Agreed Line per Survey Map

[Dave Karoly, PLS]

I'm not suggesting anyone should do or encourage illegal lot line adjustments. I just find the cases interesting from an educational perspective.

The classic subjective case which has been upheld at least twice since 2000 is the fence vs the so-called true line. In the first, there was no fence. The property owners met at the rough location of the boundary and mutually laid out a new fence agreeing not to get a survey, just do it themselves. I think this was a fairly ancient subdivision lot line. They agreed on where to build the fence jogging around a tree that the neighbor should have and like that. A couple of decades later the next owner of the "losing lot" brought in the surveyor who measured in the lot line and of course the fence was not on it with a "losing" party and a "winning" party. The "winning" owner was able to testify about the conversation between her, her late husband, and the former owner of the adjoining lot and apparently the trial court found her testimony credible because it ruled it is a valid agreed boundary meeting the requirements of Bryant (affirmed in an unpublished appellate opinion).

In the second case (after Martin v. Van Bergen) one neighbor had sought the permission of the other neighbor to modify a fence at her own expense (also in an ancient subdivision). The neighbor agreed to the modifications. The trial court accepted this as sufficient evidence of a boundary agreement (affirmed in an unpublished appellate opinion).

There is a third case where the neighbor's sought the advice of their neighbor from across the street because he was the construction superintendent of the subdivision. He pointed out where he thought the lot line is located and they built a wall. Of course he was wrong. The court refused to call that an agreed boundary so it went back to the true line. One thing that distinguishes this case from the other two above is it is a relatively new subdivision. A surveyor could've easily marked the line but I don't think that was a factor in the judgment; it was just that the evidence didn't support an agreement.

There is also an element of outcome based reasoning in these cases. In the second case the losing party was ruled a vexatious litigant so that seems to play a part. The conversation could be ruled either way. If the case is 49.9% vs 50.1% it isn't too much of a stretch to flip it the other way.

In subjective cases like that I suggest listening to both sides. If the stars align somehow and they want to agree to the fence then do a lot line adjustment. Also, we hate fences but a straight fence close to the record position in an ancient subdivision may be the best evidence of the original lot line.

[dmi]

If the parties wish for the survey to be controlling, then there is only one way to do that. A call for a survey must be included in the conveyance for that survey to be controlling.

[Olin Edmundson]

My understanding is that a Boundary Location Agreement, if done properly, would initially be a binding contract between the parties. Then when conveyed, would be incorporated into the grant deed.

[dmi]

The OP asked what document would accomplish the goal of making the agreed upon survey controlling. I see no need for a boundary line agreement. Writing the survey into the deeds will take care of this issue without unnecessary expense or exposure to unwanted liability.

[DWoolley]

Olin Edmundson:

The Agreed Boundary Doctrine (“ABD”) is a unicorn in California law. The California courts apply it very narrowly. The boundary line agreement should not be used to resolve a boundary dispute with competing surveys – especially when one survey involves negligence i.e. failure to find monuments, recognize senior lines etc. Again, the ABD should not be applied to resolve boundary disputes in California. California law is clear on this point.

According to John Stahl it is different in Utah. He thinks our courts have it wrong. He is an excellent educator on the topic.

Restated, when the actual line can be determined from the description in the deed (s) and competently surveyed on the ground there is no element of uncertainty. See Martin v. Van Bergen (2012) 146 Cal.Rptr. 3d 667 – which states the same.

The core issue, behind the unfavorable view of ABD in California, is the stability of land title. The stability of land title is the basis of the wealth in the United States - if you subscribe to the logic detailed in the The Mystery of Capital by Hernando de Soto. If we, as a society, do not follow the statute of frauds requiring all land transfers to be writing, noticed, etc. we, as surveyors, create more problems than we solve. Besides, our role as land surveyors is to recognize the Agreed Boundary Doctrine, Acquiescence, Prescriptive Rights etc. and evidence the theory accordingly, not to adjudicate the issues. If the parties are adverse we are done. If they are not adverse we can offer many solutions – the boundary line agreement in the most rare of situations.

