California Surveyors Forums

I'm looking for some california court decisions (cases) where the court found that the mere placement of a fence by an owner, doesnot constitute an established property line, but rather it is simply an "act" of an owner.

In both of my situations of concern, each boundary line can readily be reestablished with ample amounts of original controlling monumentation.

In both of my cases, it seems that owners placed fencelines at a convienient location, both, to keep cattle/ livestock "in"

Thanks a bunch
And a very happy 4th of july to all.

I ran a quick search for cases since 1960 that have anything to do with fences.

Here’s a quick list of some interesting cases:

Armitage v. Decker, 218 Cal. App. 3d 887, 267 Cal. Rptr. 399 (Cal.App.Dist.1 03/13/1990)

Bryant v. Blevins, 9 Cal.4th 47, 884 P.2d 1034, 36 Cal.Rptr.2d 86 (Cal. 12/19/1994)

Bryant v. Blevins, 17 Cal.App.4th 98, 22 Cal.App.4th 574, 27 Cal.App.4th 1252, 21 Cal.Rptr.2d 411 (Cal.App. Dist.3 07/13/1993)

Kraemer v. Superior Oil Co., 240 Cal. App. 2d 642, 49 Cal. Rptr. 869 (Cal.App.Dist.4 03/08/1966)

Young v. Brown, No. G031914 (Cal.App. Dist.4 06/21/2004)

Stout v. Meadows, No. G034463 (Cal.App. Dist.4 12/20/2005)

Richmond v. Morse, No. B182872 (Cal.App. Dist.2 05/23/2006)

Roman Catholic Welfare Corporation of San Francisco v. Bendinelli, No. A103459 (Cal.App. Dist.1 01/26/2005)

Van Taylor v. Ivie, No. B167277 (Cal.App. Dist.2 05/23/2005)

Goychochea v. Weir, No. D043604 (Cal.App. Dist.4 12/20/2004)

Lean-Stewart v. Rolff, No. A101593 (Cal.App. Dist.1 01/23/2004)


means NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

However, these cases are often quite interesting and can provide insight into judicial thinking as well as additional lines of argument and references to cases more on point that are not decertified.


This all comes from VersusLaw. It’s a subscription-based legal research service. I pay less than $14/month for access to federal and state appellate case law opinions. Higher priced subscriptions provide access to more features and functions.

In my opinion, as a boundary surveyor, access to these cases is critical to stay atop the ever-changing morass of judicial thought. And, yes, sometimes I do make my boundary decisions based on the outcome of recent court decisions.

Being able to put together a report for an attorney that has case citations backing up my opinions lends great credibility to my report as well as gives them something to bite on.

BTW 4th of July isn’t until next week, right?

Thanks Ian,

I currently subscribe to "findlaw" but I find it is hard to locate cases on that site. I will check in to the other site. I definately agree, that it is imperative for all boundary surveyors to be privy to the laws, and court findings. This is a must for arriving at sensible and acceptable decisions.

Fourth of July is this Friday. With my workload, I look forward to any and all holidays.


I will review these cases and add a reference to my report.

Take care

DH

info from a lurker: There are different scenarios that involve fences;from my readings,the basic rule is that the intent of the fence is paramount.This can involve establishment of a property line by unwritten means or unwritten agreement such as "acquiescence", which Black's Law Dictionary calls "a silent appearance of consent,failure to make objections." The American Jurisprudence Proof of Facts on boundaries states "Where adjoining owners occupy their land up to a certain line,which they mutually recognize and acquiesce in as the boundary line,for a long period of time,they and their successors in interest are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true line,though such line may not be in fact the true line according to the calls of their deeds."
The doctrine of "estoppel" can also come into play here;I am paraphrasing Don Wilson,a famous lecturer and author here: he states that "if owner 'A' knows the true line and silently permits adjoiner 'B' to make improvements past the line unknowlingly,then owner 'A' is estopped (prevented) from claiming to the true boundary later.Also, if owner 'A' makes declarations or representations in good faith,and by mistake,and in ignorance of the true line,then estoppel does not work.Then owner 'A' could claim to the true line as shown by a survey,regardless of where the fence is. Also Wilson states that "the mere failure of one party to object to the erection of a fence does not operate as an estoppel where there is nothing to indicate that this party agrees to the fence as the boundary line." In other words,he can still claim to the correct line that a survey would show. Don't confuse with the principle of acquiescence, remember that acquiescence in a line requires intent.

Well spoken and well taken turtoise.

Due to the fact that this fence was constructed with a bevy of patchwork material, I have a strong urge to believe it to be the "act" of an owner rather than an intention of aquiescense. Old photos show this enclosure to house farm equipment with the adjoiners land being vacant.

The case I am working on involves different opinions of two surveyors. After a judgement is made, one of these surveyors will not be happy. I can find cases to support both of their decisions, but find it difficult to see a court passing judgement which purposly leaves a gap in title.

