Original Line vs. old boundary line

[LA Stevens]

1. In 1894 the Woodman property existed from a deed from Winterburn to Root. It described a frontage of 65.25 feet along Josephine Ave.

2. Prior to 1939 Hearst Sunical Land and Packing Co (HSL & P Co.) owned the Woodman property and the property which lies northerly of the Woodman property.

3. June 9, 1939 Ms. D.E. Perry hired JC Oglesby And performed a boundary survey. He laid out a line which provided for 63.00 feet of frontage along Josephine.

4. July 7, 1939 a grant deed from HSL & P Co. to Ann G. Perry was recorded. The Perry description is the same as the present Woodman description and the same description recorded in 1894 from Winterburn. Again all of the descriptions call for 66.25 feet.

5. March 5, 1940 JC Oglesby found the stake he had set for the NW corner of the Woodman property and continued surveying northerly up Josephine.

6. The present day deed for the Ralston property next door calls along the Perry line.

7. The Woodman property was surveyed again in 1964 by Roemer and Estes and they laid out the boundary in accordance with the deed and used a frontage of 66.25 feet along Josephine. The Roemer and Estes survey tied out a small portion of an existing fence which agreed with the boundary originally laid out by JCO.

8. Sometime since the Woodman's have owned it they placed a fence of convience along an existing wall.

9. In 2001 MB surveyed the property in accordance with the Roemer and Estes Deed.

10. Today approximately 40-50' of concrete stairs and walkway fit within a 1/2 foot of the Estes Boundary ( approx 15' is a 1/2 foot over Estes Line). A small portion of a wall about 10' long which appears to belong to Woodman also fits with the Estes survey.

As far as we know to date, niether owner has any claim to where they believe the boundary to be.

This parcel is very expensive with a view of the SF bay area.
Does anyone know of any case law where you would forego the original line and accept the line as was run 44 years ago? Or where the courts have decided similar cases?

Any input would be appreciated.

Thanks,

[Paul Goebel]

In line 1 you state a frontage of 65.25 feet, then in lines 4 and 7 you state 66.25 feet. Is this a typo, or part of the mystery?

[E_Page]

I had the same question as Paul does, but assuming that the pre-1939 dimension is supposed to be the same as the other deed dimensions, and the only differing dimension is that of the JCO survey.

So, when JCO continued surveying up Josephine, did he use correct dimensions or did he use something else as he did with the Perry survey?

Are there other JCO monuments that conflict with the R & E monuments?

Is there any original monumentation?

Is there any occupation evidence that supports other boundary locations? That is, does some of the occupation evidence support a line that conflicts with the one supported as you described above?

If I am reading the scenario correctly, JCO incorrectly monumented Perry's N line, and then JCO, R&E, and MB all ended up basing subsequent survey work upon that line. So, presumably, the other lots are laid out with the correct frontage (you didn't say they weren't) but possibly 3.25' too far South.

This mistake (assuming it was a mistake) was made nearly 70 years ago, and apparently perpetuated several times over the course of several decades. It is likely that all parties have been occupying their lots per the lines laid out by these surveys over these many years. Your statement #10 seems to say that.

If I am reading this correctly, I would be very hesitant to try to correct the 70 year old error now. In doing so, you are not only affecting these two lots, but potentially every lot to the North that was laid out based upon this erroneous line. If you are later hired to survey some of those lots, you will have locked yourself into this logic of having to fix the effect of the mistake from 1939.

Start with Ernie v Trinity (51 Cal.2d 702) and see where that leads you. It can be found in the members section of the CLSA website. If you can't find it, feel free to email me and I'll send you a copy.

[LA Stevens]

In line 1 you state a frontage of 65.25 feet, then in lines 4 and 7 you state 66.25 feet. Is this a typo, or part of the mystery?
My typo - it should have been 65.25'.


So, when JCO continued surveying up Josephine, did he use correct dimensions or did he use something else as he did with the Perry survey?
The JCO evidence we have found is in agreement with his Hardcopy and field notes.

Are there other JCO monuments that conflict with the R & E monuments?
The r/w’s differ by about 0.6’+-. The NW corner differs by 2.25’ and basically agrees at the NE cor for the side bdry line..

Is there any original monumentation?
We found an old X from JCO survey of 1939 and have the house he tied in to as well as curbs he located in his survey which all fit within a few inches.

Is there any occupation evidence that supports other boundary locations? That is, does some of the occupation evidence support a line that conflicts with the one supported as you described above?
Not now, but it did exist when R & E did the survey. They showed a fence which would have agreed with the JCO survey and the 63’ of frontage.

