California Surveyors Forums

Evan, I think there is a misunderstanding. I will summarize my position:

I don’t agree with holding the 150’ for the half. I also don’t agree with holding the fence.

I believe that when the deed says “the south half of Lot 2” this is measured from the right of way regardless of the fee ownership of the street at the time. This opinion has nothing to do with whether surveyors should stake “boundary lines” or “ownerships.”

I believe that when the street was finally abandoned in 2006, the south half benefited and the Deed line did not move, hence 160’ and 140’.

Sorry for the confusion,
Ben

After 10+ years of attorneys, records of surveys, etc

The lower court judge - finding that he was not able to understand which surveyor was correct - split the difference.

Both Attorneys agreed that was equitable and filed a lot line adjustment to reflect the adjudicated line.

The attorneys made lots of money.

Maybe talk to both owners, file LLA or BLA and skip the attorneys?


Keith

Ben.

Its me not you. Evan may take exception to some of your comments, but his last post I believe was directed at me. When i said that "he scared me". i needed to flesh out my comment. I was in no way disagreeing with his comment about the practical fact that a surveyor winds up being "Judge and Jury" when they arrive at an opinion of the location of a particular boundary.

I wanted to add on to his comments.

If you absorb Earl v. Dutour, It is plain to see the court ruled in such a manor as to insure intent that Earl obtained a 50-foot wide buildable lot. I am surprized that Mr. Brown ran with this case only when his theme is "the contrary may be shown"

Earl v. Dutour, is a case where an actual distance is called. Earl surely couldn't've built his dream house on the 25 feet.

This case is a case of "halves" and as stated there are numerous maps and physical cases in this subdivision that divide the "half" as 150-150.

To date, the junkie fence origin is suspect. It may have been layed out by a relative who worked for a survey company and though he knew what he was doing ? There was actually a momument set at the southwest corner of the north "half" (150') This monument was ignored by the (140' surveyor)

I believe both of the Brown citings and Cuomo statements deal with lots in a city limit. The subject lots are larger, rural, ranchette types originally sold in blocks (like this one) and the owner enclosed livestock on them before selling.

Ferris V. Emmons appears to be more on line with this case. ?????

First, my apologies to Dane, who's post I took in the wrong light. Thanks for the call, Dane.

Second, Ben, if I understand you correctly, the fact that the fence falls on the line you would hold is coincidence. Is that correct?

But you still are holding to the opinion that one does not include the area within the RW when considering the split of the lot and that whether the area of the RW is fee or easement is immaterial.

You had better figure out what your authority (source legal reference) is that you are basing your opinion on that you can just pretend that a portion of the lot really isn't a portion of the lot. Go back and take a look at what Hellsangle posted from the Civil Code.

The law says that RW not in fee is part of the lot. Under what authority can you, without superior evidence of contrary intent, decide to omit a portion of the property when arriving at your conclusions? If there were a PUE running parallel with and adjoining the RW on it's N side, would you omit that too? What if there were another parallel easement just N of that for a private roadway?

You see, a distinction needs to be drawn somewhere. The law draws it with the difference between easement and fee, not what the use of the easement is.

If you have clear evidence that it was the intent of the parties to omit the area of the RW and create halves of the net area, then you can go that way. But if you don't have such clear evidence, you may not.

What you seem to be stating as the general rule is actually directly contrary to law.

The general case that you may be thinking of is a Lot & Block scenario. In that case, the streets are generally shown to be distinct from the Blocks, and the Lots are portions of the Blocks. That's entirely different than this situation.

The situation presented for this thread is more akin to the aliquot breakdown of a section. If you had to establish the C 1/4, would you let the fact that there is a road RW centered on the South line of the Section, but none on the North line affect how you determine the C 1/4? I would hope not.

But it's the same principle, if your client in the section breakdown scenario owns the SW 1/4 of the Section, are you going to stake the SW 1/4 of the whole Section, or will you stake the SW 1/4 of the net area of the section, omitting the area of the RW along the S line?

