Old Fence not agreed boundary case

[LS_8750]

Thank you for your input Mr. Karoly.
Cheers.

[Dave Karoly, PLS]

Dave, you are confusing adverse possession with boundary determination, they aren't the same thing. The various boundary doctrines determine the boundary per the Deeds, there is no transfer of title. I am not taking away anyone's rights, I am just figuring out what they have done themselves by their actions. The Doctrines provide sort of an evidence and analysis work flow to arriving at the boundary. I need to do more research work, what I've done so far is just a bare minimum.

The biggest misconception when it comes to boundary doctrines such as Agreed Boundaries, Practical Location and Original Boundaries is that they transfer title and they must somehow mean "fence". There is no transfer of title and they are designed to promote stability; more stability than mere measurements from remote control can provide.

If I can't determine a boundary location then why bother with licensing land surveyors? There is no reason, with modern equipment anyone can go play geometry on the ground.

Adverse Possession is related to title and must be perfected through a court proceeding. Steve Gardner told me he knew of a case in the gold country somewhere where a client actually did squat on an abandoned parcel, paid the taxes and eventually got a Court decree which granted him title but it isn't published.

California has adopted the Federal Expert Witness rule (ultimate issue), I don't remember which section but it wasn't hard to find. It's in the Evidence Code.

This is just me rambling but I think we have a problem when Land Surveyors think we are just providing factual diagrams and the courts think we are providing an opinion on the ultimate issue, what and where is the boundary. It would be like you asking, "what would you like to drink" (I hear what do you put in your car engine) and I answer, "5W30 motor oil please." The issues in boundary aren't that clear cut so the court doesn't pick up that in Bryant the Surveyor is just doing mathematical gymnastics not meaning to testify on the ultimate issue so they now are trying to fit the doctrines to the wrong line which the Appellate Court got it but the Supremes took a hammer to our Agreed Boundary doctrine and made a mess. I blame it on us, not them. We are supposed to be explaining it to them.

Yes, I am reading Lucas's book because he is at least trying. Sure he has offended some people but you can't make an omelet without breaking some eggs. It was a gift from a young colleague. I have read Cooley's speech (as most have) but I was never exactly sure what using the same lights as the Courts meant, I mean as a practical matter. Lucas begins to explain it but he is aiming at a National Audience so of course I need to do more research on the California details.

Thanks for the to-do list (there's always room for improvement when it comes to me, believe me) but I'm tired tonight. A Honda ATV broke down at the end of the day and we had to tow it two miles on rough forest roads with the other ATV then deliver it to the mechanic. I can't believe how cheap the ignition cowl is, the wire is coming loose. We drove a 1988 Honda ATV in rough, off-road terrain for years and never had this kind of stupid cheap c**p. We are lucky we had another one and a tow strap.

[dmi]

Marketable title.

[Dave Karoly, PLS]

The majority opinion in Bryant v. Blevins is signed by Chief Justice LUCAS.

P.S.: boundary, not title.

[Jason Gasser]

This thread, and others, have been eye opening. They make me realize that the “legal aspectsâ€￾ portion of my college education wasn’t all that it could have been. I also realize that the apprenticeship portion of my education was largely limited to what my mentors knew and/or assigned me to do. I’m part way through Jeffery Lucas’ book (very educational) and am now convinced that our system of bringing up professionals has to be more robust regarding retracement and legal topics. More robust in the college setting, apprenticeship setting AND in reference materials for those practicing. The posts from Mr. Stahl, Mr. Karoly and others about established boundary doctrines are wonderful to read and not as well known as they should be, at least according to my background. Please tell me if I’m missing something or if such a resource exists: I really think California needs a State Specific compilation/manual of detailed legal boundary doctrines with each doctrine referenced to recent court decisions, all being clearly accepted by (1)BPELSG (2)CLSA , and (3)The CA courts. This manual would break down each accepted legal theory and point to court decisions to explain it. We could even make reference to this manual as needed on our survey plats. What do you think?

If you feel like it, please check out the following link for inspiration: https://www.lsaw.org/store1.php
The Land Surveyors’ Association of Washington (State) (LSAW) publishes and distributes a reference manual called “WASHINGTON STATE COMMON LAW OF SURVEYS AND PROPERTY BOUNDARIESâ€￾. I don’t have a copy but it looks like an amazing State Specific resource.

On a similar note (for further inspiration) and speaking of Jeffery Lucas, the Illinois Professional Land Surveyors’ Association (IPLSA) is working with Jeffery Lucas to create and publish a new Illinois Boundary Law Book. Mr. Lucas will be giving several presentations on the book at the IPLSA 2013 Conference. This also looks like an amazing State Specific resource. Check out the attached IPLSA education session description to get an idea of the Chapter contents of the Illinois Boundary Law Book.