If I am reading the scenario correctly, JCO incorrectly monumented Perry's N line, and then JCO, R&E, and MB all ended up basing subsequent survey work upon that line. So, presumably, the other lots are laid out with the correct frontage (you didn't say they weren't) but possibly 3.25' too far South.
I consider JCO the original surveyor and he prepared a plat that said the frontage was 63’, but it appears no one prepared a new description, they used one from 1894 which called for the frontage to be 65.25’

This mistake (assuming it was a mistake) was made nearly 70 years ago, and apparently perpetuated several times over the course of several decades. It is likely that all parties have been occupying their lots per the lines laid out by these surveys over these many years. Your statement #10 seems to say that.
The R & E and Brogan survey did not discover the JCO survey. They went strictly by what the deed said so a discrepancy of 2.25 feet from where JCO originally laid it out.

If I am reading this correctly, I would be very hesitant to try to correct the 70 year old error now. In doing so, you are not only affecting these two lots, but potentially every lot to the North that was laid out based upon this erroneous line. If you are later hired to survey some of those lots, you will have locked yourself into this logic of having to fix the effect of the mistake from 1939.
It wouldn’t affect any other lot because you’d still hold the original monuments.
JCO's client was

Start with Ernie v Trinity (51 Cal.2d 702) and see where that leads you. It can be found in the members section of the CLSA website. If you can't find it, feel free to email me and I'll send you a copy.
Thanks I’ll see if I can find it.

[E_Page]

Old JCO map says 63'. Did you find monuments or other evidence that verifies the 63' on the Perry lot? Is it possible that either the map you have has a 5 with an odd squiggle in it that makes it look like a 3, or that JCO's draftsman couldn't read JCO's handwriting in his notes or on the worksheet and put 63' on the map when he was supposed to put 65'? You've likely fully checked the graphical error possibility out, but I have to ask. Sorry if that seems too elementary a question to ask.

You say that R&E and Brogan went strictly by the deed, but what did they use in the field as a basis of bearing? Are there any common points between the JCO surveys and the others?

Even with a 2'+ discrepancy, I would be very hesitant to set monuments and file a survey that would tend to upset several decades of undisputed occupancy, otherwise known as settled boundary (you may have facts not yet presented that suggest it is not settled).

Although the June 1939 JCO survey was not called for in the deed for the property transfer a few weeks later, it could be argued that it was performed expressly for that transfer. I think that there is case law on that and that there is discussion on just such a scenario in Evidence & Procedure and in Clark. You might take a look into those texts and see if they give a case reference with which to begin research. (see E&P, 2nd ed, Sec 2-36 "Evidence of a Survey"; also see BCLP, 3rd ed, Sec 13.17 for an interesting discussion on Stare Decisis; see Ch. 20 of Clark, 5th ed., particularly Secs. 20.03 & 20.05 - do not neglect to check the additions in the supplement to the 5th ed.)

Also, the Perry and the Woodman lots were both owned by HSL&P when Perry acquired her lot, and the survey was performed by someone in the Perry family. That being the case, the line established on the ground would tend to be the best evidence of where the parties intended the line to be between them. There was not a competing title interest on one side of the line vs the other when the line was established in June 1939. That the survey was performed for Perry, the grantee, tends to indicate that it represents the grantee's understanding of what she was buying.

My gut says that whatever monuments that you have found from these old surveys should hold and the deed dimensions should yield, but I don't have a really solidly developed reasoning for you on this right now. (although as I'm typing this reply, I keep checking sources and developing my reasoning)

If you look up the case at www.findlaw.com, it has links to all cases cited by the case at hand, and a tool near the top of the page "Cases citing this case" that you can use to find more recent, related cases.

A quick scan of Ernie in the middle of writing this reply made my gut settle down a little.

The way I look at a situation like this is kind of like a bone that was broken many years ago and wasn't set right at that time, has healed in a position it wasn't meant to be in, but there it is. You can re-break it now to try to get it to heal in the right place. That may or may not ultimately work, but it's guaranteed to be painful when it breaks and painful as it re-heals. The only thing that's certain is the pain that will ensue. Usually it's better not to re-break something in order to try to fix it.

I think, Lary, that you have a bit of research and quite a bit of reading ahead of you before finishing this one up.

Last minute edit: Check the Code of Civil Procedure starting with Section 315. That's the portion dealing with Quiet Title and AP.

Let us know where you end up with this.


Another edit: I've been asked for the link to Ernie v Trinity. I'll describe how to get there: From the CLSA home page, select "Publications" on the left sidebar, then select "Articles" from the menu that pops up. This takes you to the members login screen. type in your username (your last name) and your password (your CLSA membership #). At the next screen, there is a button near the bottom left that says "Court Cases". That will bring up a few dozen landmark court cases for your reference. Just one of the many benefits to CLSA membership. Not a member? Welllll, why not?