So, let's ask that question again: If your client owns the S 1/2 of Lot 2, are you going to stake the S 1/2 of the whole Lot, or will you stake the S 1/2 of the net area of the Lot, omitting the area of the RW along the S line?

Same question. Same principle. Should have the same result.

The fact that the fence falls on the 140’ mark is evidence. That evidence points to the 140’ solution. My solution does not “hold the fence” but rather looks at all of the given evidence including what the courts and experts on this subject have said. I believe the right of way is part of the lot, this is not the issue. I think we all agree that if there was a PUE you would include it. We also agree that there is no problem when fee ownership abuts fee ownership. The problem is what about lots abutting right of way.

Evan, I can just imagine how crazy you think my opinion is. You said,”If you have clear evidence that it was the intent of the parties to omit the area of the RW and create halves of the net area, then you can go that way. But if you don't have such clear evidence, you may not.”

This is not a “new” problem and it has been addressed by both Wattles and Cuomo. They both site court cases and explain what the intent is of the legal description verbiage. I don’t know what else to tell you. Wattles even goes so far as to cite the exact verbiage found on the map and how the courts have ruled the intent of the verbiage (See Bruce Halls post 8/19/08 8:21 pm). Right now, we would find ourselves on opposite sides of the court room.

You said, “You had better figure out what your authority (source legal reference) is that you are basing your opinion on that you can just pretend that a portion of the lot really isn't a portion of the lot.”

You know my sources. I am not arguing that the right of way is not a portion of the lot. Of course the right of way is a portion of the lot. This is not the question. The question is what is meant by the south half of Lot 2. You argue the right of way is part of Lot 2. I agree. The question is: What is the intent of the words of the deed? (Again Wattles and Cuomo answer this question very plainly).

Regarding the lot and block scenario, whether you show the lot going to the center of the street or ending at the right of way it doesn’t matter (See Wattles Ch 9 and Cuomo Ch5). Whether you add a note to your plat that states all dimensions and areas to go center line of street, it doesn’t matter (Wattles).

I also believe that this situation has very little, if not nothing to do with how you establish public lands.

It sounds like you’ve read both the Wattles and Cuomo chapters and disagree with them or feel like they are talking about a different situation. If so, then we might forever disagree on this one.

By the way, I’m using all of my few months of Licensed Land Surveyor experience (along with some intense studying) to come up with my opinion. I will be the first to admit that I am sorely lacking in experience and I certainly will admit when I feel like I am wrong. So far though, my opinion holds.

PS, we might have to chat about this one in person at the next CLSA conference!

Ben,

I would enjoy the chat.

Take a look at goodgps's last post. That clarifies some issues.

My reading is that the 140'/160' survey was done by person or persons unknown and possibly unlicensed. The fence was a hodgepodge of materials that was neither very sturdy nor held in very high regard by either landowner (no other evidence of occupation or reliance on this line, and the fence has been torn down). There was what appears to be a legitimate monument at what should have been the west end of the line.

I haven't gone back and tried to find the particular reference in Wattles that you refer to, and I don't have the Cuomo reference (is that in a book or at a seminar?) that you refer to, but I suspect that they were commenting on a case with particular circumstances that reasonably lead one away from the clear intent of the Civil Code and did not intend that interpretation to be applied in all circumstances.

And yes, this is exactly like the PLSS scenario I presented. Each is a rural lot of some subdivision and each has an adjacent roadway. Each is being divided by parts.

At which point of division do you start omitting the RW by standard practice? If you are going to do so in this case, but not in the case of an entire section, there must be some cutoff point where the rule changes?

Would you do so with a 1/4 section, a 1/16, or a 1/64? 10 acres is still larger than the lots considered in this thread. Maybe at a 1/256? at a nominal 330' x 330', we are right in the ballpark with the 300' x 300' lot in this problem.

The problem with your reasoning is that you either need to show, legally, how an undivided section or its aliquot parts are different from other land that you would treat them differently under the law, or you need to show, legally, where the presumption of whether or not to include the RW when dividing by parts changes based upon parcel size.

I don't think that you will be successful at either. The fact is that the surveyor needs to look at this sort of scenario through a clean lens each time it is encountered. At some point it becomes gray and fuzzy.