A resource such as “CALIFORNIA STATE COMMON LAW OF SURVEYS AND PROPERTY BOUNDARIESâ€￾ or the “CALIFORNIA BOUNDARY LAW BOOKâ€￾ would be invaluable. It could be taught in colleges, incorporated into the CA State Specific LS exam and used as references on our survey plats. What do you think?

[Jason Gasser]

Thank you Woodcutter! I will be more careful. The pdf in question is unattached.

[Dave Lindell]

The water boundary section would take up 14 volumes all by itself, and you still wouldn't have any clear ideas!

[Dave Karoly, PLS]

The Agreed Boundary Doctrine explained in Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702:
"The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. ( Mello v. Weaver, 36 Cal.2d 456, 459 [224 P.2d 691]; Hannah v. Pogue, 23 Cal.2d 849, 856-857 [147 P.2d 572]; Martin v. Lopes, 28 Cal.2d 618, 622-627 [170 P.2d 881]; Young v. Blakeman, 153 Cal. 477, 481-483 [95 P. 888]; see also 4 Cal.L.Rev. 179; 14 Cal.L.Rev. 138; 56 Mich.L.Rev. 487 et seq.) The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position. It is not required that the true location be absolutely unascertainable ( Price v. De Reyes, 161 Cal. 484, 489 [119 P. 893]); that an accurate survey from the calls in the deed is possible ( Silva v. Azevedo, 178 Cal. 495, 498 [173 P. 929]), or that the uncertainty should appear from the deeds ( Mello v. Weaver, supra, 36 Cal.2d 456, 460). The line may be founded on a mistake. ( Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651].)"

This is the part Bryant vs. Blevins overturned:
"The court may infer that there was an agreement between the coterminous owners ensuing from uncertainty or a dispute, from the long-standing acceptance of a fence as a boundary between their lands."

This explains that the boundary so determined is the boundary described in the Deeds (which is what Land Surveyors survey):
"Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v. Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy . . . that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.'" Each coterminous owner is deemed to have paid the taxes according to his deed. ( Price v. De Reyes, supra, 161 Cal. 484, 489-490; Caballero v. Balamotis, 144 Cal.App.2d 58, 61-62 [300 P.2d 363]; Carr v. Schomberg, 104 Cal.App.2d 850, 860 [232 P.2d 597].) It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed."

Adverse Possession is a completely different doctrine. It requires hostility while the Agreed Boundary Doctrine requires agreement. Adverse Possession involves a transfer of title while the Agreed Boundary Doctrine does not.

from Bryant v. Blevins, 9 Cal. 4th 47:
"Notwithstanding the conclusion we reach in this case, we decline to limit application of the agreed-boundary doctrine to instances in which existing legal records are inadequate to settle a boundary dispute. As previous cases have explained, such an inflexible rule would risk destabilizing long-standing agreements--made in good faith by coterminous property owners in order to resolve uncertainty as to the location of their common boundaries--that might, for any one of several reasons, be at variance with legal property descriptions or survey results. Instead, we reaffirm the vitality of the requirements necessary to establish the applicability of the agreed-boundary doctrine, set forth in Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702 [336 P.2d 525]. (See also Martin v. Lopes (1946) 28 Cal.2d 618, 624 [170 P.2d 881] [discussing the policy in favor of according stability to boundary agreements adopted in good faith by coterminous landowners and acquiesced in for a period longer than the statutory period of limitations for adverse possession].)"

and quoting Young v. Blakeman (1908) 153 Cal. 477, 481-482 [95 P. 888]:
"The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable…. If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds."

The doctrine is intended to reduce litigation. In other words, the property owners have a valid agreement and it doesn't need to be confirmed by a Judge just as we don't litigate every Deed and Contract.

I think this is the key part of Bryant:
"Thus, a fence--which, in Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d at page 708, we observed "might in and of [itself] be of an uncertain, temporary or equivocal nature"--is not the type of "substantial structure[]" from which an agreement to accept an agreed boundary reasonably may be inferred in the absence of evidence that uncertainty on the part of the property owners led to their agreement to rely upon the fence as evidence of their common boundary. (1c) On the record before us, we conclude that defendants, as the parties invoking the agreed-boundary doctrine as the basis for their claim of title to the disputed strip of land, have not met their burden of proof under the test we set forth in Ernie."

