Boundary Line Agreement: Let Us Agree

[LS_8750]

Dane Ince in a currently parallel thread posted some verbage from Clapp v. Churchill, 164 Cal. 741, where it was cited that "the doctrine of an agreed boundary line and its binding effects upon the conterminous owners rests fundamentally upon the fact that there is, or is believed by all parties to be, an uncertainty as to the location of the true line."

I find the use of the word "uncertainty" perplexing. Uncertainty means just that, the absence of certainty.

Certainty as it applies to boundary surveying carries with it the highest standard of evidence, even higher than the "beyond a reasonable doubt" standard. Certainty is the absence of doubt, the facts exist on the ground as they are described in the deed.

So it appears to me that unless the line in question is monumented exactly like it is described in the deeds, maps, etc., and you find every original non-disturbed monument, there will always be uncertainty.

Where do "professional judgement" and "certainty", or "uncertainty" cross paths? As a professional civil engineer I have proven Newtonian mechanics to rely on to bolster my professional decisions and reinforce my certainty. As a professional land surveyor, I have the law. As I see it, my use of "professional judgement" in the land surveying world leaves me naked, exposed to that very lack of certainty that only the Newtonian, or reason based, motherly comforts of hard science can provide. The law is fine for use as a beach umbrella on a hot sunny day, but that beach umbrella won't do me any good in the Arctic.

Uncertainty is the Arctic. The "beyond a reasonable doubt" standard, or the highest standard we apply in our judicial system, is the one standard that begs the question of whether, or not, "uncertainty" exists. All other standards of evidence inherently embrace, or even expect, the potential that uncertainty exists within. We as land surveyors expect uncertainty like the lizard expects the sun, or the penguin expects the iceberg. Certainty is only a myth in the boundary surveying world. Uncertainty, in its real sense, is actually the pliable substance that our profession uses to mold reasonable conclusions based on relevant evidence.

Because of this, I think the BLA should be a tool for us to be able to more freely apply when the situation of "uncertainty" arises. I am a professional land surveyor. If I am confident enough to drive an iron pipe in the ground then I have tamed that animal inside me that questions my "certainty". On the other hand, when the evidence leaves some "reasonable doubt" as to the location of my corner, then let me use the BLA as an appropriate method to mediate between neighbors who just want to reach an agreement.

Knowing the BLA does not transfer title, where do we draw the line between our professional opinions based on evidence recovery and that degree of uncertainty that allows us to employ the Boundary Line Agreement?

The example of the un-recovered quarter corner, or maybe the center quarter corner illustrates the point. When you resort to a proportionate breakdown you are essentially saying you have no idea where the original corner was. By resorting to this method of corner recovery you are now certain that you have "uncertainty" as to the location of the original corner.

Given this logic you are now in a situation where the BLA would be a valuable tool to employ.

Why is it so rare that we actually utilize the Boundary Line Agreement in our profession?

[Dave Karoly, PLS]

"When a man has had a training in one of the exact sciences, where every problem within its purview is supposed to be susceptible of accurate solution, he is likely to be not a little impatient when he is told that, under some circumstances, he must recognize inaccuracies, and govern his action by facts which lead him away from the results which theoretically he ought to reach. Observation warrants us in saying that this remark may frequently be made of surveyors [and engineers]." -Justice Thomas Cooley.

[E_Page]

Good questions, but I think that you can find some of the answers yourself fairly easily.

How certain are you of your definition of "certainty" as it applies to evidence?

Is "certainty" a binary choice or a relative term?

Does "certain" appear on the scale of evidentiary standard? (i.e.: Beyond a Reasonable Doubt, Clear and Convincing, a Preponderance, a Scintilla)

Before further discussion, do a couple of hours worth of research on certainty as an evidentiary standard (where on the scale it is, if it is there at all) and see how that affects the questions you ask, or which questions you ask.

[Dave Karoly, PLS]

Evan-
Clear and Convincing evidence is a reasonable certainty therefore the lesser standard of a preponderance (enough to tip the scale one way) includes some uncertainty, I would think. Sometimes I have difficulty applying the evidence standards to the types of boundary evidence I encounter, though, especially when there is little of it available.

Suppose you find the original marked stone with most of the original bearing trees. That would be clear and convincing, I would think, hence certainty. What if the stone is buried under two feet of fill and there is a tarnished brass cap marked for the corner nearby (dated several years ago), now what?