In a city lot, one would generally not include the RW because it was mapped as separate and distinct, with the dark lines of the lots being along the RW rather than the CL (even though dashed lines may go to CL).

In a rural setting with larger parcels, one would generally include the area of the RW because the parcels had never been clearly defined as not including those areas, and because the law is clear on it.

But such things as occupation evidence, previous surveys, and resultant parcel size may come into play as extrinsic evidence to clarify the terms of the deed.

A substantial fence, clearly recognized by the landowners, and to survey monuments of known pedigree would normally be sufficient to overcome the basic presumption at law. A flimsy collection of junk attached in a linear manner between pipes (goat stakes?) of unknown origin may or may not be sufficient evidence. When you ask the landowners about it and they respond "I dunno. That's why we hired you", that pretty much relegates that "fence" and those "monuments" to little more than interesting artifacts on the property.

You are relying pretty heavily on Wattles and on Cuomo, and how you think their statements would apply to this and similar scenarios. First, I suspect that either you are misunderstanding their comments or are misapplying their advice.

But second, and perhaps more importantly, realize that in relying on their opinions, you are relying on nothing more than the opinion of another surveyor. Yes, they each, at the time of their writing have vast amounts of experience over you (in Paul's case, that experience continues). And yes, it is good to gain from that knowledge and experience. But what they have written or said does not have the force of law behind it unless what they are saying is directly in line with the law.

Don't rely strictly on what you recall their statements to be. Look to their statements in the context of the cases they've cited. Have those cases.

When we tested you for your license, we did not test you on the various text books on the market. We tested you on law applicable to the state of California. Much of the advice in text books stands the test of time and will be applicable throughout your career. But as new laws are enacted and the body of case law grows, some of that advice will become antiquated.

While you can use the opinions of other surveyors to guide your opinions, that guidance should always be pointing to some location in the law. Base your opinions on the law, not on the opinions of other surveyors.

OK, if you can give me a court case that shows the courts are holding your solution, I can be swayed.

I will have to dig deeper on my end to do the same. From what has been presented, my opinion still stands. I hope someone can prove me wrong or right!

Evan,
You said, “The problem with your reasoning is that you either need to show, legally, how an undivided section or its aliquot parts are different from other land that you would treat them differently under the law, or you need to show, legally, where the presumption of whether or not to include the RW when dividing by parts changes based upon parcel size. I don't think that you will be successful at either.”

I read all the posts again to refresh my opinion. It seems like you’re saying that you would establish the boundary exactly the same whether the deed read, “the south ½ of the northwest ¼ of section 15” or the south ½ of Lot 2 per Plat XXX.”

I think you would say NO to this question. And you would follow up that “NO” with an explanation about how for public lands you hold the midpoint between the corners that establish the northwest ¼. That this differs from private lands in that you hold area by establishing a line that runs parallel with the southerly right of way.

Here’s another angle. You need to plot an easement that encumbers Lot 2 that reads “the easterly 10’ of Lot 2.” Your theory says: Technically, Lot 2 goes out to the centerline of the street, and thus I will locate this easement by creating a line parallel with and 10’ off the centerline of the street.

You said, “You are relying pretty heavily on Wattles and on Cuomo, and how you think their statements would apply to this and similar scenarios. First, I suspect that either you are misunderstanding their comments or are misapplying their advice.”

I would be most grateful if you read Chapter 5 of “Advanced Land Descriptions” by Cuomo and Chapter 9 of “Writing Legal Descriptions” by Wattles and were able to shed some light on what you think they are trying to say.

Incidentally, How does anyone know what to do with a legal that says “the southerly ½ of Lot 2?” There are probably a dozen ways to create a line that could satisfy the wording. This is not a new problem, and there are established practices.

Clarification: This one is the same as a PLSS division with regard to what is being divided, all or net.

As far as plotting your easement goes, that's where extrinsic evidence could come into play. Does the easement that reads "the e'ly 10ft" have a compatible use with your theoretical road? Is the road an exclusive easement in that no other rights of use may be granted over the same area? The answers to these questions will clue you in to the intended placement of the easterly 10', and whether the desciption is written correctly or not.

