Acquiescence

[LS_8750]

Kris Kline put together the following article about the many meanings of "Acquiescence":

https://www.2point.net/post/the-2point- ... y-meanings

The cases discussed are all back east.

Anybody care to share some thoughts from a California perspective?

[David Kendall]

I suppose the best we can do as retracing surveyors is to identify and document any evidence of these elements. Would it be negligent not to do so?

I find that these situations are common in my daily practice. This type of evidence is rarely shown on filed surveys. Why? Maybe because it is not as simple as writing a dimension on a line....

I am interested in hearing how these situations are treated by California courts

One way to study acquiescence is to consider the variables that courts consider when determining whether acquiescence to a given line is sufficient to bind owners—and subsequent purchasers—to a line that is contrary to that described in relevant deeds.


Questions relevant to the dispute may include:


- Were the two parties acquiescing to the line originally grantor and a grantee, or were they adjoining landowners with no prior relationship?

- Did one or both parties actively participate in the establishment of the agreed line, and, if so, to what extent?

- What was the duration of possession/acquiescence along the line? Is the span of time sufficient to fulfill requirements from the statute of limitations in that state?

- Is the true location of the record boundary ascertainable, and, if so, to what degree of certainty?

- Is the true location of the record boundary apparent on the ground?

- Were one or both parties aware of the actual location of the boundary line?

- Was the agreed line marked before, concurrent with, or subsequent to the execution of the deed creating the boundary line?

- What physical evidence of an apparent agreement exists along the line in question?



The legal significance of these questions varies depending on the state where the case is heard. The parameters for any decision regarding acquiescence to a boundary line will be based on common law and/or statutory law in that state. There is no known precedent from early English or Civil Law to serve as a template for U.S. courts to build on, so each state has developed its own adaptations.

[DWoolley]

Show me a land surveyor that determined a boundary by acquiescence and I will show you a clear cut case of negligence.

Acquiescence is a legal theory that must be evidenced and argued before a court. Land owners are entitled to due process. A land surveyor usurping/denying an owner of their constitutional rights and damaging the real property rights is negligent.

Similarly, am I the only person to see land surveyors add "road easement be prescription" to an ALTA, legal description plats or site plans? I asked the land surveyor for a copy of the court case making the determination - it did not exist. In my opinion, those surveyors should not be allowed to practice and should be sued. Technically, that is a case for slander of title.

DWoolley

[hellsangle]

Thanks for the post, Clark . . .

Good food for thought.

Although costly - surveyors should have these in their reference library. CEB is chuck-full of stuff that the surveyor can help guide the attorney.

Crazy Phil

[DWoolley]

One more pace into the deep end, acquiescence is tied to the agreed boundary doctrine. Two owners cannot simply agree to a location of the boundary if the boundary location can be determined by a land surveyor (evidenced by title, monuments etc). It is a mistake (again, negligence) to use a boundary line agreement to resolve an agreed/acquiescenced boundary location. The boundary location must be uncertain. The proper instrument would be a lot line adjustment or parcel map.

DWoolley

[Mike Mueller]

I agree with agree with Wooley for ±95%.

The areas that I think are a little open the the general idea of "acquiescence" as put forth by that article are as follows:

Very rural areas with rough terrain. Places like Cazadero here in Sonoma County, where the land is steep, was logged for redwoods which got rid of most of the section corners, few (if any) surveys were recorded(or even done), and good portions were done by deed based on the original horrible maps. There is actually a section that is triangular (yes, 3 sides) or section corners that have 2-4 monuments all purporting to be the correct section corner, often with deeds not clear which one they were thinking of. Some of the townships were part of Bensen's work. Sometimes in these places the structures, lines of occupation and road beds are all that is available to try and determine what was in the minds of the scrivenors/buyers. We generally recommend our clients in these area to do BLA's with their neighbors to provide some actual title weight to our "opinion". I attached a screen shot of Google Earth with a third party program's boundary lines shown of the "downtown" area of Cazadero which also shows one of the "Cazadero Woodland" subdivisons. There are a bunch of subdivisions that used names of San Fransico streets but were placed in very remote sections... just think, a lot on Van Ness Ave for only $100 !!

Cazdero Capture.-With Parley Boundary Lines.JPG

The other situation that I regularly use uncalled for fences as the boundaries is in a handful of old subdivisions, generally in the south of the county where it was settled in the 1850-1880's, where every recorded map all agrees that the fences are the best available evidence to locate the old corners, and it is sort of a common report, entry man situation. In my mind these are more issues of modern precision rather than acquiescence. IE "10 chain" record means 628-692 feet is technically record, so finding a fence post at 670 feet is "on" enough for me.

