California Surveyors Forums

No deed or conveyance of land was ever made, however minute and specific the description, that did not require extrinsic evidence to ascertain its location; and this is so whether the description be by metes and bounds, reference to other deeds, to adjoining owners, watercourses, or other descriptions of whatever character.

Peacher v. Strauss 47 Miss. 353 (1872)

Perfect!

Alas, there are those among us who believe--to the contrary--that, as long as the deed calls are reasonably clear and can be retraced, those calls would be dominant and would control to the exclusion of extrinsic evidence. The hallowed mantra of the deed staker.

One good quote deserves another:

"The common theme of these decisions is a deference to the sanctity of true and accurate legal descriptions and a concomitant reluctance to allow such descriptions to be invalidated by implication, through reliance upon unreliable boundaries created by fences or foliage, or by other inexact means of demarcation."

California Supreme Court, 12/19/1994

Interesting quote William. Can you provide the full citation for context?

Fencelines are a different subject as there has to be some evidence that they were built with the knowledge of where the boundary actually existed on the ground.

Extrinsic evidence can be used to explain both patent and latent ambiguities in a deed.

A quote from Jeff Lucas quoting the Supreme Judicial Court of Maine in the 1991 case of Theriault v. Murray:

"We consistently have held that what boundaries a deed refers to is a question of law, while the location of those boundaries on the face of the earth is a question of fact. If facts extrinsic to the deed reveal a latent ambiguity, then we determine the intent from contemporaneous circumstances and from standard rules of construction."

A patent ambiguity is an ambiguity on the face of a deed (what boundaries are). if there is ambiguity in the words of the deed, evidence from outside the deed can be used to explain the intent, but not to change the deed.

A latent ambiguity is one which is brought to light by evidence outside the deed. For example, if you measure into a record monument from two different starting places and the two measurements do not agree, there is an ambiguity. Extrinsic evidence is admissable to determine the true intent in light of latent ambiguities.

The original quote regarding extrinsic evidence applies to "the location of boundaries on the face of the earth". To go from a legal construct, a deed, to the physical world, location, physical evidence of where the bounds cited in the deed are required and that is where it becomes a matter of fact.

Which leads to another quote from Jeff Lucas's article: Quoting from Northrop v. Opperman, for a discussion of best available evidence in the boundary retracement context. Keep in mind these are factual issues, not legal.

The answer to the pertinent question — where is the boundary line? — must be established by the best evidence available. Monuments set by the original survey in the ground, and named or referred to in the plat, are the highest and best evidence. If there are no such monuments, then stakes set by the surveyor or soon thereafter are the next best evidence. Buildings, fences, and other substantial improvements built according to the stakes laid out while they were present are the next best evidence of the line. The time will soon come when [the boundary line] will have been lost by the destruction of all monuments, natural or artificial, and by the death of the old inhabitants. Then resort must be had to evidence of lesser degree to establish ancient boundaries, and long-continued occupation with respect to unchanged lines, and reputation, even, may be the best evidence available. The circuit court’s determination of the best evidence locating the boundary line in the survey/fence cases is essentially a finding of fact.

Steve, seeing the Lucas quotes, I had to comment.

We just had him up in Humboldt for a seminar. Despite his use of the pejorative term "deed staker", and no lack of vitriol directed at Walt Robillard, I was impressed by the reasonable tact of his entire presentation. His examples tended to be over the top, such as the Northrop v. Opperman case you mention in which a Washington County Surveyor placed 2 separate section lines on the ground that did not match roads that were built on section lines and an adjudication to that effect. (What was he thinking? Was he even thinking?). Our emcee was going to introduce him as one of the extremes in the battle between deed stakers and fenceline surveyors but after the presentation stated that characterization would have been incorrect.

Thanks for the quotes and the discussion.

"you get lucky a few times and start to think that's skill." - Kenny Broad 2013

"Facts do not cease to exist because they are ignored." Aldous Huxley 1927

Nice Russ!

Mike,

I was put off by Jeff Lucas initially, in part because he tends towards hyperbole and in part because he dissed CLSA's Amicus breif on the Knerr v. Mauldin case. But the more I read from him, the more I realize that he has researched case law very well, has a solid foundation for his writtings, and that he is attempting to educate, in his own way, surveyors.

In a similar vein, part of Curtis Brown's motivation for writing books was that he saw a real need in the profession to disseminate knowledge from case law. I did not particularily like how Jeff Lucas made a point of saying something like: "let me tell you how Curtis Brown got it wrong". Sometimes the messenger has a abrasive way of saying things, but the message is solid.

Curtis Brown's opinions changed over time as case law evolved and he learned more. For example on the Surveyor's role in unwritten rights.

I do not remember Lucas using the pejorative "Deed Staker", but that term has been around for a long time, even before Lucas came on the scene.

The quote in the OP was from Don Wilson's book "Interpreting Land Records"

"Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities.
"...The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance."

J. Cooley

Warren Smith wrote:"Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities.
"...The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance."