I don't yet own Cuomo, but plan to within a few weeks. I will review Wattles 9 and get back to you.

Meanwhile, let me know what you think the meaning behind the codes that Phil posted earlier are and how you think they should apply here.

Ben,

Wattles 9.4 "parcel 5"
reads; The description goes to the "east line of lot 12"

"Under the rule in Anderson v. Citizens Savings and Trust Co. 185 C 386, 393, that the street shown on the map is a part of the lot AND THAT the techncal lot line is the center of the street, it seem proper to hold that the description carries to the center of the street, unless the grantor clearly expresses, in the granting instrument, a contrary intent."

goodgps,
Wattles is talking about who owns the right of way. We all agree that the right of way is owned by the grantor (not the state or the lot across the street). Therefore the deed includes the rights up to the centerline. Now you’re saying “That is the point exactly! Is this guy off his rocker!”

Evan,
I agree with all of the Code cited by Phil.

Civil Code 2077 states:

“Four--When a road, or stream of water not navigable, is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or thread of the stream is held under another title.”

The “southerly ½ of Lot 2” does convey the rights the grantor possesses in the street. I’m not arguing that. I’m simply saying that when the grantee receives such a deed, it is interpreted as that usable land NOT including the right of way that the grantee can do nothing with.

Am I the only one that believes this way?

"Am I the only one who believes this way?"

Absolutely not! You share that belief with the guy who set his pipes at the 140'/160' line. Of course, he was either unlicensed or not confident enough in his monument placement to put his cap or tag on it.

Among us CA licensed Surveyors, including the late Mr. Wattles, I think you're pretty much out there by yourself. Better think this issue over before you find yourself in a position to act on it.

If you are not arguing that the RW is a part of the lot, short of clear intentions of the parties showing it, what gives you the right to omit a legal portion of the lot from your solution?

Even in the face of the law, which you do not argue against, and in the face of it being shown that one of your text sources is not advocating what you thought it did, which you also are not arguing against, you are holding on to this mistaken belief?

Why? On what basis?

I may have time to dig up a case or two on this over the weekend. If so, I'll bring them to your attention. But in the meantime, how about you come up with at least one solid source to back up your opinion. Or, if after you have looked into it more carefully, you change your mind, post the reasons for that as well.

Have a good weekend, and happy studying.

I've tried to pull "Ferris v Emmons, and County of Yolo v Give, from findlaw.com but cant seem to get a link to the cases. is there any other way to get these cases without joining some $300 / year club?

Attorneys are very weak when it comes to land law, and judges are even weaker. Evan is absolutely correct about the surveyor not tagging his monument at the 140-160 line. The Surveyor who used 150-150, did tag his monuments, however simply didnot file his map with the recorder. He did file it with the County surveyor,however, in Misc. files.

Once again, owner on the North "half" has been paying taxes assessed as 150 feet. same as the owner on the south "half" The assessment plat clearly indicates the south half to the centerline of the road, with a mini statement (rd not on ground) This road/ avenue. . .has never been built.

Evan, I’m writing this post after our phone conversation per your request.

In “Writing Legal Descriptionsâ€￾ by Wattles explains when ownership of land carries title to the center line of the street (see chapter 9). “This will be a study of various situations to learn the use and combination of words which in one form conveys or maintains the adjoining owner’s fee title in and to the area covered by the street, while in another form, it cuts off such title. Where land has been subdivided, the lot or parcel normally carries the underlying title in the adjoining street to center line, unless it is a marginal street or has some other qualifications.â€￾

In this case, my opinion has nothing to do with who owns the land from edge of right of way to centerline but I wanted to point out that this is the focus of chapter 9.

In the 3rd paragraph, Wattles addresses what is meant by “Lotâ€￾ and “Streetâ€￾ in a deed. Please see Bruce Hall’s post 8/19/08 7:21 am for the quote. The opinion of the court was based on the concept of “usable land.â€￾ The court held that the grantee is expecting half of the usable land. This is why Dane’s post of 8/20/08 7:43 am is right on.

