Old Fence not agreed boundary case

[LA Stevens]

New published case Martin v. Van Bergen filed 9-6-12.

[btaylor]

That was a good read. Thanks for posting that.

[Sunburned_Surveyor]

Maybe I'll get an article on the case into Footsteps.

Landon

[cals6406]

"In 2005, three surveys were performed to establish the boundary between

the parcels. ................. The existing fence is not on any of the surveyed boundaries."


That's sad.

[btaylor]

It clearly hinges on a couple of things: one, the court seemed to easily reject the survey that created an uncertainty in the line. They mention that the deceased surveyor used a wrong monument to define the south 1/4 corner. There was a 3rd expert used, who did not do a field survey, who merely testified there were differing opinions. Interestingly, he did not appear to offer an opinion on the south 1/4 corner.

Also, aside from all this, for the court, there is a clear need for the adjoiners to know there is an uncertainty ahead of time, and agree to use the fence as an arbiter.

I will remember this case. It is a good one.

[LS_8750]

Funny how the expert witness surveyor claimed inherent ambiguity with the line's location based on conflicting surveys then said he could accurately locate it himself. Thus inherently saying the line can be located and inherently contradicting himself, as the judge pointed out.

I also thought the old lady's testimony was interesting. Council did not seem to pursue exactly how she believed that old fence line was the property line in the 1940's. As a surveyor I would have sat with her all day and looked through photo albums and the whole bit to understand why she thought that fence was the PL. Just to understand and note that there may exist some unwritten rights.

The outcome is reassuring.

...."if Kirkegaard's conclusion that mutual mistake is sufficient to show 'uncertainty' was ever good law, it is no longer." I like that.

I am reminded of Mr. Lucas', The Pincushion Effect. I wonder if there may be some editing going on for future editions, based on this sort of evolving law.

[Dave Karoly, PLS]

This is not surprising given that the California Supreme Court raised the burden of proof in the Acquiescence and Implied BLA Doctrine so high to be almost unachievable in Bryant vs Blevins. It could be a very plausible theory of the boundary (especially since it has been like that a very long time) but you just can't meet the burden of proof.

The Attorneys should realize this and encourage the parties to settle this type of dispute by other means because the Court System certainly can't help them.

The surprising part is this type of case had to go all the way to the Appellate Court.

The original purpose of these doctrines was to supply a way to resolve boundary disputes when the original parties are dead and have been dead for many years. That is the "implied" part but the Supremes in their infinite wisdom pretty much made it impossible to prove the theory. The Bryant case has an unusually scathing dissent.

[LA Stevens]

I would like to see the survey maps. If anyone has access to the maps, it would be great to have them posted.

Maybe the fence had many angles and the boundary was supposed to be straight?

I understand from a surveyor who researched the Bryant v. Blevins, that the fence between the parties appeared to be a fence of convenience and was one of the reasons the case was adjudicated in that fashion.

[dmi]

Larry, I'll send em to you. The funny thing is the survey everyone claims is wrong shows the enroachment.

I happen to like Bryant v Blevins. It is nice to know that folks can't unilaterally usurp your property rights just cuz their is a pos fence someplace.

[mbstanton]

I've attached some backup maps relating to this case (picture is worth a thousand words).

There had been 4 different surveyors on the property (Horn, Steward, King and Vaughan).

This case simply reiterates prior law on agreed boundaries
1) You can't have an "agreed boundary" without an agreement.
2) You can't agree to a line unless it is indeterminate from the record. In other words you can't agree to a line which can be determined on the ground by an "accurate survey".

3 of the 4 surveyors agreed on the north-south center of section line, based on a single proportion of the south 1/4 corner. The 4th surveyor (Vaughan) actually found the original white oak bearing tree and used that to re-establish the south 1/4 corner. For whatever reason, the Appelate court decided not to accept Vaughan's determination of the S 1/4 corner based on the bearing tree. He died in 2007 and was not able to defend himself in court. The court held the line previously established on the ground even though the methods used to establish the south 1/4 corner were questionable (single proportion, ignoring BT).

Mike Stanton, PLS 5702

[pls7809]

Not really a part of this discussion, but does anyone else notice the Surveyor's Statement for RS 04-176, RSB 92/44?

"This map correctly represents a survey made by me or under my direction and based on record data in conformance with the requirements of the..."

That statement is not per 8764.5. What does "...and based on record data..." mean? No field survey? It shows he set monuments, so how would there be no field survey?