Suppose you only find a pipe with tack in wooden plug (no tag) of unknown origin with fences running four ways from it. The DP solution (say from verified original corners 4 ways) is 10' away to the northeast. It seems to me the property owners could claim uncertainty in that case and woe be to the Land Surveyor who goes and sets a new shiny capped monument.

-Dave

[E_Page]

Dave,

"Clear and Convincing" is actually between "A Preponderance" and "Beyond a Reasonable Doubt".

As far as I know, it is the highest level of proof actually applied to any type of boundary evidence ("beyond a reasonable doubt" having been stated in the 1973 BLM Manual notwithstanding).

For most boundary matters, like other civil matters, the standard applied is "A Preponderance".

I don't know for absolute certain, but I'm reasonably certain that showing "uncertainty" of a boundary line would probably have the "Clear and Convincing" standard applied to it.

In your 1st example, I see different principles in play as opposed to which monument is more certain. You describe a scenario where the original corner position is found by a clear and convincing set of evidence (orig mon & BBTs), and another monument (old but not original) purports to mark the corner at some other nearby location. You can probably prove it to be the monument in its original location as set according to some record by Clear and Convincing evidence as well. The job now is to determine to which point current boundaries were related to when created. More investigation to determine which monument the Preponderance of the evidence supports for your survey.

In your 2nd scenario, it seems to me that upon finding the IP/wood plug/tack with no record, you now have a couple of new directions to take your investigation. Do any of the local surveyors know anything of its history, is there an unfiled map or perhaps some field notes in the possession of a local surveyor that may shed light on the origin of the point? Are there any long-time local residents who might remember who set the point and when?

If those avenues turn out to be dead ends, I wouldn't automatically reject the corner as a possible reasonable perpetuation of the original corner. In many cases, I would bet that if you performed a DP but then were able to find the original corner position, 10' of positional difference wouldn't be so uncommon.

I'd look to topo calls (if made) and other evidence of the lines run to attempt to verify one position over the other before accepting either. With no evidence of the original survey being available to support either, and if local surveys and boundaries were established relative to the no-record pipe, I'd probably accept it as the best evidence even though it is only perhaps somewhere between substantial evidence and a scintilla of evidence of the original corner position.

If there were undisposed PLSS land adjacent to the parcels of my survey, I'd take all my evidence in to the BLM, review it and get their opinion of what they would be likely to do with it before I hung my hat on any position. they might think that my scintilla is not substantial enough.

Maybe I should rephrase that...

[Dave Karoly, PLS]

Evan-
Suppose you are an expert in a boundary lawsuit.

Part of the dispute is a non-record 2" iron pipe with wood plug and tack (no tag). A well known Surveyor with good reputation practiced in the area in the 1950s and he set a lot of those but you can't find any unrecorded survey or notes for this one. Suppose that your opinion is that the pipe represents the best available evidence of this particular corner (as opposed to a calculated location from the Deed).

How would you testify? Would you use legal terms such as "preponderance of the evidence" or would you lay the evidence out for the court (through testimony and exhibits) and say your opinion is the pipe is the corner?

-Dave

[E_Page]

I consider the level of certainty as I form my opinions. In testimony, I present the evidence I know of and explain why I may have given certain evidence more weight than other evidence, or why I accepted or rejected certain evidence. It's the court's place to determine what the appropriate evidentiary standard is and whether or not the evidence I present meets that standard. I'm pretty certain a judge would not allow a witness, expert or precipient, opine as to whether the jury should view the evidence as meeting a certain standard, nor do I think that a judge would appreciate having a witness define the credibility of presented evidence for him or her.

"Objection! Witness is drawing a legal conclusion." The purpose of my testimony is to present my opinion of a situation and to present the facts that the opinion was based on. I cannot testify that the combination of facts meets a certain evidentiary standard because the judge or jury are supposed to come to an independent conclusion as to whether the facts as I've explained them mett he appropriate standard. If I tell them they met a certain standard, I am potentially supplanting their independent judgement with my assessment. I can't see a judge allowing that.


With your 2" IP, you would testify that it is the best available evidence of the corner that you were able to find, and explain your basis for that opinion. I don't know that you would be able to testify as to the reputation of the old local surveyor. You may be able to testify to your experience following his work in other locations and let the judge or jury draw their own conlusions as to the quality of the other surveyor's work based on that.