Trying to extend that sort of solution to areas like cities or flat, well developed areas with roads etc is just a slippery slope to throwing out all boundary retracement methodology and becoming precise measurers of whatever is existing, and then giving a worthless blessing that gives false certainty to your client, since all it takes is another surveyor's opinion to cause a kerfluffle. The only way to give your client certainty is to involve a title transfer, or BLA, or worst case go to court and get a judge to agree with you.

And for the record, a BLA is not a magic fix, and like most fixes, is only appropriate under certain circumstances. Namely, the title is not in conflict, only location is, and the BLA fixes the existing title geometry to a particular location in the world, mutually agreed upon by all involved, and is documented with a recorded document, and then shown on my RoS. Locally here in Sonoma County I will only ever do one with the blessing of our County Surveyor, otherwise it can be red-tagged by our abatement department as an illegal LLA, and they will not give building permits until the redtag is cleared.

Mikey Mueller, PLS
Sonoma County

PS I tried to attach a copy of the record Cazadero Redwood Map, not sure if it worked.
PPS edited location of inline graphic

[David Kendall]

Show me a land surveyor that determined a boundary by acquiescence and I will show you a clear cut case of negligence.

Perhaps I was unclear. Or are you responding to something that Mr Kline said in the article? I don't find any prior discussion here of "determining a boundary by acquiesence" and I don't really know what that means. Please expand on your statement

I suppose the best we can do as retracing surveyors is to identify and document any evidence of these elements. Would it be negligent not to do so?

I agree with this statement:

acquiescence is tied to the agreed boundary doctrine. Two owners cannot simply agree to a location of the boundary if the boundary location can be determined by a land surveyor (evidenced by title, monuments etc). The boundary location must be uncertain. The proper instrument would be a lot line adjustment or parcel map.

It is a mistake (again, negligence) to use a boundary line agreement to resolve an agreed/acquiescenced boundary location.

I do not understand this statement, if the elements are there and uncertainty over the location of the line is evidenced then why not?

Mr Woolley, please describe how a competent surveyor might apply the agreed boundary doctrine to a survey conflict situation

[Mike Mueller]

https://umaine.edu/svt/wp-content/uploa ... ements.pdf

Generally sums up the BLA doctrine as I understand it.

Mikey Mueller, PLS
Sonoma County

PS Don't mean to speak for Dave, but thought the article linked would perhaps help with some common vocab terms.

[David Kendall]

https://umaine.edu/svt/wp-content/uploa ... ements.pdf

Generally sums up the BLA doctrine as I understand it.

Thank you Mikey this is a great summary of some of what I was thinking about practical application of the agreed boundary doctrine. Since Knud Hermansen is an East coast practitioner I can infer that this requirement for uncertainty in the location of the line is a widely if not universally accepted component.

I expect that under the right conditions the agreed boundary doctrine could be a useful tool for surveyors to use in facilitating conflict resolution between neighbors. The agreement would not be our duty but identifying the elements and documenting the supporting evidence certainly falls under the practice of land surveying.

[hellsangle]

What magnitude of error is considered uncertainty?

I recall Mr. Pallamary posting a picture of a tag 0.01' from another's point? To me that was crazy when you consider error ellipses.

Wouldn't we put the "boundary to bed" if 0.01' or 0.005' differences . . . and both parties agreed? Done.

[mpallamary]

Here it is.

[LS_8750]

Cooley wrote about acquiescence:

"Of course, nothing in what has been said can require a surveyor to conceal his own judgment, or to report the facts one way when he believes them to be another. He has no right to mislead, and he may rightfully express his opinion that an original monument was at one place, when at the same time he is satisfied that acquiescence has fixed the rights of the parties as if it were at another. But he would do mischief if he were to attempt to "establish" monuments which he knew would tend to disturb settled rights; the farthest he has a right to go, as an officer of the law, is to express his opinion where the monument should be, at the same time that he imparts the information to those who employ him and who might otherwise be misled, that the same authority that makes him an officer and entrusts him to make surveys, also allows parties to settle their own boundary lines, and considers acquiescence in a particular line or monument, for any considerable period, as strong if not conclusive evidence of such settlement. The peace of the community absolutely requires this rule."

Our own Mr. Karoly also has some good info on acquiescence in the attached.

[Jim Frame]

[I must have broken a site rule with my earlier post, as it seems to have been removed. Maybe it was the case law links I posted. I'll recap my remarks without them here, and see if this post sticks.]