What is wrong with boundary line agreements? The boundary line agreement can be undone over the simplest of technicalities – especially if there is clear and locatable title; the may only be binding to the parties of the agreement and not successors in interest; title companies may not insure the new description; the agreement may create land title which is no longer in compliance with local planning and zoning ordinances and/or grandfathered in based on the original land descriptions (real land surveyor liability).

I have been stewing on the original post. A boundary line agreement is certainly not the right tool. Due to inordinate levels of incompetency and the generally accepted negligence practices in some areas of the state – we are certain to see more and more of these situations. Prior to this post, I have been toying with the idea of a reconveyance to the party, which included the record of survey. For example, Lot 1, Tract 1234 becomes Lot 1, Tract 1234 as established by record of survey XX-XXX. I have done this before, to get the record of survey into title, but not for this specific purpose. There are no tax reassessments, it is similar to a conveyance into a trust. That being said, I like Warren Smith’s first post for a similar purpose.

Most of the boundary litigation I am involved with revolves around negligence i.e. monuments not found or not properly considered, failure to establish the senior rights, failure to examine improvements, failure to examine a chain of title, all routine functions of a boundary surveyor. In this specific case, with two filed surveys the negligence is documented, I would file a complaint against the Surveyor 1 and the County Surveyor that allowed the survey to pass without a note – get the ol’ BPELSG staff complaint washing machine a churnin’ and get another case resolved, case closed letter. One day I will have enough to paper the side of my house.

DWoolley

[Olin Edmundson]

DWoolley

Thank you for the comments, very much appreciated. My sole purpose is to learn about the best way to handle these cases.

I've never personally used boundary line agreements in situations like the OP described where there is not objective uncertainty only cases where the line is truley unlocatable. I've also never used them when competing surveys were involved. I assumed, there wouldn't be a problem in this situation as well (if they were agreeing to the "true" property line by Surveyor2) but maybe not. As Mr. Karoly noted, it's hard to imagine a court not honoring such an agreement as the intent would be so clear.

It is interesting that you mentioned that you are in favor of Warren Smith's idea of quitclaim deeds as in the few situations where I've been involved in the past, I've used quitclaims (with the assistance of an attorney) but have more recently gotten feedback that quitclaims are not the right tool. The attorney involved with the one I'm currently finishing independently decided to use a document entitled Boundary Line Agreement instead of the quitclaim idea that I had suggested. Jeff Lucas mentioned that he once supported the idea of quitclaim but instead now favors boundary line agreements. I've also asked this question on another forum and gotten similar feedback from John Stahl who also believed that quitclaims are not the right tool. His opinion was that you shouldn't be using a title document to correct a location problem. As I recall, he mentioned a correction deed (if possible, original grantors would have to be alive) or a Boundary Location Agreement. (Of course Stahl is in Utah and Lucas in Alabama?)

What I'm also not entirely clear on is that these boundary line agreement forms, the ones I've seen at least (there is one in Lucas's book) they've got standard language in there about the purpose of it, and that it travels with subsequent conveyances, and quitclaim type of language about not being able to make any claims to anything on the other side of the line, but they've never mentioned anything like "this is being done under the Agreed Boundary Doctrine" So, if this were to be challenged, is it a given that it would be evealuated by the standards set forth in the agreed boundary doctrine cases? We are really using them for an entirely different purpose. As you mentioned we are not adjudicating these claims, we're just looking for a tool to clear things up and keep people out of court when there is a problem and both sides want to fix it.

So it seems to me that we are still collectively confused about the best approach, I am at least.

[Warren Smith]

In this case, the quitclaim would incorporate the location shown and monumented by the record of survey - releasing claim of title.

It is a unilateral agreement to the boundary - for consideration.

