California Surveyors Forums

Warren Smith wrote:Finley v. Yuba County, 99 Cal.App.3d 691 (1979)
"....."

In the years since Finley v Yuba Co, the CA Supreme Court weighed in, providing certain findings contrary to 2 of the items contained in Warren's quoting of Finley. Namely, agreements must be proven, not implied and ignorance of the true boundary does not equate to uncertainty.

The 2nd Appellate District pointed out the CA Supreme Court's findings, in its decision for Martin v Van Bergen, 209 Cal.App.4th 84 (2012).

"Proof of the acquiescence in the existence of a fence without evidence of an agreement to take the fence as a boundary is not sufficient to establish an agreed boundary."
"There is no evidence why the previous fence had been built in that location. It is true the neighboring property owners have long acquiesced in the location of the fence. But Bryant makes clear that such acquiescence is not sufficient to prove an agreed boundary. There must be evidence of an actual agreement."
", if Kirkegaard's conclusion that mutual mistake is sufficient to show "uncertainty" was ever good law, it is no longer. Bryant requires "deference to the sanctity of true and accurate legal descriptions". "Thus a boundary is not uncertain if it can be ascertained by an accurate survey."

For giggles and going back to the direction of the original post, some might wonder why none of the surveyors in Martin v Van Bergen utilized the fence as best evidence of the original quarter corner.

William,

Very good Shephardizing!

This points out the vagaries of the various district court's appellate decisions, and why the Supremes will accept cases in order to elucidate the underpinning rules of law and try to establish stare decisis.

A very interesting read is Justice Mosk's dissenting opinion in Bryant v. Blevins. There are obviously many competing issues at play, and reading the dissents will open up the contrary analyses that go into reaching a majority opinion.

Martin v. Van Bergen seems to convert California from a Subjective Uncertainty State to an Objective Uncertainty State with respect to the Agreed Boundary Doctrine. I didn't know an Appellate Court could change the law but there you have it.

Note that BvB did states it is not overturning Ernie v. Trinity Lutheran Church wherein the Church had relied on an old Survey.

Interesting quotes today

Following up on yesterday’s posts:

From the Orange County Chapter newsletter posted, it appears that the LA Chapter thought the Knerr v. Mauldin worth discussion and also sought, as I do, to understand why the trial court ruled the way it did, in light of all of the evidence.

The appellate court found no issue of law to rule upon. The issue was one of fact.

“The appellate court has no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence. (See e.g. Daluiso v. boone (1969) 269 Cal.App2d 253, 260 [in boundary dispute, weight of the evidence and credibility of surveyors are exclusively within the province of the trail court and binding on appeal].)”

Why would the trial court focus on O’Neill’s testimony?

Perhaps this quote from the “Opposition to Objections of Plantiff to Intended Decision and Proposed Findings on Issues Objected to” in the case sheds light:

“In Vowinckel v. N. Clark & Sons, (1933) 217 Cal. 258, 260-261, the court held as follows:

“In this case it is apparent that both Silva and Azevedo, thinking that the line fixed by the surveyor was the true boundary described in the deed, accepted such line as the division between their holdings, built a fence upon it, and occupied and improved up to the fence. We have here not only a continued acquiescence in the line so fixed, and an occupation in accordance with it for a period beyond that fixed by the statute of limitations, but the erection of substantial and permanent improvements upon the disputed piece by the defendant. It would be a manifest injustice to permit him to be ousted now merely because the plaintiffs have, by a new survey, discovered that their predecessor and the defendant were in error in the original establishment of the line. If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.””

Here's an oldie, but goodie:

"Where there is an acquiescence in a wrong boundary, when the true boundary may be ascertained by the deed, it is treated both in law and in equity as a mistake, and neither party is estopped from claiming to the true line. The boundary is considered definite and certain when by survey it can be made certain from the deed. (Janke v. McMahon, 21 Cal.App. 781)

"The line may be founded on a mistake. ( Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651].)" -Ernie v. Trinity Lutheran Church, 51 Cal. 2d 702 (1959) referring to the Agreed Boundary Doctrine.

"A likely story.....and one that is probably true."

Groucho Marx.

"proportional distance, that is the one place I can guarantee the original monument was never at" Bob Curtis circa 1975

"Expiration date? They're turning us into Notaries!" Neil Cummins circa 1986

This truth is incontrovertible. Panic may resent it, ignorance may deride it, malice may distort it, but there it is.

Churchill, 17 May 1916 (cited in Langworth, Churchill: In His Own Words)

"The truth is rarely pure and never simple"

Oscar Wilde

Winston has a bunch of good ones:

If you have an important point to make, don't try to be subtle or clever.
Use a pile driver. Hit the point once. Then come back and hit it again.
Then hit it a third time - a tremendous whack.

Winston Churchill

"A man oughta do what he thinks is best." -Hondo Lane

Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here? Why don't you say something righteous and hopeful for a change?
Oddball

Peter Ehlert wrote:Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here? Why don't you say something righteous and hopeful for a change?
Oddball

Good one, Peter. :-)

You're going to have to answer to the Coca Cola Company for that one!

"We give Engineering the chief attention in our technical schools, but surveying we are wont
to regulate to the Freshman class. Yet the profession of the Surveyor deals with one of the
oldest and most fundamental facts of human society -- the possession and inheritance of land.
Fire, Flood and earthquake wipe out the greatest works of the engineer, but the land continueth forever."


Mulford, 1912

I have used this often on this site


Brian

Mulford is a great read.

"The problems of boundary lie at the foundation of all surveying, for one must know where a line is before he can measure it..."

one of Mulfords' that gets some peoples goats is, and this if from memory:

"It is better to set a point approximately on the correct line than to set a point
exactly on the wrong line."

Boundaries and Landmarks is posted in some free online libraries and is searchable.

"It is far more important to have faulty measurements on the place where the line truly exists, than an accurate measurement where the line does not exist at all"

Dave Karoly, PLS wrote:

Peter Ehlert wrote:Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here? Why don't you say something righteous and hopeful for a change?
Oddball

Good one, Peter. :-)

You're going to have to answer to the Coca Cola Company for that one!

Nope, the movie Kelly's Heros

6.09 The Pincushion Corner

"The reason they exist can be attributed to many factors: a misunderstanding of the law of boundaries; a misunderstanding of monuments and the role they play in the establishment of boundaries; over-reliance on precise measurements to the exclusion of accurate results; the application of math to a problem that requires good judgment; the application of arbitrary rules of surveying; laziness or negligence in the recovery of existing monumentation; poor evidence gathering and evaluation; lack of proper supervision on the part of the licensed land surveyor; and treating a property boundary as an engineering problem instead of the factual and legal problem that it actually is - to name a few."

Jeffery N. Lucas, "The Pincushion Effect"

Peter Ehlert wrote:

Dave Karoly, PLS wrote:

Peter Ehlert wrote:Why don't you knock it off with them negative waves? Why don't you dig how beautiful it is out here? Why don't you say something righteous and hopeful for a change?
Oddball

Good one, Peter. :-)

You're going to have to answer to the Coca Cola Company for that one!

Nope, the movie Kelly's Heros

I was aware I mixed movies there. :-)

"How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!"

Samuel Adams

Time and innocence, once lost, can never be regained

“If you don't have time to do it right, when will you have the time to do it over?” ― John Wooden

OR as my old party chief used to say "Do you have time to do it right or time to do it twice?"

I always figured it was a variation of John Wooden's quote but never confirmed...