Show me a land surveyor that determined a boundary by acquiescence and I will show you a clear cut case of negligence.

Acquiescence is a legal theory that must be evidenced and argued before a court. Land owners are entitled to due process. A land surveyor usurping/denying an owner of their constitutional rights and damaging the real property rights is negligent.

That theory *has* been evidenced and argued before a court, multiple times. And when the appellate courts rule and set forth guidance, that guidance isn't meant to be clamped between the pages of a book to gather dust on an attorney's shelf, it's meant to be applied in the real world. And when it comes to boundaries, the ones who do that applying are land surveyors.

In my original post (R.I.P.) I described a survey in which I found that the requirements of an agreed boundary, as set forth in multiple cases, but primarily Ernie v. Trinity Lutheran Church, had been met. I filed a Record of Survey showing my findings and describing the reasoning behind them. My client (actually my client's client, as I had been retained as an expert by his attorney by then) was being sued by his neighbor, who was claiming about 7 feet of my client's lot (nominally 60' wide). The Superior Court agreed with my findings and ruled in favor of my client. The judgment references my ROS. The plaintiff appealed; the appellate attorney told me he was 90% sure he could prevail on the appeal, but the additional cost prompted my client to settle for a 5-figure sum, having already spent way north of $100k defending his rights. He didn't give up any land in the settlement, he just paid the plaintiff to go away.

Once a surveyor has been retained as an expert witness, he is largely immune from a negligence charge. The negligence would have to be egregious for expert immunity to be set aside.

So Dave, I'm basically disagreeing with your statement.

[DWoolley]

...

Show me a land surveyor that determined a boundary by acquiescence and I will show you a clear cut case of negligence.

Acquiescence is a legal theory that must be evidenced and argued before a court. Land owners are entitled to due process. A land surveyor usurping/denying an owner of their constitutional rights and damaging the real property rights is negligent.

That theory *has* been evidenced and argued before a court, multiple times. And when the appellate courts rule and set forth guidance, that guidance isn't meant to be clamped between the pages of a book to gather dust on an attorney's shelf, it's meant to be applied in the real world. And when it comes to boundaries, the ones who do that applying are land surveyors.

...My client (actually my client's client, as I had been retained as an expert by his attorney by then) was being sued by his neighbor, who was claiming about 7 feet of my client's lot (nominally 60' wide). The Superior Court agreed with my findings and ruled in favor of my client. The judgment references my ROS. The plaintiff appealed; the appellate attorney told me he was 90% sure he could prevail on the appeal, but the additional cost prompted my client to settle for a 5-figure sum, having already spent way north of $100k defending his rights. He didn't give up any land in the settlement, he just paid the plaintiff to go away.

Once a surveyor has been retained as an expert witness, he is largely immune from a negligence charge. The negligence would have to be egregious for expert immunity to be set aside.

So Dave, I'm basically disagreeing with your statement.

Jim Frame:

Actually, the fact you prepared an exhibit (ROS) evidencing the elements of a legal theory to be argued before the court - constitutional due process - makes my point very precisely. In the alternative, a land surveyor establishes a boundary by her understanding of "acquiescence" (denying due process rights and proper legal representation to the parties) and walks away thinking a note on the record of survey fulfills the duty, unquestionably negligence. In the event the court disagreed with your exhibit and the attorney's argument, you would not be negligent as you cannot control the outcome of the case. However, it would be recommended that if your map had filed before the final adjudication a second map reflecting the outcome would be filed.

As for immunity from negligence when serving as an expert witness, you are 100% correct as it pertains to the court. I have firsthand experience on topic. An expert would have to have committed fraud or similar to be successfully sued for negligence while serving as an expert in court. However, that same immunity does not exist for a subsequent BPELSG complaint, regardless of any expert status in the same matter. Restated, BPELSG can make a determination of negligence by the land surveyor serving as an expert. Again, I have firsthand experience filing complaints on so-called "experts".

A land surveyor determining an "agreed" boundary (caveat, in California) and not catching title up to the agreement has created a problem. Any agreements, absent title, are only binding on the parties to the agreement. A land surveyor should know better and has created a problem that could easily lead to future litigation. It is important to know that this is not true in every state. Boundaries of private land are controlled by state law. I believe the leading authority on establishing boundaries based on agreement is John Stahl and in Utah, as I understand it, this is a legally acceptable method of establishment. This is not applicable in California.