[Olin Edmundson]

... I have been toying with the idea of a reconveyance to the party, which included the record of survey. For example, Lot 1, Tract 1234 becomes Lot 1, Tract 1234 as established by record of survey XX-XXX. I have done this before, to get the record of survey into title, but not for this specific purpose. There are no tax reassessments, it is similar to a conveyance into a trust.

Some challenges with this would be that by necessity you would have to fully survey and resolve the entire parcel boundaries not just the line with a particular adjoiner who was agreeing. Then, you don't have any authority to change title on these other lines so it would mean that even the slightest survey location mistake could now be a title problem. Then in the reconveyance I assume you'd have some notes about the purpose of it and would give explanation about the agreement. Seems to me that you'd want to leave some trail to give explanation to someone in the future about why, all of a sudden, the legal description changed. After all of this it may start to feel like a boundary line agreement form.

[Olin Edmundson]

Again, the ABD should not be applied to resolve boundary disputes in California. California law is clear on this point.
DWoolley

It would be interesting to see this code if you can put your hands on it. If that is the case, and it is true that a boundary line agreement form would fall within the structure of the Agreed Boundary Doctrine, then we should NEVER being using them. But from the example you posted of your own work, a line of agreement form was used, was this done in error?

[E_Page]

Subjective & objective uncertainty...

There are plenty of surveyors in this state who would simply take the mathematical figure of the dimensions stated in the deed an plop it on the ground in the most expeditious manner. That's probably what Surveyor 1 did.

With two surveys showing the boundary at question, the landowners, subsequent owners of these parcels, and any government offices to which landowners might apply for various land use permits have 2 conflicting surveys and no training to determine which is correct.

If you think that the one with the greater amount of evidence, more in-depth research referenced, and greater discussion of the consideration and use of evidence is obviously the one that any reasonable person should recognize as being right, boy have I got something to show you after the judgment is issued (currently expected in December). you can also look at the Van Bergen maps and see that the surveys reflected in the poorer and apparently far less thorough maps were accepted by the court.

The fact is, most non-surveyors have no way of being certain which of two conflicting surveys is correct. If they hire a 3rd surveyor to break the tie, chances are just as likely as not that Surveyor 3 will be one that doesn't know enough to recognize that the question posed by the circumstances is beyond his expertise to answer, and the tie will be broken in favor of the incorrect survey. They could do as well with a coin flip and save themselves a few thousand dollars.

Most, if not all of the contributors to this thread are competent boundary surveyors, and if we all reviewed the maps of Surveyor 1 and Surveyor 2, would most likely agree as to which survey appears to be the most reliable. But we are all trained, and we are all students of how the courts have defined boundary principles and apply them to various combinations of evidence.

Another fact is that the landowners could get a 4th, 5th.... 10th survey performed and might end up with 6 or 8 agreeing on the correct location. But a retracing land surveyor's opinion is not binding as to the location of an existing boundary. To settle the matter with some finality, the landowners would need to do something to clarify the settled location in the records that constitute constructive notice. That means a court judgment or some action to the deeds.

That a truly competent surveyor could inspect the maps and see that one is almost certainly correct and the other obviously incorrect does not create objective certainty. Since both surveyors are deemed competent by the State to identify boundaries as evidenced by their equivalent licenses, the fact that there are conflicting professional opinions creates, at the very least, the appearance of objective uncertainty.

If the landowners agree that Surveyor 2's location appears to be the most reliable, great. They have no dispute as to where they believe the true line is. They can shake on it over their mutually recognized line and that's that. Until...

... one of them applies for a permit to add to their home and the bureaucrat in the Planning and/or Building department finds that the two surveys don't agree and refuses to issue the permit because of the "uncertainty". Or until one of the present owners sells and the subsequent owner learns that the survey verbally rejected by the previous owner and the neighbor is in a location that purports to give him more land area. Survey 2 might appear more thorough, and to the competently trained eye, appear much more reliable, but since the agreement was not memorialized, the subsequent owner, not a direct party to the agreement is not clearly bound to it.