J. Cooley

I think you intended Thomas Cooley (unless the J is for "Judge")

David,

Yep - J. for Justice

"It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly…who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat."
Theodore Roosevelt, 1910

Brown's boundary Control and Legal Principles 6th ed. section 2.11 states that "there are two two particular decisions that each boundary survey should take notice of:"

One is the Rivers vs. Lozeau 539 So.2d 1147 (1989) case:

“In working for a client, a surveyor basically performs two distinctly different roles or functions:

First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the “original surveyor” and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line.

Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he “traces the footsteps” of the “original surveyor” in locating existing boundaries. Correctly stated, this is a “retracement” survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a “following” or “tracing” surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it” [emphasis added].

Speaking of Rivers v Lozeau and the importance of reviewing all of the evidence. This is a very misunderstood case. From Moorhead failing to use its own evidence of the original W 1/4 corner, to who was involved in the case, many have opined on the case without fully reviewing all of the particulars.

Case in point.

In the August 30, 2010 POB article "Traversing the Law", the author, Jeff Lucas, objected strongly to the case's outcome, and in doing so made the following statements: "...The BLM conducted a dependent resurvey within the section, throwing out the local survey and claiming about 28 feet along the north boundary." and "In their ruling in favor of the BLM, a Florida court of appeals stated..."

This led many readers of the article to believe the BLM rejected local control during their subdivision of the section. Problem is, the BLM never subdivided the section. And, although the BLM did perform a dependent resurvey of a portion of the exterior boundary of the section some years prior to the private survey that was contested, the BLM was never party to the case, was never called to testify on the case, AND, their dependent survey of the exterior boundary was never called into question. In fact, it was never contested in the IBLA, the Florida courts, or in any other judicial setting. Unfortunately, the readers of the POB article were incited by the author and much arm chair quarterbacking ensued thereafter based on that fundamental misdirection.

What many have not realized is that a private survey company found the original W 1/4 corner. Some years later the same company came back to subdivide the section, but did not find that original corner still in place. They then ignored their earlier notes and measurements to the original corner and set a new corner based on proportionate measurement, solely utilizing the original GLO record measurements. They then proceeded to subdivide the section based not only on their newly proportioned W 1/4 corner, but also utilizing a procedure of "stubbing in" the C-1/4. Later, the BLM performed a dependent resurvey of the west section line. During their research, they uncovered the earlier Moorhead notes which showed recovery of the original 1/4 as being not at GLO record mid point, nor on line. The BLM then correctly used the earlier Moorehead notes and measurements of its true location as the best evidence to be used in re-establishing the corner in its original position (isn't that basis what originally started this thread?)..

A later private surveyor (Whit Holley Britt) declared the interior aliquot lines that Moorehead set to be in error, being that Moorehead's second survey ignored its own evidence of the true position of the original corner, and that Moorehead stubbed-in the C-1/4. The court never questioned the BLM's dependent resurvey. It was never contested by either party. What the court actually decided was the question if whether Moorehead's incorrectly located interior aliquot lines rose to the level of original survey, being as they were the first surveys inside of the section. The court said no. The court stated that Moorehad incorrectly located the aliquot subdivision lines and that Moorehead was not considered an original surveyor solely by virtue of being the first one to set interior section lines

William Magee = Keith Williams???? No mention of the "Bogus Theory" though. Hmmmm?????

Read about Colonel William Magee here:

http://www.cagenweb.com/shasta/bios/mageewilliam.html

My guess would be that William Magee = Pat Savage of Huntington Beach

But thank you for that background on the Rivers v. Lozeau case Mr. Savage, or whoever you are.

The court did carefully consider the effect of original establishment on the ground of a boundary and a Surveyor’s role in boundary retracement, don’t you think?

They left us with this eloquent description of a Surveyor’s duty to a client:

“In working for a client, a surveyor basically performs two distinctly different roles or functions:

First, the surveyor can, in the first instance, lay out or establish boundary lines within an original division of a tract of land which has theretofore existed as one unit or parcel. In performing this function, he is known as the “original surveyor” and when his survey results in a property description used by the owner to transfer title to property that survey has a certain special authority in that the monuments set by the original surveyor on the ground control over discrepancies within the total parcel description and, more importantly, control over all subsequent surveys attempting to locate the same line.

Second, a surveyor can be retained to locate on the ground a boundary line which has theretofore been established. When he does this, he “traces the footsteps” of the “original surveyor” in locating existing boundaries. Correctly stated, this is a “retracement” survey, not a resurvey, and in performing this function, the second and each succeeding surveyor is a “following” or “tracing” surveyor and his sole duty, function and power is to locate on the ground the boundaries corners and boundary line or lines established by the original survey; he cannot establish a new corner or new line terminal point, nor may he correct errors of the original surveyor. He must only track the footsteps of the original surveyor. The following surveyor, rather than being the creator of the boundary line, is only its discoverer and is only that when he correctly locates it”

The court’s decision revolved around lines as originally established on the ground:

“In 1982 the U.S. Bureau of Land Management did a "dependent resurvey" of the lands of the U.S. Forestry Service which retraced the lines of the original government survey and identified, restored, and remonumented the original position of the corners of the original U.S. government survey. This remonumenting of the original government survey, along with a 1986 survey by Whit Holley Britt, made obvious to all the true location of the north line of this quarter-quarter section on the ground and that the Moorhead monuments intended to denote that line were actually located 28.71 feet north of the true location of that line as it was originally established by the official U.S. government survey and reestablished by the 1982 government "dependent survey."