[dmi]

I am still looking to see how the courts have defined "uncertain". It appears that the "uncertainty" is not a quantity but rather a quality of belief held by the parties to the agreement.

As far as an opinion expressed by the surveyor that a boundary location is uncertain, I would suggest that your opinion ought to be based upon substantial evidence, at least or else it is just speculation.

[Dave Karoly, PLS]

I agree, there needs to be some evidence that uncertainty existed.

The most convincing would probably be an old Survey. Although the old Survey was inaccurate or improper, the property owners that relied on it could be said to be uncertain.

[Propst]

In the initial post I notice that these two entirely different ways of looking at a problem seem to be equated.
The "Doctrine of Agreed Boundaries" is a legal doctrine used by the courts.
The "Boundary Line Agreement" is a legal document the descriptive portion of which is prepared by surveyors.
Or did I miss something?

[dmi]

[font='Arial','sans-serif']As cited in Mello v Weaver, 36 Cal.2d 456 [/font]
[font='Arial','sans-serif']And in Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651], this court said: "The belief of the parties for the long period of thirty years following the location, as shown by the findings, is a sufficient reason for the application of the doctrine, so far as that state of mind is essential thereto. The fact that it was founded on a mistake always appears, and must appear, else there would be no occasion to invoke the doctrine."[/font][font='Arial','sans-serif'] [/font]
[font='Arial','sans-serif']Tom, what is you opinion of under what circumstances a surveyor may prepare a boundary line agreement?[/font]

[dmi]

As cited in Mello v Weaver 36 Cal.2d 456

And in Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651], this court said: "The belief of the parties for the long period of thirty years following the location, as shown by the findings, is a sufficient reason for the application of the doctrine, so far as that state of mind is essential thereto. The fact that it was founded on a mistake always appears, and must appear, else there would be no occasion to invoke the doctrine."

Tom, under what circumstances may a surveyor prepare a boundary line agreement ?

thanks for your help

[LS_8750]

Thanks Dane and Tom. That is what I am after exactly. Defining "uncertainty". The agreed boundary doctrine is a tool of the courts. The boundary line agreement is or should be a viable tool for land surveyors, attorneys, and those having vested interest in the subject property.

Exactly under what circumstances are we in position to recommend the boundary line agreement, in order to avoid the courts, de minimis?

[Propst]

The "Doctrine of Agreed Boundaries" may be applied by the courts to conclude a dispute on the boundary location.
The "Boundary Line Agreement" may be applied by the adjoining landowners to conclude an uncertainty in the boundary's location.

The first is applied by others based on a dispute, the second entered into voluntarily by parties in interest based on agreement.

I was just afraid that some folks may have been improperly conflating the two.

I think a LLA, if possible, is a better resolution than a BLA, but in any event we present the various methods of resolving the issue to the client and see which they prefer. Dont forget we'll also be working the Title company and the attorneys to resolve it regardless of the method chosen.

As to the "Uncertainty" question, see Brown's BCLP (5th & 6th) section 3.10 where they present the scenario of 3 surveyors looking at the same fact set and coming to 3 different conclusions. Its going to be a judgement call, a statement of professional opinion.

As to avoiding the courts, that is up to the landowners. If they can come to agreement between themselves, they can situate (or even re-situate) the boundary between themselves. If they cant, that's what the courts are for. Mediation or arbitration is another method, and the court is going to send them there first anyway.

[E_Page]

The mere fact that the landowners do not know where the line exists does not mean that it is uncertain. Did they make a reasonable attempt to ascertain its location? Usually, a reasonable attempt means getting a surveyor involved.

If two or more surveyors, each exercising reasonable care and applying reasonable professional judgment cannot agree on the location of the line in question, then that would probably establish the requisite uncertainty for a BLA to be executed.

[LS_8750]

Tom, Evan.... Thanks for corralling this line of thought. Exercising professional judgement is what we do, I am no stranger to it.

My experience has not brought me into hard core boundary disputes, yet. I test my thoughts, my muses, my what if scenarios based on actual jobs I'm working on, through this discussion forum. And this topic came to light from my reading Of "The Pincushion Effect" (another post) recently.

Incidentally Tom, how do you do a lot line adjustment on a line that in your judgement you cannot ascertain its location?

Cheers,
Clark