It may very well be that after expensive litigation, a court may find that the subsequent acts of the owners who made the agreement were sufficient to place the buyer on actual notice, thereby binding him to the agreement, or that Survey 2 correctly identifies the original line based on the evidence, but why should the landowners need to do that?

From a non-surveyor's perspective, one map might appear more reliable than the other, but they can't truly know that, and a RS on file that has not been repudiated in court, discredited by an enforcement action, or rejected by a written agreement adds confusion and uncertainty to the record.

I think that Olin's approach is the best for a (competent) surveyor to follow. If the landowners want to agree to the filed survey that appears to correctly identify the boundary location, then recommend a BLA to memorialize that recognition and to remove the uncertainty from the record the incorrect map introduces. This cannot be a violation of the SMA or a means to bypass the LLA ordinances because it is not being used to create a new line or parcel, or to move the line from it's original position. It is being used to add certainty to the record.

If the landowners want to agree to a location that the (competent) land surveyor believes is incorrect while he also believes that the other map correctly identifies the true line or that the true line can be located, then recommend a LLA.

For a properly executed and recorded BLA to be rejected by the courts or by some regulatory agency, it must be challenged in court. It is extremely unlikely that one of the parties to the agreement would do so. It is very unlikely that a subsequent purchaser, having both actual and constructive notice of the agreement prior to purchase would do so, or if they did, very likely that the suit would be dismissed by summary judgment because of that notice. The contract issues surrounding the conveyance would undermine the standing to even get to the boundary issues.

If written and recorded, it is very unlikely that a regulatory agency would question the validity of the BLA. And unless the BLA had been used to effect an illegal subdivision or to subvert zoning, an agency would probably not have the standing to challenge the BLA in court.

I agree with Dane that to make the RS that the landowners wish to agree to a controlling element for the common boundary, that it needs to get into the descriptions on the deeds. A properly and completely executed BLA should include QCDs that disavow or convey any interest on the other side of the agreed line to the other party. Exchanging QCDs without recording the agreement as a means of explaining the reason for the QCDs avoids the likelihood of a later challenge or charge by a local agency of having executed an illegal subdivision or an illegal LLA.

Over the past few years, Dave Karoly has studied the relationship of boundary and title, and specifically the applicability of BLAs and LLAs more than anyone I know. I believe that he has developed into, quite possibly the most knowledgeable surveyor in CA on this subject. If I were seeking advice, I would pay particular attention to what Dave has to say.

I don't think that CA law is as crystal clear as Dave Woolley asserts. I also think, Dave, that you are getting hung up on the concept of what level of uncertainty is sufficient. Not to completely rehash my words above, but the fact that 2 surveyors have filed maps showing conflicting locations, added to the fact the high number of surveyors who don't recognize their own incompetence as to advanced boundary matters, making it likely that many would agree with the incorrect survey, creates the presence of, or at the very least the appearance of objective uncertainty. CA law used to very much favor subjective uncertainty. The more widely read recent cases seem to favor objective uncertainty, and cases can be found that seem to provide no leeway in that regard, but on whole, I think the law is a bit more murky and unless one has studied it to the extent Karoly has, it's tough to make sense of what the actual current state of the law with regard to BLAs is.

We need to keep in mind not only the purposes of the administrative remedies, that a LLA is to move a boundary from it's present location to another location, and a BLA is to provide clarity of definition to the true location, but we need to keep in mind who the law is made to apply to. It is primarily applicable to landowners, and secondarily to anyone else who has some level of interest in the land, be it regulatory or professional. One of the most basic purposes is the avoidance of unnecessary litigation.

If we view it just from the narrow perspective of a "competent" boundary surveyor, what we can discern from existing maps, and what we can prove in court if needed, then it can be very difficult to say there is objective uncertainty because we hold that to a very high standard. But bear in mind, these remedies are not primarily for us. We have to stick with the primary why and who. Who: The landowners (present & future). Why (BLA): To add clarity, and remove uncertainty (real or perceived), and to avoid litigation.