DWoolley

[Jim Frame]

A land surveyor determining an "agreed" boundary (caveat, in California) and not catching title up to the agreement has created a problem. Any agreements, absent title, are only binding on the parties to the agreement.

I'm not sure the title thing is a problem for most agreed boundaries in California, because the requirements for recognizing an agreed boundary are so stringent. The layman's concept of adjacent owners saying "We don't know where the line is, so let's just say it's right here and agree to that" may work in other states, but not here. Objective uncertainty is a big element -- as Bryant v. Blevins underscored -- and the agreement fixes the location of the title line rather than changing the title line. Acquiescence in the fixed line over many years binds the successors to the original agreement.

In the case I mentioned, the agreement was inferred to have been made well over 100 years ago. The matter never should have been litigated; anyone with a lick of common sense could stand on the street, look at the 120-year-old houses and fences, and say, "Yep, there's the lot line," but the plaintiff had more money than common sense. (He doesn't have quite as much money now, having handed over a bunch of it to attorneys and experts.)

[Ric7308]

I always found this topic fascinating with regards to land surveying and have enjoyed reading this discussion. Frankly I encountered these types of situations more often when I surveyed in the east rather than CA or the other states in the west I worked in, but as I've spent more time in CA I can see similar situations occurring in very rural outlying areas. More often is relative as its not really that often. While in New England which is not a mandatory recording area (like we think of it - cue MP talking about LC), it is more likely to encounter old deeds which were not based on an actual survey and land owners have simply, and in most cases indirectly, used what they thought were boundaries. This is where I learned to document field findings to the nth degree in field books so the information can be passed on to the respective parties. Just based on my experiences surveying in CA, a BLA is very rarely, if ever, applicable out here for the reasons the rest of you have described.

[DWoolley]

...
In the case I mentioned, the agreement was inferred to have been made well over 100 years ago. The matter never should have been litigated; anyone with a lick of common sense could stand on the street, look at the 120-year-old houses and fences, and say, "Yep, there's the lot line," but the plaintiff had more money than common sense. (He doesn't have quite as much money now, having handed over a bunch of it to attorneys and experts.)

Jim Frame:

Although unfortunate in our eyes, litigation, due process, was his constitutional right. Few things are held more sacred in the United States than property rights. According to "The Mystery of Capital" by H. de Soto the basis and cornerstone of our nation's wealth is anchored in our stable land title system.

DWoolley

PS +1 Ric7308

[DWoolley]

...
Acquiescence in the fixed line over many years binds the successors to the original agreement.

That is not true. The proof is the fact all the other legal theories exist. The majority of the boundary cases I am involved with have a similar fact pattern:

1. Two neighbors lived in harmony for years, often decades, one neighbor dies or moves and the new owner wants to improve their "new" property.

2. The boundary is established in a different location than previously recognized.

3. The new owner wants all of "their" property.

4. Some surveyor slammed in two stakes or monuments and walked away - not without saying "hire an attorney" on his way out the door. This fella may or may not have done a good job.

And they're off to the races.

DWoolley

[Jim Frame]

I see the same pattern, but my statement about the agreement being binding on successors refers to an agreement recognized by the courts, not a casual agreement -- written or oral -- between neighbors. Once the matter is litigated (through appeals, if necessary), I maintain that the agreement binds all involved.

4. Some surveyor slammed in two stakes or monuments and walked away - not without saying "hire an attorney" on his way out the door. This fella may or may not have done a good job.

The fella in my case filed a ROS, but failed to show the conflicting evidence of the lot line location. He used record distance from a reestablished block corner to mark the line, and didn't mention the ancient houses or fences that pointed to a location about 7 feet north of the line he marked. If he hasn't been sued, it's only because my client is a nice guy and is exhausted by the years of legal wrangling and expenses he has incurred as a result.

[Warren Smith]

I think the distinction that the courts make is that a latent ambiguity needs to exist in the description such that even a land surveyor cannot resolve it. At that point, acquiescence by both parties is what a trial court will rule on.

If it is merely a matter of location which is capable of being determined by a land surveyor, then a lot line adjustment is the proper procedure.

In either event, all parties must be in agreement.

[Ian Wilson]

Phil-

You an I think alike when it comes to reference materials. I like the Miller & Starr CA Real Estate volumes, too.


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Books.jpg

[mpallamary]

I began my career surveying in the northeast. It is a different world up there. Most of our laws come, first from England and then New England. The Land Court system was developed to address these issues. The foundation comes from The Doctrine of Agreed Boundaries. I have testified in Land Court as to the location of boundary lines.

Chris' lecture is interesting but, as a general rule, almost inapplicable in California.