[btaylor]

Wait a minute. So Vaughan appears to actually retrace the lines properly, and is the one who is erroneous here? Am I missing something?

[Dave Karoly, PLS]

I am just a voice screaming in the wilderness.

BvB was most properly an original boundary case. The boundary framework the dividing line was run from was largely a 1970s fantasy.

Unfortunately a Surveyor chose to run a boundary where it never was located and the Supremes latched onto that to make bad case precedent.

[dmi]

I am well aware of the deficiencies in B v B. Briscoe points out the short comings of the case,lots of folks don't like it. There is plenty wrong with the case, but I cannot see defying the Supreme Court of the State of California. In some sense the court DID PUNISH owners for not providing CONSTRUCTIVE NOTICE. BY GOSH and by golly, if you and your neighbor are gonna cook up some new location for your common line HEY TELL THE REST OF US WILL YA SO IT IS EASY FOR US TO GET IT RIGHT LATER.

[E_Page]

It seems to me that the attorneys missed the issue, which was not Agreed Boundary, but was Practical Location. Agreed boundary requires a dispute, uncertainty as to the location of the true line, and is an agreement to a particular marked boundary whether it be on the true boundary or not, redefining the true boundary to be on the agreed line.

Practical Location is the marking of a boundary as a result of a good faith attempt to do so. Scovell (Van Bergen's predecessor) testified that her family and Martin's built the existing fence together and that Martin's predecessor assisted in planting what would later be Van Bergen's almond orchard within the disputed area. That seems quite strong evidence of an agreement.

But was it a good faith effort to establish the correct line? I don't know, there wasn't enough evidence to that effect discussed in the ruling. Had the attorney for Van Bergen considered that doctrine, they may have found or recognized such evidence. Scovell recalls that Martin's predecessor had surveying experience, but could not remember whether or not the neighbor used that experience or any equipment to verify the line on which the fence was built.

The case didn't seem to center at all upon whether the Vaughan or the Stewart and King surveys should be held to, but seemed to only point to them collectively to show an inherent uncertainty of the line location.

If you've followed John Sanders' work, you know that he typically measured with a transit and tape as well as or better than many surveyors do today with total stations and GPS. You could follow him in several steep, brushy, wooded sections and find very few to no material discrepancies. It seems to me that he was well above most of his contemporaries in the quality of his measurements and the accuracy of his maps.

But, you could also follow him through those same sections and see where he rejected many long existing monuments, including many set for the first divisions of those sections, in favor of new monuments set in the mathematically "correct" positions. Where the residents uniformly adopted his monuments over the previous ones, or where he was the first to divide the section, it made the job easy. Where that uniformity did not exist, it created problems. If the BTs that Vaughan found still existed, Mr. Sanders could have verified them as original, or probable original GLO BTs.

Which brings up another problem in the Van Bergen case. They cheaped out on their use of experts. Vaughan was no longer around to testify. Sanders was not hired to perform a survey to verify the others, but apparently only to opine that differing surveys by definition identifies an actual uncertainty. Pretty useless.

Van Bergen should have hired an expert to thoroughly review the existing surveys, to view the physical evidence, and if necessary, perform a new survey.

King's survey, as Ryan pointed out, seems suspect. What the heck is with that Surveyor's Statement? How did that get by the CS? Was that survey really a survey? Did he really retrace the portions of Stewart's survey that his map implies that he did, or did he just come off a couple of monuments at one end of the new boundary he established and check in to one or two at the other end of that set of courses? with everything being shown M&R to the nearest second of direction and nearest 0.01', it seems really unlikely that his map is reliable.

It could be that on each course, the differences between his measurements and Stewart's were within his level of certainty and so decided that there was no point in showing the difference since, scientifically, he could not state that his slightly different dimensions were any more correct than Stewart's. that's valid, but if I'm Van Bergen's expert consultant, I'm advising her attorney to have King produce the notes and calcs to support that explanation.

Just looking at the maps, it appears to me that Vaughan was much more thorough in evaluating and using corner evidence than Stewart was, and that King merely jumped on a portion of Stewart's survey in order to establish the boundary splitting the Byington (Martin's predecessor) property. I get the impression that Stewart (or his semi-trained field crew) began and ended their field evidence investigation with a search for an IP or rebar at the calculated corner positions. If metal wasn't present, the corner was deemed lost and a new one proportioned in.

I don't know if Sanders testified similarly, or if he was even asked to make such a review.