If the surveyor believes that the line the landowners want to settle on is the true line, then an LLA is not the proper vehicle because nothing is being moved. That leaves litigation, and that's a poor avenue of first recommendation.

[Dave Karoly, PLS]

I'm not a fan of bunging up the title records in order to fix a location problem. That's like driving screws with a 10 lb hammer or changing the oil in your car because the transmission is acting up. I'd rather see them do nothing and just quietly implement Survey 2 than start trying to fit a round peg in a square hole. Think of all the entities that have to be involved to change the title even though the title isn't changing.

Simplifying a bit, assume A owns Lot 1 and B owns Lot 2. There is no question about title, A owns Lot 1 wherever it is located and B owns Lot 2 wherever it is located. There is no need for A to transfer anything to B (which would be a major project involving agency processing and lender approval and could fall through at any step along the way, besides B thinks he is giving up something valuable, that's just human nature). Then Surveyor A shows up and stakes the lot line 10' into B's occupation (at this point he may or may not be right as far as anyone knows). Then B hires Surveyor B who does a much more thorough job uncovering evidence and he stakes the boundary which just happens to line up with the old occupation. Both surveys are filed.

Now say A sells Lot 1 to A2 (the Deed says Lot1). B approaches A2 with a bottle of French wine and carefully explains the situation to A2. A2 just happens to be very reasonable (he's Canadian) so he measures across his backyard and low and behold fence to fence is very close to the lot record width. So he agrees that Survey 2 is obviously correct and agrees to sign whatever is necessary to make it all legal.

So in this scenario what conveyance document will cover it? None, I say because there is nothing needing to be conveyed. I suppose A2 could sign something releasing any claim he may have by virtue of Survey 1 but that probably couldn't be recorded. They could do nothing which would be better than transferring fictional strips here and there raising the eyebrows of lawyers, lenders, the planning department, etc.

If we stop treating location problems as title problems it solves a lot of problems like little phantom strips of land everywhere.

A conflict in the evidence of the lot line location is a location problem. Let's just say Survey 1 is totally bogus, but it is still evidence until a reasonable mind rejects it. Let's say Survey 2 is the greatest boundary Survey ever done yet it is still just evidence until a reasonable mind declares it is the correct answer and then the supposed title issue disappears.

A title problem would be a situation where the lot line location is definitely known and Lot 1's owner is occupying 15' of Lot 2 or Lot 1's owner expected to receive Lot 1 together with 15' of Lot 2 but the Deed only says Lot 1. The first scenario can only be cured through a successful A.P. claim or conveyance from Lot 2. The second scenario has to be cured by reforming the Deed if the grantee can prove the description does not reflect the true intentions of the parties, or a corrected Deed from Lot 1's grantor or maybe the grantee is just out of luck and has to move back to the lot line.

Utah and California are virtually identical with respect to the fundamentals, it's in the details where the variation occurs.

I know everyone wants to file some bulletproof document to cure all the ills here but anything can ultimately be ignored. Even if they get a piece of binder paper and write "We agree Survey 2 is a true and correct survey of our common boundary in consideration of settling our uncertainty, signed A & B" and witnessed by a couple of disinterested neighbors, then they each keep a copy in their personal records, that would at least be compelling evidence in case a future neighbor gets ideas about claiming the strip.

I have personally heard a highly respected land surveyor say he could ignore a properly signed, notarized and recorded 60 year old boundary agreement because he didn't like the way the lines were run.

[Dave Karoly, PLS]

I begin to feel like what we are saying is literally 2/3rds of land Surveyors are woefully undereducated in the knowledge required to their job and the only thing they know how to read or can even recognize is a Deed description so we have to somehow hammer a location problem into a Deed so that maybe, just maybe they will not bollox up the job the next time.

[LS_8750]

Point well taken Mr. Karoly, Mr. Edmundson, and Mr. Page.

Rest your fortitude on the survey. That is our job. BLAs are for amateurs.

It sucks to see shitty surveyors and their attorneys nibble away at the legitimacy of a fine work product, but we all gotta eat.