Wattles then gives 5 examples of deed verbiage and when the right of way is held back with the grantor or when it goes to the grantee. These examples do not address where the “ofâ€￾ description is measure from, this is done in Chapter 11.

Page 11.6 shows multiple examples of the “ofâ€￾ descriptions in action with both the verbiage and diagrams.

Cuomo agrees with Wattles in his book “Advanced Land Descriptions.â€￾ “When a call is for a portion of a lot, then one of the first questions for the scrivener involves the origin of Lot 7. Is it a lot on the public land system, a lot created in sequence, or by metes and bounds, or is it a lot created in a subdivision and is dependent upon a map.â€￾ Obviously, each one of these situations is treated differently.

“One nagging problem in such situations is determining whether a street may be included, and how it may be treated in locating the “southerly 100 feetâ€￾. The uncertainty is increased further by opening, closing, or vacating a street adjacent to a lot. The following is generally applicable:
“When an owner conveys a portion of a lot in a subdivision by an “ofâ€￾ or linear description, the distance is measure from the side line of the street. A later vacation does not change the lot line shown on the plat, even though there may be a reversionary interest in the street.
“If Lot 7 is described by subdivision, the side line of the street is used to measure the 100 feet. It is understood that the grantor may own to the center of the street, subject to an easement for the street, and the boundary of the lot is the centerline of the street. However, the general and customary use of the word “lotâ€￾ does not include the street. Barring any unusual conditions, or specific statements, it is presumed that the grant of a given number of feet of a lot conveys the number of feet of that portion of the lot set aside for private use and occupancy. It is this part that is visible to the grantee.â€￾

In the specific case that started this thread, my opinion is that if you’re not going to follow the general rule (as outlined by Wattles and Cuomo) then you will need some convincing evidence otherwise.

I missed the fact that the owner has been paying taxes on the 150'. I would think that this qualifies for evidence to overturn the general rule.

I hope i didnt bone head this But . . . I thought I mentioned that the assessor did not reckognize the ROS of the 160-140 but rather continues to "plat" a 150-150 even 2 years after the ROS. During that time, the property owner has argued with his Surveyors about this discrepency at the same time he has been revising his development plan to fit the different sized "lot"

The Owner on the south 150 is currently arguing that NOW he should have 160 for his "half" and he lost a great deal of money during a recent sale.

Both Owners are seeking damages. This situation is VERY bad for the industry. I'm hoping that this post will be helpful to all and I fear the Judges ruling. Its hard to imagine that a Judge will rule in favor of both surveyors.

This case is going for preliminary hearing tomorrow I will let you all know how this develops.

Putting all of the different points of view aside, this case should scare the heck out of all of us. I kinda sorta believe both of the surveyors did the best they could at the time save and except the communication part.

Wish me luck friends

"Good"

OK. This one finally got to me. I drafted a quick plat to try to follow the original scenario presented by Mr. Good.

There have been a number of comments regarding the “intentâ€￾ of the subdividers through the history of this parcel. We are on very slippery ground when we begin to look for the “intentâ€￾ of those who are not here to correct us. Intent speaks to condition of mind and is something that we cannot know with certainty unless there is some other evidence to back up what we believe to be true.

First, we must look to the old map that created the four original parcels. It clearly indicates that the measures of the lots are to be made to the center of the streets. Even though the 20’ margin around the block has been dedicated to the public for street and utility purposes, the map tells us we measure to the centerline of the street. AG Op 04-809 indicates that AG Bill Lockyer and DAG Susan Duncan Lee opine that the fee ownership of the road belongs with the adjacent land owner unless the original map or additional documents specifically convey full title to the roadbed to the local jurisdiction.

Next, we look to the other maps through the history of this block and adjacent blocks. What do other surveyors do? What is the STANDARD OF PRACTICE for this area? It appears that the standard is to split the original lots in half including the road width. Regardless of what is done in other counties or other areas of the same county, if it can be shown that the vast majority of surveyors do things one particular way in this area, then that can be shown to be a standard of practice that should be adhered to unless there is some significant compelling reason to buck the system.