This will be an interesting one to watch. I cant disclose too many particulars at this time. The outcome of this case may change the way we lay out "of" descriptions for decades to come.

Well, it is a question of evidence. Many times on the surface the opinions seem to be opposites to each other when in fact they are not. The opinions are based upon the law and the fact set in each case. The cases that you are looking to- how similair are they to the fact set in your case. What will be looked for is evidence. Ask and answer a few questions. Who built the fence? When was the fence built? Why was the fence built? Do you have evidence that the fence was built to a survey? The Belivns case, if I understand it correctly, put forth the view that a fence is just a fence uness there is evidence that supports the fact the fence was constructed to memorialize an agreement between parties. Do you have evidence to support the fact that the fence is part of an agreement? Perhaps you have evidence to the contrary. Something the court will look at is a balancing of equities. What is the harm to one side or the other by moving the fence or moving the line to be coincident with the fence, if the fence is indeed the true boundary. Many factors to consider and sometimes the outcome does not correspond well with a boundary location based soley on a math solution.

Very correct. I tell "my" attorneys that a case they wish to use must be very similar in content.

In this case, Surveyor "A" decided to use Earl v Dutour (shown in Curtis Browns blue book) which allocated an "of" description from the sideline of the road. He found evidence of a old fence near this line and he also found an un recorded pipe somewhat near his derived position (based upon the Earl v Dutour)

Surveyor "B" chose to use Ferris v Emmons (shown in Wattles yellow book)
which states that allocating "of" descriptions can be based upon common practice within a certain area, by reputation. ie, the centerline of an unicorporated roadway can be used to calulate acreage and alignment.

The colony map, in this instance, states that all measurements and areas are measured to the centerline of the roads.

These lots are large ranchette style, so there is plenty of buildable area in either case. The Earl v Dutour case is pretty clear about allowing a grantee enough space for building.

Reputation throughout this area supports Ferris v Emmons. BIG BIG evidence in this case does support Earl v Dutour, as the surveyor did find a fence and a nearby pipe.

There are other concerns that I cant mention. This case proves to be very interesting.

Which one was the first surveyor to make the decision?

When I face this situation, I make a statement on the RS of what i have done and why I have done it. I also make a suggestion to future surveyors to follow my procedure. Then, if a later surveyor disregards the procedure, the courts are likely to look less favorably on that attempt.

If you can prove through a preponderance of evidence of a local custom, that can be held as a standard of local practice. That may well be enough to push the decision one way or another. Just make sure that you’ve polled enough local surveyors and have a good selection of them willing to testify as to the local standard.

I went back and took a look at Brown's second edition (the blue one) and then the fifth edition (purple). I cannot remember if there is a newer edition or not. It seems that there is. Anyway, I would be careful using older editions because case law can be a moving target and recent case law may overturn previous case law.

I want to bring to you attention the fact that there are 2 exactly opposite situations one where the grant is a LOT and the other where the grant is a metes and bounds description. Which one do you have in your case. If you grant is based upon the description of a lot then Earl v Dutour may still be good law. This means the method is to use the lot line to measure along for distance or area and not the centerline of the street. If your grant is by metes and bounds, then the correct method is to use the street centerline. These are different issues than your question about a fence.

Let suppose surveyor A used the correct method and surveyor B did not. Even thought surveyor A did what they were suppose to do, if surveyor A's method would cause the parcel of land to be unsuable or cause an undue burden on the land owner- having to move a house for example-, then it is likely that suveyor A will lose the case.

Don't get me wrong we have to do things correclty, but an equity court does not really concern itself with survey rule, they just try to decide what is fair with respect to the law and the facts of a given case.

I hope,we can find out what happens, latter.

I'm just very glad that this case does not directly involve anything I have surveyed. Whatever the final decision may be, there will be much damage to be paid for.

I discovered that surveyor "b" did not have access to surveyor "A"s plat.
The County failed to index it in their system.
Two proceedures have been my personal custom for years.
1. I rifle thru the latest filed volumes and books of maps for anything which may be too recent for indexing.

2. When there is a material discrepency, I attempt to bring the owners of the properties together (at the site) and discuss the issues.
Agreement verbage is laced on the map (example) provable deed (math)position verses fenceline. At the meeting I explain to them that should they disagree, a decision will have to be made by a judge. I will only act as an expert witness and each side should hire other opinions. This of course after exhausting possibilities.

Too bad Surveyor A and B couldnt have gotten together on this one.

dmi wrote:Who built the fence? When was the fence built? Why was the fence built?

GIS may be another solution to finding evidence.

Check www.gisdatadepot.com

In many areas they have good quality aerial photos from recent to past, sorted by years. You can overlay the different aerials by year and see when your fence was built (or rebuilt in a differant location).