But here is the shortcoming with respect to experts in this case: Martin brought one to effectively represent the opinions of two, one who surveyed the entire section (but did not testify) and one who merely followed the other and agreed with him (and was the only expert to offer an opinion as to the correctness of the 3 surveys) and who said that they were right and the dead guy (apologies to any friends of Mr. Vaughan for the flip characterization) was wrong. And Van Bergen had no expert to dispute that. Sanders said that he didn't know unless he performed his own measurements, so he too missed the point that it should have been about the evidence, not about the measurements.

In a similar situation a few years back, my wife, representing the agency she works for and sitting as 2nd chair attorney to a Deputy AG went to trial confident that both the law and the facts were on their side. The other side had hired an expert. My wife's agency was too cheap to hire one to counter that testimony, relying on in-house analysis that the report prepared by the other side's expert was wrong on several points and not very well prepared.

The problem was that the agency was looking to my wife as their own legal expert, but since she was sitting as an advocate, she could not testify as an unbiased expert. The other side's expert testified to incorrect analysis of a highly technical issue with great confidence (think of the LSITs or even LSs you've known who spout total BS with the confidence of someone expounding on well established absolute truth). With no expert testimony to counter, the judge ruled on the only expert opinion provided to her.

The lesson: if you go to a gunfight, don't neglect to buy some ammo. If the other side has experts to testify to the correctness of their own surveys, you had better find and hire an expert to review those surveys and the evidence of the boundary. If the expert you have is unwilling to offer an opinion as to the quality and content of those other surveys (either that they are wrong or that they appear to be right), then either you have an expert who is not knowledgeable enough to perform a thorough review, or you are not engaging the expert fully enough and providing the resources and authorization for him to perform that review.

The result? For your unwillingness to pay for the level of expert service required (or inability to recognize the need for it), you lose 10% of your almond crop and have the pleasure of paying for your losing attorney and the other side's winning one.

Ouch! That's gotta hurt!

[LS_8750]

Could somebody post Vaughan's Sheet 3 of 3?

[LS_8750]

When you re-establish a q-corner by intersection and then owners occupy to that re-established line, fine. But, when a 70 year old fence line that was implicitly agreed between neighbors to be the boundary is trumped by a re-established corner by intersection, I am not OK with it. Everybody, except the court in this instance, knows that the re-established corner is likely several feet from the original. I am with Evan.

[LS_8750]

Furthermore, there is a chapter in "Chaining the Land" that describes various methods about how surveyors actually subdivided sections in California, emphasis being about the center quarter corner.

Enough to make one question the validity of that center quarter corner shown on those maps, particularly since that monument was set some 50 years after the fence was reconstructed.

Without review of the maps the decision seems reassuring. But...

Is this case indicative that bad surveying makes for bad court decisions? Or?

[Dave Karoly, PLS]

I found the Record of Survey maps which I think are the ones used in this case. Essentially all of the Surveyors subdivided the section by mathematical means as if the section had never been subdivided before. Two are in close agreement (within a foot) and single proportion the south quarter section corner of Section 13. The Vaughan Record of Survey uses a found large white oak tree as the original bearing tree to the south quarter section corner of Section 13.

Here are the links available on-line:
Vaughan, 92 LS 87, 88, 89:
http://maps.slocountymaps.com/RS/RS_092 ... 87_001.tif
http://maps.slocountymaps.com/RS/RS_092 ... 88_002.tif
http://maps.slocountymaps.com/RS/RS_092 ... 89_003.tif

Stewart, 92 LS 24:
http://maps.slocountymaps.com/RS/RS_092 ... 24_001.tif

EMK (King), 92 LS 44:
http://maps.slocountymaps.com/RS/RS_092 ... 44_001.tif

The correct doctrine, in my opinion, was not the Implied BLA. What we have here is an original boundary in my most humble opinion and we have Ruth Scovell's testimony to back this up.

P.S.: Sorry I re-cover ground from above.

[Dave Karoly, PLS]

I never saw your post above until just now.

My reply: Right on, you won't find me defying the Supremes either.

[JBStahl]

The death knell for implied agreements doctrine (acquiescence) continues to ring in California. The California courts have entrenched themselves into the merger of two ancient doctrines of law which are still alive and well in the vast majority of states. California has thankfully chosen to give this newly formed doctrine a new name: the "Agreed Boundary" doctrine.