[DWoolley]

DWoolley wrote: Again, the ABD should not be applied to resolve boundary disputes in California. California law is clear on this point.
DWoolley

Olin Edmundson wrote:It would be interesting to see this code if you can put your hands on it. If that is the case, and it is true that a boundary line agreement form would fall within the structure of the Agreed Boundary Doctrine, then we should NEVER being using them. But from the example you posted of your own work, a line of agreement form was used, was this done in error?

Olin Edmundson:

A boundary line agreement is a formal document prepared to memorialize an agreement, when the parties are not adverse, to a line when the proper elements apply i.e. uncertainty etc. Alternatively, the Agreed Boundary Doctrine is a legal theory that is evidenced, argued and ultimately, adjudicated. The land surveyor does not apply a legal theory in the drafting of a document, any document. At best, we evidence the theory when the parties become adverse. If the parties are not adverse the land surveyor has several legal remedies available to fix problems – none of which require the land surveyor to argue a legal theory. Again, the proper use of a boundary line agreement, a remedy, only applies to the narrowest of circumstances.

Although I have heard land surveyors, on occasion, told their clients where the line is located “based on adverse possession”. It is wholly inappropriate for a land surveyor to determine a boundary location based on a legal theory i.e. adverse possession, ABD, acquiescence, prescription etc. If the parties are not adverse, there is no need to research or apply a theory, any theory. It is equally inappropriate for a land surveyor to determine a line’s location based on the Agreed Boundary Doctrine. That is not a land surveyor’s role.

In the example map I provided, there was a break in the chain of title, which occurred during a foreclosure and re-conveyances prior to 1972, and the subsequent title grants out overlapped by approximately 9’ and there was no discernible senior right, if I recall correctly. The better question would have been how I took a straight line that overlapped in title by 9’ and made a line that had two angle points. How does that work? Rhetorical question. However, the better question.

As to your request for a citation to “code”, I am hopeful I distinguished the difference between remedy documentation and a legal theory.

In Martin, the Court said that even though there were conflicting surveys – three in total – there was an accurate survey of the properties establishing the proper boundary line and removing the required element of uncertainty. Specifically, the Court stated “”…a boundary is not uncertain if it can be ascertained by an accurate survey”. In fact, a fourth land surveyor testified as to the quality of the surveys and said he wanted to provide his own survey. Rightfully, the Court rejected this preposterous idea (typical surveyor, “ah, let me waste more time and money” and hose the public to produce a ½” question) – the issue was over enough feet to contain almond trees. The first negligent surveyor, quell surprise, had overlooked monuments the two subsequent surveyors had found and agreed upon.

Until the BPELSG staff begins a program of enforcement, rather than compliance, these problems will continue to multiply exponentially. I recognize the double edged sword effect on the red herrings they occasionally chase out and financial downside of the poor opinions by some of their technical experts. However, something must be done. In the last couple of weeks, I had another honest land surveyor call me, breaking down and losing his composure, because his honest business is going under. Working out of his house, he had reduced his rates to only wages and benefits - he is still losing jobs to lower bids. He is a person that will dig up every monument, research the chain of title and file a record of survey every time it is required. The demise of honest, competent land surveyors is the result of years of the BPELSG staff seeking compliance rather than enforcement with stiff fines, public rebuke and revocation. I think Dave Karoly may have been generous when he speculated 2/3rd are negligent and/or incompetent boundary surveyors in some jurisdictions. I know of several other honest businesses barely hanging on during this boom period. One hiccup in the economy and they are all toast.

As for Clark’s “we all gotta eat”, hogwash. These scofflaws are not scrambling for food, no sir, those I know personally have homes in nice neighborhoods, boats, houses at the river or lake, Land Rovers, private school, and ultramodern equipment. They can operate with impunity.

Lastly, if there is anyone questioning his or her own competence I will offer a quick pass/fail test. If your practice is to take a CAD drawing of a deed and/or underlying map and rotate it to found monuments to resolve the boundary, you are doing it wrong. It is especially obvious when the surveyor proceeds to “call off” the remaining monuments - sometimes set by the same underlying map.