Courts do not typically like to break completely new ground. Rather, the Courts seek to extend rulings already in place thereby creating a solid foundation of legal principles built on many years of steadfast rulings, though, and custom. Decisions that are wildly new and counter to previous decisions are the ones that usually get overturned. No sitting judge wants to have their opinions overturned by higher courts.

So, now, we have the picture “clutteredâ€￾ with a fence that sits at the “140’ lineâ€￾. As others have asked, why is the fence there? Is it along the sideline of a driveway or road? Is it a decorative fence or does it keep livestock on one side? What makes you consider this fence as so important that it “provesâ€￾ the intent of the previous land owners? Clearly, if the fence was set on the 140’ line, someone made measurements to locate that fence. Since the measurements were made, there was likely some idea of excluding the road even thought the original block map specifically enjoined the future from doing so. If those measurements were made and made competently based on previous surveys and knowledge of the basic principles of surveying, why was the description written as it was and not using measured dimensions?

Unless you can provide other evidence that refutes the evidence at hand, I would hold that the correct position for the south line of the north half of Lot 2 would be at 150’ south of the north line of Lot 2.

I would be very interested to know more of the details of this survey as well as the outcome. Remembering, of course, that, unless the surveyors involved are competent enough to educate the Court, the likelihood of a good ruling coming down will be diminished greatly. The Court cannot be expected to be experts on every subject. That is one of the reasons that the Courts rely on us as professionals for our opinions and why we are allowed to give that opinion in open court. The Court has every right to expect us to share all the evidence we found and explain our analysis of that evidence. Anything less is not serving our clients, the land, the public or the Court.

As for Earl v Dutour, consider this from Ferris v. Emmons, 214 Cal. 501, 6 P.2d 950 (1931)

Upon this appeal the defendant and appellant admits that the deeds under which the respective parties make claim are sufficient to convey title to the center of the adjoining streets. This being so, the sole question presented for adjudication is whether the center line, which divides block 195 into an east and a west half, is to be determined by including or excluding the streets on the east and west sides of the block. Appellant's contention that the streets are to be excluded in fixing the division line between parcels and in ascertaining the net acreage covered by each conveyance, finds some support in the cases which hold that, however clearly it may appear that the owner of a parcel of land holds title to the center of an adjoining street, subject to the public easement, and that the boundary of the parcel is technically, therefore, the center of the street, in view of the fact that the owner of such parcel of land has no right to the possession or occupancy of any portion of the public street, it will ordinarily be presumed that the parcel does not include such portion of the street. (Earl v. Dutour, 181 Cal. 58)

This principle does not apply to the present case, for the record is replete with evidence sustaining the findings of the court below and irrefutably indicating that the common grantor intended, by the respective deeds to the predecessors in interest of the parties hereto, to convey fractional parts of block 195 as measured from the center line of the adjoing streets. That respondent is the owner of the strip of land in dispute is established by the evidence. The deed to respondent's predecessor, delivered in the year 1888, describes the property covered therein as "The North East quarter (N.E. 1/4) of Block One Hundred ninety-five (195) of the Pomona Tract, according to map of said Tract duly recorded in Book 3, pages 96 and 97 of Miscellaneous Records of Los Angeles County, California, estimated to contain Ten (10) acres of land." This map is in evidence, and materially assists in deciding the question presented by the appeal. A careful study and understanding of it discloses that the net acreage (viz., that acreage devoted solely to private use and occupancy) of the several fractional parts of the 40-acre blocks of the tract (of which block 195 is one), adjacent to the streets of the tract, is noticeably less than the acreage of corresponding fractional parts of 40-acre blocks not abutting the streets, thus clearly indication that, for purposes of dividing the several 40-acre blocks of the tract into fractional parts, all measurements are to be taken from the center line, rather than from the side lines, of the streets. This is borne out by the legend appearing on the face of the map, which discloses that the tract is subdivided into blocks of three sizes, the largest blocks containing 40 acres each, the second containing 10 acres each, and the smallest containing two and one-half acres each, "measuring in every instance to the centers of the adjoining streets", -- the 40-acre blocks (of which block 195 is one) being divided into five and ten acre lots "measuring from the center of the streets", the 10-acre blocks being divided into "8 equal lots Not including streets", and the two and one half acre blocks being divided into lots "on the same basis, similar lots in the same blocks all being of the same width". Reading the several deeds here involved in conjunction with the map to which they refer in describing the property transferred, it is immediately apparent that fractional parts of block 195, as well as the fractional parts of all other 40-acre blocks in the tract, are to be measured from the center lines of the adjoining streets. In addition, and by way of explanation of what was intended by the parties to the original conveyances when they used the word "block" in the instrument of transfer, the respondent introduced a substantial amount of parol evidence, both as to the common reputation and custom in the community of Pomona, prior to the institution of this action, as to the meaning of the word "block", as used in the map above referred to and the several conveyances made pursuant thereto by the common grantor. The witnesses testifying in this respect stated that it was commonly understood that "the blocks extend to the center of the streets", and that "the man who owns the property on the side of the street would have less acreage than the man who was on the side where there was no street, where he had the fractional part of the block". Respondent also produced tax receipts for the years 1911 to 1924, inclusive, each of which discloses that the taxable net acreage of the northeast quarter of block 195 is computed by deducting one-half of the street area from the gross acreage. In other words, respondent is assessed and taxed upon the basis of 8.97 acres, being the northeast 10 acres, less 1.03 acres representing one-half the adjacent street area, which includes the strip of land here in dispute.