In the following the Bryant Court more or less says it would decide Ernie the same today, that is, if the established boundary was based upon a Survey long enough ago then the Doctrine would be activated. I take from this that we should be retracing old Surveys, not staking new lines:
"A comparison of the facts of the case before us with those underlying Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d 702, is instructive. Ernie involved a property dispute over the ownership of a strip of land, slightly less than one foot wide and one hundred forty feet in length. In 1925, the defendant's predecessor in interest (like the defendant, a church), purchased a parcel of land adjoining the property owned by plaintiff's predecessor in interest. Shortly after having a survey made of the property, the defendant's predecessor constructed a rectory and a cement walkway (with a fence embedded in it) upon the strip of land in question. These improvements remained in place for more than 26 years without objection from the adjoining owner, the plaintiff's predecessor. At some point after purchasing the lot adjacent to the defendant's property, the plaintiff commissioned a new survey of the land, based upon the descriptions set forth in the recorded deeds, and, when that survey indicated the disputed land fell within the description contained in the plaintiff's deed, the plaintiff sued to establish her ownership of that strip. On these facts, the court in Ernie held: "It may be inferred that there was an uncertainty as to the true [boundary] at the time the structures were erected [presumably because the defendant's predecessor had a survey conducted immediately prior to construction of the rectory, walkway and fence], which uncertainty was settled by practical location on the ground at that time and was agreed to by the then coterminous owners." (51 Cal.2d at p. 708.) Accordingly, the court in Ernie held that the defendant properly held title to the disputed strip of land under the agreed-boundary doctrine."

A fence by itself with no evidence that it was built to resolve uncertainty in the boundary would probably fail the boundary test in California.

[Jason Gasser]

Hmmm. Maybe 14 volumes could justify having its own manual. I'm definitely not suggesting that each case reference would have a complete transcript; perhaps the case name and abstract would be fine. Individual cases could be looked up as needed.

By the way, I don't know many land surveyors (including myself) who are proficient at looking up and/or searching court cases, even though services such as Lexis Nexis ( http://www.lexisnexis.com/en-us/product ... ornia.page ) and the Public Law Library are available. This is another area that could be addressed by education, apprenticeship, the CA LS exam AND professional development.

Mr. Karoly,
Thanks for a great post of genuine research and reason. May I propose a Dave Karoly contribution to the Agreed Boundary Doctrine portion of a future CA State Boundary Law Manual?

[Dave Karoly, PLS]

Mr. Wooley-

I appreciate your post.

I am still studying the issues brought up in this thread and I have to say I am open to good comments such as yours.

Best Regards,
Dave Karoly

[dmi]

"Any time a Land Surveyor determines a boundary location he is using some Doctrine or other."

On the next survey I gonna just pull "esttopel" out of my handy dandy doctirne box.

"The court may infer..." notice the subject? Does the word "court" equal the word "surveyor"? Are theses words interchangable?

I believe one needs to appreciate what the fucntion of an appeals court decision is. My understanding is that the appeals court decision is instruction to the lower court. Yes your decision is correct, no you abused your authority and your opinion is overturned or the case is given back to you to decide and it will be reheard based upon x,y,z.

The appeal is never based upon whether Surveyor A or Surveyor B was a better surveyor or applied the "correct doctrine". The appeal can only be based upon the action of the lower court. The appeal court decision may turn out to have the effect of favoring one surveyor's opinion over another's, but this is the by product of insuring a fairly decided opinion.

So it is my understanding that in B v B the court is instructing lower courts to stop and to rule consistenly where there is a deed that can be placed upon the ground.

I am concerned at what appears to be a somewhat glib discussion of extremely important matters and the potential for misunderstanding of the quasi-judicial function of the surveyor.
Brown 4th ed. Page 16
EP&BL
“No surveyor should become an advocate for the client, but the surveyor should approach the evaluation and analysis of evidence in a wholly impartial manner, and as such, the surveyor should consider all of the positive evidence for the position and all of the negative evidence and from the totality of the evidence should then form the expert’s professional opinion.”

[Dave Karoly, PLS]

Evidence Code Section 805:
805. Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.

I have read Jeff Lucas's book which is fine as far as it goes. It is barely a beginning and it is National so not directly applicable to my practice here. I think we need two things.

First, a "California Boundary Law Manual for Land Surveyors." This summarizes the law as derived from the primary sources. Not everything in here would necessarily be within the practice authority of land surveyors, Adverse Possession being the most obvious since that can only be perfected by a Judge. It would be good, however, to know about it so that we can assist Attorneys as Experts. I would expect there wouldn't be too much disagreement here. The cases speak for themselves. This would need to be updated occasionally.

Second, a "Practice Manual for California Land Surveyors." This would be more procedural and would be advice for Land Surveyors on how to proceed in various situations. Obviously no exact set of instructions can be laid down, this would be advisory. Sometimes you should do as Ray Skelton suggested in 1930; make a situation map for the property owners but don't call it a Boundary Survey and don't set monuments. Sometimes the issues are few and you can be confident in setting new monuments (or accepting existing ones) with little chance of igniting a dispute.

[dmi]

I think that was Brown's intent when he wrote both "evidence and procedures for boundary location" and "boundary control and legal principles".

[Dave Karoly, PLS]

It seems like it except those are National books. BC&LP is a pretty good basic text for beginners.

[dmi]

Knowing how and why a surveyor established his lines where he did is the foundation for understanding where obliterated and lost boundaries should be reestablished.

Anyone disagree with the above statement on think it is outdated?