Another test, if you go from data collector coordinates to CAD, no adjustment, there is a problem.

DWoolley

[steffan]

DWoolley wrote:
In Martin, the Court said that even though there were conflicting surveys – three in total – there was an accurate survey of the properties establishing the proper boundary line and removing the required element of uncertainty. Specifically, the Court stated “”…a boundary is not uncertain if it can be ascertained by an accurate survey”. In fact, a fourth land surveyor testified as to the quality of the surveys and said he wanted to provide his own survey. Rightfully, the Court rejected this preposterous idea (typical surveyor, “ah, let me waste more time and money” and hose the public to produce a ½” question) . DWoolley

If I recall correctly, the 4th surveyor you refer to was Van Bergen's expert witness. As I recall, he was set up by Martin's attorney in Martin's successful attempt to undermine the idea of the boundary being uncertain. The "4th surveyor" (i.e. the expert witness) conceded while on the witness stand under cross examination "that, if asked, he could accurately survey the boundary between the properties." This, after the same expert witness declared that he felt the boundary was uncertain due to there being existing surveys in conflict. This was simply a clever play by Martin's attorney that Martin's expert witness fell for hook, line and sinker. I'm not sure the surveyor was marketing himself for work, but more rather simply fell for a baited question.

DWoolley wrote:
The first negligent surveyor, quell surprise, had overlooked monuments the two subsequent surveyors had found and agreed upon. DWoolley

If I recall correctly, one surveyor had set the quarter corner in question at a location based on what he felt was a recovered original oak bearing tree. Another surveyor set the quarter corner at proportionate distance. The last surveyor accepted the proportionate corner position.
The court chose to accept the proportionate corner position as the true line, perhaps in part because the surveyor who felt he had found an original BT had passed away and was not available to defend his position at trial. I personally would love the opportunity to evaluate the corner evidence on site. In fact I recently passed through Pasa Robles while on vacation with my family. The wife and kids unfortunately would not entertain the idea of one of dad's side trips.

Of note that fence line of which Van Bergen desired to be an agreed boundary, did not coincide with either the proportionate quarter corner or the claimed original 1/4. Van Bergen's expert witness would not offer an opinion on either of the survey positions, opting only to declare that because the recorded surveys were in conflict, that he felt the boundary was uncertain. Again, Martin's attorney tricked him into stating that the line could be determined, thereby putting a question onto the line's uncertainty.

I don't believe the "first negligent surveyor" was negligent at all, but rather had felt he had found an original quarter corner. Unfortunately this case did not focus on whether the oak tree was or was not an original BT which in my mind was the most important evidence missing from the trial.

[DWoolley]

steffan:

Although immaterial to the case law that now binds us, interesting on some level. Not dissimilar to a recent discussion with a colleague in which he explained to me how the Court messed up on a recent decision - good conversation with a glass of sweet tea while sitting on the porch.

It would seem to me there would have been plenty of discussion about the first survey. I hope my surveys stand up long after I am dead - isn't that the point?

Thank you for the peripheral perspective.

DWoolley

[Dave Karoly, PLS]

Martin v Van Bergen does not accurately state the law on uncertainty in California. Whether or not it can be surveyed is not relevant to agreed boundaries. The Supreme Court has not spoken on this since Bryant and in that case they declined to overturn the subjective standard. There is at least one subjective case that passed appellate muster since Martin that involved a fence v. a survey, the fence won because there was direct evidence of mutual uncertainty and mutual agreement as required by Bryant in fence cases.

So the one thing (one short paragraph) that might be of use in Martin is wrong. The rest of the case is useless as far as I'm concerned.

