future surveyor will ignore or not recognize the superior physical evidence and merely stake out the dimensions is pretty high. That doesn't even consider future landowners with a boy scout compass and Home Depot tape (or HD handheld EDM), or handheld GPS misunderstanding and starting a dispute because their deed dimensions bring them to a point in their neighbors yard. Nor does it consider building contractors, fence builders, or unlicensed "surveyors" a future landowner might hire to do something that involves identifying the boundary.

Standing on professional principle to say that it doesn't make sense to make a change to title documents to clarify a location issue when a "competent" surveyor could locate the boundary is fine... for competent professionals. But as most of us have agreed, a great many licensed surveyors are not competent boundary surveyors, and most of those don't recognize that weakness in their skillset. Also, we, as a profession, have no power to ensure that landowners always hire licensed surveyors, much less competent ones, whenever boundaries need to be identified.

The title and boundary systems, and all the principles that were developed for them, were not made for surveyors. We are only the stewards of the boundary system, not its primary beneficiaries. Those systems were made for landowners who, by and large, don't have and are not expected to have the specialized knowledge expected of a licensed surveyor.

In circumstances where subjective uncertainty is sufficient, it is the actual knowledge and understanding of the landowners involved, and that which would be expected of a reasonably intelligent adult without specialized training that matters.

Where objective uncertainty is required, if the landowners hired properly licensed surveyors who come to differing location results, unless there is some way for the parties to determine that one of the surveyors is obviously wrong, then from a non-surveyors perspective, objective uncertainty exists. If the only way for the landowners to determine if objective uncertainty truly exists is to commission more surveys and take a poll, or to litigate, then the uncertainty or dispute is sufficient to allow for a Boundary Line Agreement. The requirement that they hire multiple surveyors to duplicate work for statistical certainty or to litigate to resolve the question is simply not reasonable.

As Olin pointed out, one of the primary purposes of a BLA is to avoid the time, expense, and enmity arising from litigation. The courts would rather a situation like this be resolved amicably by agreement than to add to the work of an already overloaded court system.

If there are lenders for either property, most lenders would understand and sign off on a BLA made to settle an uncertain boundary (i.e. avoid potential future litigation liability) without much difficulty.

Yes, title and location are separate questions. But they are intrinsically tied together. In determining the location, we look first to the deed for an indication of where to look for the boundary and often for what to look for as direct evidence of the boundary. Some inappropriately elevate the deed to something far more significant than evidence of title and guide to begin looking for the boundary, to a position of an all controlling fiat demanding the establishment of exact areas and distances, regardless of any direct evidence of the boundary which may exist.

The deed tells us What the landowner has title to. We can't find the Where unless we can recognize the What. We can't properly find the Where unless we correctly recognize the What and also recognize that reducing the description of the What to words is limited not only by the language itself, but by the writer's ability to use it to full descriptive effect. I have yet to see a description that was adequate to fully, completely, and without any slight ambiguity (either within the description or latent) identify a property's boundary location without resort to some amount of extrinsic evidence.



Clarke:

You have a very good base of knowledge to add useful advice and observations, but your posts in this thread make it seem like you are stuck in an extended bad mood. It's a bit difficult to sift out the helpful from what reads like the ravings of an angry hermit.

BLAs, like most anything else in our toolbox of equipment, methods, and remedies, can be misused such that they create problems rather than solve them. They are not for amateurs and also not something to resort to at the first sign of apparent uncertainty or conflicting evidence. But they are a valid tool and a valid remedy that a responsible surveyor can recommend where there is a dispute or some point of confusion on the ground or in the record that creates a significant potential for future conflict and litigation.



I'm pretty much in full agreement with Olin.

[mpallamary]

As I noted previously noted above, I made a submission to the association to present this topic at the next conference. What would be nice is for the committee to consider and accept this submission and for all those that are interested, to join me in a discussion on this matter. An open conference would be a great place to have this dialogue.

[E_Page]

As can be seen by this discussion, this is a topic that is difficult to get consensus on, even among competent surveyors.

I think a case study presentation and moderated discussion would be a very good way to stir up thought and educate through a variety of perspectives.

I'll read the cases later. thanks Mike.

[mpallamary]

That would be great! I hope we get a turnout and that the program is deemed a good one.

Several years ago, I organized CLSA's role and participation in the San Dieguito case. We participated as Amicus and I prepared and drafted the language that CLSA endorsed and that the court ultimately adopted. It took hundreds of hours of time but it was the product of debate and dialogue like this and it was a wonderful example of the association coming together in a constructive manner and working hard to accomplish some very important things. As to lot line adjustments and lot line agreements, this is a perfect example of how to develop a consensus across the state.

When I was working with Paul Cuomo, we made a number of very successful and very well-attended presentations across the state on lot line adjustments and lot line agreements. We tried to present these through CLSA but, and at the risk of reiteration, the then Executive Director quashed all of those efforts for reasons disclosed previously. If you have a minute, take a look at the attached and let me know your thoughts.

As always, I stand ready to assist the association any way deemed to be in the best interest of everyone.

[LS_8750]

Evan,
Thanks. I needed that.
Cheers,

[Olin Edmundson]

Mike

I see that CLSA has accepted your proposal to speak on this topic at the 2018 conference, that is good news! I appreciate your contributions to this thread, though I had hoped that you would have chimed in on the specifics of the case presented here. If time permits, perhaps you can share your official opinion on this case during the seminar.

Thanks!

[mpallamary]

Olin, Our internet has been down since last week! ATT switched my service and did not tell us. We are trying to rebuild our service and network. I am dying over here. As soon as I can breathe I will review.

Thanks for the kind words.