Historically, there were two separate doctrines, Parol Agreement and Implied Agreement (really there were three if you include Written Agreements). In order for adjoining owners to enter into a Parol Agreement, the courts required that there be some "uncertainty or dispute" over the boundary location. The law could not allow the owners to simply "orally agree" to establish a boundary where they knew it did not exist. If they were certain of its location, they were required by the Statute of Frauds to create a new boundary in writing through a proper exchange of title. They could not simply agree that the boundary was located where they knew it wasn't.

The Parol Agreement doctrine, in its pristine sense, included four factors: 1) adjoining owners, 2) uncertainty or dispute over the boundary, 3) an oral agreement intended to establish the boundary location (thereby resolving the certainty or dispute), and 4) the physical construction of improvements intended to consummate the agreement. In general, the two owners, uncertain where their boundary is located, agree upon the location and erect an improvement in reliance upon the agreed location. One obvious thing missing from the parol agreement is "time." No period of "acquiescence" is required under the Parol Agreement doctrine. Once the terms of the parol agreement are fulfilled (they constructed the fence in accordance with their agreement), the agreement is enforceable (sans mutual mistake).

The problem with any Parol Agreement is obvious; the parties to the agreement will eventually remember the terms differently, forget it entirely or die. The passage of time is an enemy to all oral agreements. The Implied Agreement (Acquiescence) doctrine was designed to step in to resolve ancient lost or forgotten agreements. The doctrine required four things: 1) a common boundary between two adjoining properties, 2) an existing physical improvement, and 3) each adjoining owner mutually recognizes the improvement as marking the boundary by occupying their respective sides of the boundary, and 4) for a long period of time (typically 20 years based upon the rules of evidence, but often mistakenly related to the statute of limitations period defined by legislative statute).

Notice, there is no requirement under the Implied Agreement doctrine for any "uncertainty or dispute." The reason it is absent is because there is no way to "dig up the bones of the past," to "refresh faded memories" or to prove with any "reasonable certainty" that the owners entered into a parol agreement at some time in the distant past. Those memories are gone. They are proven, not by direct evidence of the agreement, but by the actions of the landowners over time. That's why we have the Implied Agreement doctrine.

The mutual actions of the landowners maintained over a long period of time becomes the indirect evidence necessary to "imply" that the owners have entered a mutual agreement without any direct evidence proving the agreement itself. We most often cannot even prove that an agreement ever happened or who the parties to the agreement were. We don't know who constructed the fence; why the fence was constructed where it is; what evidence was relied upon to determine the fence location; or, any other evidence that would show good-faith reliance upon the fence as marking the boundary. All the evidence we have is the subsequent mutual recognition and mutual acceptance of the fence as marking the boundary for a long period of time, which is all the evidence required under the doctrine of Implied Agreement (Acquiescence).

Such is no longer the case in California... Since the death knell was first struck (Bryant v Blevins), the California courts have effectively merged the two doctrines into a single "Agreed Boundary" doctrine. This new doctrine requires the "bones of the past" to be excavated, the parties to the agreement determined, and the state of knowledge regarding the "certainty or uncertainty" of the boundary location at the time of the agreement be excised from the remains. The rules of evidence require no such excavation beyond 20 years, yet this new doctrine would require such excavation of the evidence 50, 80 or perhaps beyond 100 years into the distant past to the time when the fence was first erected.

There is no room for repose in this newly merged doctrine. That which the law has formerly allowed to remain at rest are now required, under this new doctrine, to "clearly and convincingly" prove that "uncertainty or dispute" was present when the ancient fence was erected by unknown parties relying upon unknown evidence. The "Agreed Boundary" doctrine as now cited by California courts requires an "impossibility" under the law. Such an "impossibility" violates a centuries-old maxim of jurisprudence: "Nemo tenetur ad impossibile." No one is bound to an impossibility. Can anyone point to a single California case post Bryant v Blevins where this newly-formed doctrine of Agreed Boundary has been successfully argued and proven?

Evan is correct when he points to other doctrines which may still be intact in California. The doctrines of Practical Construction, Repose and Equitable Estoppel may be all that remain to allow boundaries, long-established, to stand unmolested by the whim of any surveyor reliant upon evidence which has faded with the boundary itself. The presumption of good-faith occupation made by the original settlers just might find a way to stand against the passage of time, subsequent "technically correct" surveys, and the California court system.