[Olin Edmundson]

DWoolley
Perhaps I misinterpreted your statement or you misinterpreted my question. In any case, I have no confusion about the difference between the Agreed Boundary Doctrine as it may be applied by the courts and a line of agreement as it may be used by parties that are not adverse. Obviously surveyors are not to be making final determinations as to whether the ABD may apply to a particular situation. This discussion is about remedies. I'm going to hang this up as there doesn't seem to be much progress being made (at least not an overall consensus) but I'll throw out one more if you care to chime in. In what rare cases are lines of agreement an appropriate remedy, in your opinion?

[steffan]

It is wholly inappropriate for a land surveyor to determine a boundary location based on a legal theory i.e. adverse possession, ABD, acquiescence, prescription etc. If the parties are not adverse, there is no need to research or apply a theory, any theory. It is equally inappropriate for a land surveyor to determine a line’s location based on the Agreed Boundary Doctrine. That is not a land surveyor’s role.
DWoolley

Not to pick on Dave and I know it looks like I'm cherry picking, but the above statements seem worth debating.Isn't it possible that much of all boundary resolution is based on some legal "theory" as you call them. For instance if tomorrow I had to locate the east half of the SW. 1/4 of Section 18, would I possibly be amiss if I didn't consider the legal "theories" presented in Wood v Mandrilla and instead partioned based on aliquot breakdown? Don't I have a responsibility to consider the "theories" in precident case law, particularily considering very few boundary law principles/(theories?) exist in the statutes? How else do I re-establish or establish boundaries as the LS Act so empowers me. After all isn't there usually only one property boundary whether it be based on measurement or a legal "theory"?

[Dave Karoly, PLS]

Bloxham is much more useful to the Land Surveyor than Martin...

“‘Lines actually run and marked on the ground may be proved by any evidence, direct or circumstantial, competent to prove any other disputed fact, and where markers of the original survey have been destroyed, secondary evidence as to the authenticity of their relocation is admissible.’ California recognizes these rules to be sound.” (Chandler v. Hibberd, supra, 165 Cal.App.2d at p. 55, 332 P.2d 133.) The Saldingers have not provided legal authority establishing that a monument “called to be on the Rancho line by common report” of a number of documents could not be considered by surveyor Jensen in locating the Rancho line established by the original survey. -Bloxham v. Saldinger, 228 Cal.App.4th 729, 745 (2014), 175 Cal.Rptr.3d 650

[mpallamary]

I have just completed one of these and over the years I have tried to post it, but I have been told I cannot because I cannot post copies of recorded surveys.

[Lee Hixson]

I have just completed one of these and over the years I have tried to post it, but I have been told I cannot because I cannot post copies of recorded surveys.

This stumps me. Seems to me that, upon being filed, a map is now in the public domain and thereby open to public examination and evaluation, thus becoming an excellent learning tool for us. It's tantamount to an attorney's forum disallowing the reprinting of a court decision.

[Jim Frame]

I have just completed one of these and over the years I have tried to post it, but I have been told I cannot because I cannot post copies of recorded surveys.

From the rules of this forum:

It is the intent of this forum to provide education for the profession through discussion. It is recognized that a work product is often relevant to meaningful discussion. The posting of a work product is intended to provide education and meaningful discussion and not to embarrass or shame the author of the work product, client, or processing jurisdiction.

I don't see anything in the rules that prohibit the posting of recorded maps, as long as you're not doing it in order to embarrass or shame someone.

[Lee Hixson]

"...as long as you're not doing it in order to embarrass or shame someone."

There's the rub. There's a thin line between "critique" and "embarrass." Just this week I ran across a RofS that did nothing at all to address the adjoiners to the subject parcel. I had to tell my potential client that the map in question--that purportedly surveyed his parcel a decade ago--was essentially useless to me, that I would have to start from scratch. In fact, more than just from scratch because I see the distinct potential for gaps or overlaps to deal with. Now, if I posted this map and pointed out its many flaws, surely there would be someone who could consider it embarrassing. I don't see any way around this major Catch 22.

[Peter Ehlert]

Mike, I see no reason why you can not post your own map, "...as long as you're not doing it in order to embarrass or shame someone."