[LA Stevens]

Ernie vs. Trinity, I thought it was a PDF in one of the forum threads. Sorry, I should know better and should have checked what you said when I didnt find it.
I found it at www.findlaw.com and read it. Now I need to review some of the other cases it refers to as well as some of the other references you suggested that I have at the office.

Some of the bantering between you, Ian and others, certainly has peeked my interest in this site as a refence. As well as a great sounding board.

Side note I've been an active member of CLSA since about 1990 including past president of Marin Chapter. I'll see you at the conference with my staff.

I have to go to dinner. I'll try and anwer other questions tommorow.

Thanks,

[E_Page]

Larry,

I tried to email you earlier, but it bounced back. Something about www.spamhaus-somethingorother. I'd guess that's some sort of spam filter (?).

I'll try it again from my alternate email to see if that works.

[LA Stevens]

Not certain why you got the spam filter?
Larry@LAStevensInc.com
or
LStevensLS@aol.com

Thanks

[LA Stevens]

“Old JCO map says 63'. Did you find monuments or other evidence that verifies the 63' on the Perry lot? Is it possible that either the map you have has a 5 with an odd squiggle in it that makes it look like a 3, or that JCO's draftsman couldn't read JCO's handwriting in his notes or on the worksheet and put 63' on the map when he was supposed to put 65'? You've likely fully checked the graphical error possibility out, but I have to ask. Sorry if that seems too elementary a question to ask.â€￾
NO, it’s 63’ checked from common ties to the existing house. It checks on a hardcopy, field notes and plat to client.


â€￾You say that R&E and Brogan went strictly by the deed, but what did they use in the field as a basis of bearing? Are there any common points between the JCO surveys and the others?â€￾
R&E used the cross established by JCO at the SE corner, MB used monuments northerly and southerly of the parcel in question to derive his position which we agree with in a north south position, but monuments “xâ€￾ vs. his tag disagree by 0.6’.


â€￾Even with a 2'+ discrepancy, I would be very hesitant to set monuments and file a survey that would tend to upset several decades of undisputed occupancy, otherwise known as settled boundary (you may have facts not yet presented that suggest it is not settled). “
My client will gain if I accept R&E/legal description position and ignore what JCO did, but I believe the neighbor will lose 2.25’ if the legal agrees with the hardcopy by JCO. The junior deed did call to the Perry line in the description and there was an old fence line when R & E did his survey which agreed with JCO survey.


â€￾Also, the Perry and the Woodman lots were both owned by HSL&P when Perry acquired her lot, and the survey was performed by someone in the Perry family. That being the case, the line established on the ground would tend to be the best evidence of where the parties intended the line to be between them. There was not a competing title interest on one side of the line vs the other when the line was established in June 1939. That the survey was performed for Perry, the grantee, tends to indicate that it represents the grantee's understanding of what she was buying.â€￾
The Perry and Woodman lot are one in the same. It appears Perry hired JCO to conduct survey before purchase. HSLP owned the Perry Lot and the one to the north where the problem resides.


I’m reviewing the cases at www.findlaw.com. Very useful site to expand on cited cases.
Haven’t seen anything yet that gives me a warm and fuzzy feeling with similar circumstances.

Thanks,

[dmi]

Larry,
I am glad this is not my job. I do not think your answer lies in finding just the right case to sight. I think you have enough field and record evidence to arrive at a professional opinion.

If I understand you correctly, you have the orginial position as described by deed and this position has been confounded by a survey that did not agree with the original conveyence, then followed by more recent surveys that tried to put the original deed on the ground without regard to the "problematic" survey and occupation that resulted from from the "problematic" survey.

I do not believe you can FIX this problem. If occupation is not coincident with the record title, then you have to find a way to get the adjoiners on board for a solution that they can agree on.


My inclination is to located the position based upon the orginal deed, provided that I can find acceptable original evidence in the field of that location, this includes acceptable perpertuations of orginal corner evidence.
I would advise my client that the adjoiner may have a claim that interferes woith the record title position and then advise them of remedies.

[LA Stevens]

I know that the original monument was placed in a different location from the subsequent deed which was recorded 3 weeks later- circa 1939. I know that a line of occupation was shown on a 1965 survey which agreed +- with the original 1939 survey. The 1965 survey showed occupation but held the frontage from the deed. (He was not aware of the unrecorded survey).

Also the norm for this area was to not call out the monuments you set to create boundaries in a legal descrition. Although in most of the cases, with some digging, I can find unrecorded plats before the conveyance occurred.