JBS

PS: For an excellent treatise on this "merging of doctrines" issue as it unfolded in Utah, read Halladay v. Cluff, 685 P. 2d 500 - Utah: Supreme Court 1984, followed by Staker v. Ainsworth, 785 P. 2d 417 - Utah: Supreme Court 1990. The Utah SC discovered the "error of their ways" and "turned the great ship." Another recent case which even more fully explains the differences and current application of the doctrines in Utah is found in Bahr v. Imus, 2009 UT App 155 - Utah: Court of Appeals 2009, and its subsequent appeal Bahr v. Imus, 250 P. 3d 56 - Utah: Supreme Court 2011. Copy of survey. According to the UTSC, where is the lot line between Lots 412 & 413?

[Dave Karoly, PLS]

I think there is another recent case which meets the requirements of Bryant but I don't know what it is offhand.

I think maybe the Doctrines were combined before Bryant:

Ernie vs Trinity Lutheran Church (1959)
[6] 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. [7] It is not required that the true location be absolutely [51 Cal.2d 708] 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].)

[8] 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. (Hannah v. Pogue, supra, 23 Cal.2d 849, 856 and cases cited.)...

[dewardkb]

I must agree with Mr. Karoly. We do not always agree but in this case I think he is correct in his assertion.

I will go further, this particular case in my opinion, has nothing to do with an agreed boundary, despite what some may suggest.

[Dave Karoly, PLS]

The purpose of the Boundary Doctrines is to give legal effect to the actual boundary and to promote stability in boundaries.

They are not merely theories to be pushed by Lawyers.

Any time a Land Surveyor determines a boundary location he is using some Doctrine or other. Measurements seem to be particularly popular with Land Surveyors although they are usually way down the list of controlling elements. The Doctrines give you a flow of reasoning which uses the best available evidence.

The Boundary Doctrines are not some deep dark secret only Lawyers and Judges can find out about. Every thing we do is tied to either Statute or Common Law so we may as well use the correct one in any given situation.

[Dave Karoly, PLS]

Our duties and responsibilities have changed since the 1950s. Prior to 1960 Experts could not testify to the ultimate issue in a Civil Case. The LS would simply make a map, the deed line is here, the fence is here, found pipes here and here then let the Judge figure it all out. I think the Legal profession's knowledge of boundary and real property law not to mention the purpose behind it (laws don't exist in and of themselves, they have a purpose) has been in decline probably since 1900. They need us to be the adult supervision when it comes to boundaries.

The current rules of evidence now allow Experts to testify to the ultimate issue. The ultimate issue in a boundary case is what and where is the boundary. If you survey a boundary like Curt Brown would've in 1955 you could slander someone's title and cause yourself big problems.

Here is an example:
Suppose you have a contract to Survey your client's property. You get a copy of your client's Deed and all the Deed's back in the chain until 1950 when the parcel originated. The Deed is for the "West 200' of Lot X..." So you think, "no problem, I'll just go out there and measure 200' east from the west line of Lot X and that is the all important DEED LINE." Wait a minute.

Under the boundary establishment doctrines, the legal boundary IS the DEED LINE although it doesn't exactly measure 200' east of the west line of Lot X. This is the most important concept to understand in all of boundary law. The Doctrines DO NOT allow some sort of boundary anarchy wherein the boundary moves every time the fence moves; in fact, they are not specifically about fences at all.

So you go out there and are looking for the west line of Lot X and setting up control near the east line. The neighbor comes out and says his grandfather had it surveyed when he sold the West 200' although nothing was ever filed. He shows you the pipes set by the Surveyor. Let us just suppose the pipes meet all of the requirements of one of the boundary doctrines by a preponderance of the evidence. Great, that is the boundary, not some imaginary line measured out perfectly.

The doctrines promote stability. Monuments are stable (generally) while measurements are not. This is not Adverse Possession (which requires clear and convincing evidences). If you think about it, the west line of Lot X could have changed over time too so maybe the east line of the west 200' is more accurate than the west line of Lot X.

The first time I heard the word "acquiescence" I thought oh great, that will put the boundary at the wandering fence instead of the original monuments. Generally however if you have the original monuments for that boundary then those will be better evidence of the boundary location than a wandering fence.

The various doctrines established in common law have evolved over time to provide Judges a rational method to determine what the best answer for the boundary location is and a legal means to justify it. The purpose is stability, and fairness, really. They vary quite a bit by State except for original boundaries which seems to have survived so far. I cringe at the thought of some original boundary case making it to the Supreme Court so they can screw that one up too.