My 30 cents worth...

The plat....

30 cents?! I'll give you a dollar for the work you put into that! ;-)

Ian,
The plat linework is absolutely correct.

The initial pre court meeting, found the 2004 "surveyor" to state that the county surveyor and a nearby city surveyor "agree" with his findings. He further went on to state that all of the other surveyors and maps are wrong and his decision is the only one correct.

I personally know the county surveyors and so inquired with them as to their alledged statments. They responded that actually they have no official statement to offer due to only hearing a small portion of the evidence.
When presented with the multiple filed maps, and reputation and tax assessment, they quickly went neutral.

Surveyor South, called me and at great length, has decided to defend his findings. He also offered the fact that he had consulted with a local land use attorney AND met with his client several times befor coming to his decision (150-150)

Without showing bias, I believe this case will go against the Surveyor North, This following Mr Ians manifesto and all of the other information I have collected by following the many responses.

Cosideration, communication and concensus. and COFFEE

Thanks
"Good"

I loved the manifesto.

"good"

Do the attorneys on both sides only claim and then defend one stance or can they take multiple stances? I think I know the answer to that question. In this case, the location of the boundary in regards to the deed verbiage and evidence is in dispute. What about adding to the case an adverse possession claim? Would that have to follow as a separate case?

Ben:

An attorney will often set up a series of positions within a boundary line case. Usually, the most outrageous and least likely to succeeded is presented first. A motion can be filed requesting a summary judgment based on this position. When the motion is denied, the side falls back to the next least tenable position, and so on.

Adverse possession is often the first shot out of the gates. It is almost always quashed as a non-starter because of one small fact: §325 of the California Code of Civil Procedures, which reads:

For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:
First--Where it has been protected by a substantial inclosure.
Second--Where it has been usually cultivated or improved.
Provided, however, that in no case shall adverse possession be considered established under the provision of any section or sections of this Code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have paid all the taxes, State, county, or municipal, which have been levied and assessed upon such land.

While fences count for “inclosure”, landscaping has not been found to constitute “cultivation”. The “biggie”, though, is the bit about taxes. A quick check with the County Tax Collector/Assessor will find out how the taxes are assessed. If necessary, a subpoena to the Assessor/Collector will bring trail testimony into the court room that will usually defeat most claims of adverse possession California.

YES YES, exactly.

In this case, each of the parties have been paying on the 150'

the partial fence stood alone and could be driven around, walked around etc. Both lots were fallow, being tilled only for weed control.

Interesting fact of late, The owner of the south 150 Aslo owns the north half of the lot to the south. This measurement AND occupation is measured from the centerline of the very same avenue we are discussing.