The occupation as it exists now agrees with the dimensions in the legal descriptions that exist now. The original adjoining deed did not have any frontage stated, it just called to the senior easterly line. Sometime since that time, someone has described a frontage of 73.28 for the adjoiner although it still qualifies to the Easterly line of the lands of Perry.

I don't have a full chain, but it's looking more and more like I should accept the 1965 survey and deed dimensions with acquiescence of 40+ years. Plus not being a 100% certain that someone didn't change their mind and decided they wanted 65.25' of frontage instead of the 63' JCO showed on his plat.

But I still want to do a little more research in to case law.

[dmi]

Larry,
The cases I am familiar with all come down in support of long held occupation.
As far as I know the court looks at a balance of hardship. So I would suggest that whatever you final solution is that it be one that does not cause undue hardship to one side or the other. I wonder if there was ever a common grantor in the chain of title? The Knerr vs Mauldin case (unpublished)
supports the point set by surveyors over time that were relied upon. there is an Oregon supreme court case that supports erroneous survey points that were held and relied upon for a long time. There is the case of French v Brinkman. This case involves common grantor, practical boundary location.
You case sound like a pratical boundary location, unless there in a record title explaination for the 63 v 65.25 difference. It seems as though you may need an easement for the walkway?

[LA Stevens]

"I would advise my client that the adjoiner may have a claim that interferes with the record title position and then advise them of remedies."

What do you feel the remedies are?

I think I have an obligation at the very least to monument my opinion and show on my record of survey any alternate resolution of a boundary location. Sometimes that comes with statements on the ROS of how it should be resolved if I can't get the owners to agree.

[dmi]

Well, I think at the least I would be obliged to do involves more than just setting corners and filing a map of my opinion. Given what you have descibed here there maybe title issues, that require attention. The remedies differ for each situation depending upon the parties involved. Are there title issues or not? I would not want to be in the situation of taking full responsiblity for determining That someone's frontage was 63' when there is evidence that it maybe 65.25'. This could result in a cause of action for slander of title.

As far as remedies an action to quite title comes to mind, but I think the the better possible solutions would include -lot line adjustment or a boundary line agreement. Given the facts you have stated it seems that there is certainly a dispute or conflicting evidence that would make the location of the boundary uncertain.

[Dave Karoly, PLS]

Let me try this analysis (I'm filling in the blanks somewhat so correct my facts if they are incorrect or mistaken):

1939: JCO does a Survey and presumably marks the boundary. JCO's Survey is only noticed by JCO and his client. JCO's staked lot width is 63'. It's reasonable to conclude that the interested parties could see the location of the marked boundary although they may not have been aware of the actual width. Later in 1939 a Deed is recorded which gives the width as 65.25'. This Deed carries constructive notice to the world. JCO's Survey notices just a few people. But all parties are under actual notice of the JCO location of the boundary because it's is physically marked.

1964: I would think a Surveyor is hired because the parties no longer remember or can find the 1939 boundary. The new Surveyor does not know about the JCO field notes and the notes don't carry constructive notice anyway. I'm not familiar with Marin County practice so I don't know whether the 1964 Surveyor could have been negligent in not uncovering those notes. However, the Statute of Repose is up in 1974 so it doesn't make much difference.

Evidence is the landowners adopted this 1964 boundary. That's not unreasonable given that it follows the Deed boundary. They build stairways and other improvements. They put detrimental reliance in good faith on the boundary which is their right to do.

2001: A Surveyor, I think, properly holds to the 1964 boundary. There's been more than sufficient years to hold the boundary.

Today: For the 65.25' boundary, you have 1) a Deed (constructive notice), 2) a 1964 Survey (technically doesn't carry notice but easy to find out about), 3) physical occupation and 4) a long period of years of reliance. For the "original boundary" (which is not definitely proved by any means) you have 1939 field notes which no one knew about.

I don't see a Title problem. I see a minor conflict in the evidence of the boundary which is easily resolved.

OK, let me know what you think.

[LA Stevens]

Because we are considering the improvement as the best available evidence, I went back out to obtain more direct ties to the line of occupation and the neighbors house. We also plotted similar features in the R & E notes. Holding occupation, we check R & E's measurements to clients house by 0.1' and 0.2' respectively. Neighbor's house corner has a 5.0' setback from one corner and and 4.6' form the other. Good Enough.

However it does disagree with MB survey by 0.6' now, but fits occupation. If 2001 survey would have shown occupation, it would have made it easier from the start to evaluate.

Based upon the available evidence, I don't see any other resolve but the one we have derived. However, I will show the 1939 survey as we're accepting that for the r/w and others should know it was considered.


On to the next brier patch!

Thanks,