Some of the ugliest disputes I have seen is when an unqualified Land Surveyor makes a suggestion and/or gives out bad advice to a client and he/she acts on it. A little bit of knowledge can be harmful.

This, yet again, is another reason why we need continuing education.

If you are interested, check out how Land Court works.

Apart from adjudicating cases, registration of title to real property is one of the Land Court's most important responsibilities. Registration of title under Massachusetts state law occurs when the Land Court, after having the title exhaustively searched by a Court-appointed examiner, and after due process is afforded to all interested parties, reviews and then adjudicates and decrees the state of the title. Once this process is complete, the current state of the title, as it is sequentially updated by registration of future transactions, is embodied in a certificate of title which both evidences and guarantees title, subject only to the exceptions provided by statute and matters of federal law. The initial decree of registration and the subsequent certificate of title are actions in rem. Registration is useful when title is insufficient to support a conclusion of ownership under the traditional recording system, or is clearly defective, and the putative owner desires to make the title good and marketable.[4]

The court employs a staff of engineers and surveyors to help accomplish the task of determining land title and boundaries.[4] The Land Court also has superintendency authority over the registered land office in each registry of deeds.

The Land Court was originally created by the Massachusetts Legislature in 1898 as the "Court of Registration". The court's name was changed to the "Court of Land Registration" in 1900, before it was finally given its current name in 1904. Over the first few years of its existence, the Court was brought into its current status as a court of record on a par with the Superior Court. Until the creation of the Massachusetts Appeals Court in 1972, it was the only court of statewide jurisdiction other than the Supreme Judicial Court.[4] The original text of Land Court cases is provided by Westlaw, Mass Cases and LexisNexis. A law reporter with Land Court cases, commentary, and subject matter indices is provided by Landlaw Inc.

https://www.mass.gov/doc/land-court-200 ... s/download

https://www.bullivant.com/the-agreed-bo ... dary-line/

https://wagensellerlaw.com/real-estate- ... -doctrine/

https://www.capecodtimes.com/story/news ... 288441007/

[mpallamary]

One of the interesting things abut Land Court, is buildings become monuments, especially in urbanized areas. They are more durable and reliable than conventional survey monuments.


Land Court Procedures:

2.1.3. FIELD SURVEYS
2.1.3.1.Required Fieldwork

2.1.3.1.1. Purpose of Survey. The purpose of the survey is to show the premises and create a record such that the boundaries, easements, and associated rights as later determined by the Court, can be retraced on the ground from the data shown on the plan or filed therewith. The fieldwork shall be performed so as to obtain complete information for computing and plotting the survey with appropriate checks on each part of the work.

2.1.3.1.2. On-The-Ground Survey. All plans must be the result of an actual survey performed on the ground. The survey and plan must be made by, or under the direct supervision of, the surveyor whose signature, certification, and seal appear on the face of the plan. In all cases, the plan must show the actual facts existing on the ground, in full detail, on the date of the survey. The surveyor serves as the eyes of the Court for all registered land. The survey must have been performed, or updated, within six months of the date the Land Court accepts the Filed Plan.

2.1.3.1.3. Closed Field Traverse. The survey must be predicated upon a closed field traverse of appropriate precision running around the property, either upon the boundary lines, or upon traverse lines from which the boundary lines are located, or upon a combination of both. All traverse lines shall be run within a reasonable distance of the property lines being located.

2.1.3.1.4. Field Location. All observable features that may have a bearing on the determination of property boundary lines or title lines shall be directly located from the closed field traverse. Such features to be located may include boundary monuments, walls, fences, buildings, water bodies, limits of occupation, roads, cart paths, encroachments, and easements.

2.1.3.1.5. Evidence Within 10 Feet. All evidence of occupation and possession within 10 feet of the property boundary lines and easements shall be located. This includes all buildings, fences, and monumentation.

2.1.3.1.6. Buildings. When a building or structure to which the property lines or traverse lines are referenced is located, a precise description of the particular point located must be made. "Corner board up 0.7 feet,” "10th brick up,” and "top of foundation" are suitable descriptions and should be noted in the field notes and on the plan. When actual ties are measured from buildings to traverse points or monuments, similar notations should be made.

[mpallamary]

Hawaii has a similar court for the same reasons. Ancient and uncertain boundaries.

https://www.courts.state.hi.us/docs/cou ... es/rlc.pdf

[mpallamary]

https://www.mass.gov/doc/petition-to-am ... e/download
https://www.mass.gov/doc/land-court-gui ... d/download