“THE LAW APPLIED TO THE FACTS OF THIS CASE In establishing the internal lines within Rizzo's subdivision, Moorhead acted as an "original surveyor" but in attempting to locate and monument Rizzo's external boundary lines which are described by reference to the federal rectangle system of surveying, Moorhead was a "following surveyor" and not only failed to properly find the northern boundary of this quarter-quarter section where it was located by the original government surveyor (and also re-established by an authorized federal government resurvey) but to evidence his erroneous opinion as to the true line, the Moorhead surveyor placed monuments 28.71 feet north of the true north line of this quarter-quarter section. From the time the federal government granted this quarter-quarter section to the original grantee down to the Rizzos, the title conveyed was to a tract of land located according to the original government survey and by the deed from the Rizzos to Brown, and subsequent deeds, the Lozeaus acquired title to the north 400 feet of this quarter-quarter section according to the true boundary line established by the original government surveyors. This is true regardless of the fact that Mr. Rizzo showed Marcus Brown the erroneous monuments set by the Moorhead surveyors and regardless of where anyone erroneously thought or believed the correct location of this land boundary line to be. Neither the title to land nor the boundaries to a deeded parcel move about from time to time based on where someone, including a particular surveyor, might erroneously believe the correct location of the true boundary line to be. In 1975, the Rizzos conveyed to appellant Rivers' predecessor in title property the northern boundary”

The Courts have long held that boundaries as established upon the ground hold over re-interpretation of the map or deed.

The Knerr v. Mauldin case, although unpublished, was instructive in how the courts perceive boundaries. There an unrecorded survey was held as establishment of the boundary upon the ground over a theoretical plat location.

The case posted on this forum a year or so ago where Howard Brunner was the surveyor on the prevailing side also focused on establishment upon the ground. Belle Terre Ranch Inc. v. Kenneth C. Wilson:

“No one disputed that the deed description was correct or tried to “add to, detract from, or
vary the terms of a deed.” (Ibid.) Rather, the parties’ dispute revolved around locating
on the ground the boundaries described in the deed. (See Bloxham, supra, 228
Cal.App.4th at pp. 737–738.) Both expert and nonexpert testimony is admissible to
prove the location of “monuments, corners or lines as actually laid out on the ground by
the official surveyor.” (Id. at p. 737.) Such testimony “is not accepted for the purpose of
varying or contradicting the terms of the deed, but to aid the trial court in its difficult task
of translating the words of the deed into monuments on the surface of the earth . . . .”
(Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 741.)
"
The court concluded that extrinsic evidence was admissible as to location.

"…finding where lines have already become established upon the ground"

I, too, am still waiting for the full citation to the 1994 CA court case mentioned in Post #4.

That was an extract from Bryant v. Blevins, where the Court was comparing Ernie v. Trinity Lutheran, Mesnick v. Caton, and Finley v. Yuba County Water Dist. to distinguish when the application of the agreed-boundary doctrine would apply.

The preceding sentence from that opinion reads as follows:

"... numerous Court of Appeal decisions have held that the doctrine should not be applied broadly to resolve boundary disputes where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from the legal description set forth in an existing deed or survey."

Context is everything!

[edit] cite is 9 Cal 4th 47

From the Knerr v Mauldin case:

"O'Neill located a number of monuments Eades and Zehfuss had set in the interior of the subdiviison. These monuments had been in the ground since the 1960's. Surveys prepared since then showed a "long-term asquiescence" in and a "definite pattern of respecting occupation" of these monuments by subsequent surveyors. O'Neill said that most surveyors after Eades and Zehfuss relied on the monuments they set."

While not published, still instructive in how the courts operate.

As Paul Harvey would say: "and now,.... for the rest of the story"

Interesting read on Knerr v Mauldin, see page 4, LA Chapter October Meeting Recap:

http://www.oc-surveyors.org/pdf/Novembe ... Corner.pdf

Knowing what I know about the case, I'm glad I'm not alone in stating it is a good thing this case went unpublished. Although think how fine things would be if grab a pipe and go surveying was truly elevated by the courts. First monument in wins, no matter if recorded or what methodology used. Liability be gone. Set your monument where ever and accept what ever you find as controlling. Good as gold. Every survey would be an original survey.

I exaggerate only a little.

Lee Hixson wrote:I, too, am still waiting for the full citation to the 1994 CA court case mentioned in Post #4.

Cut and paste the text into Google. You'll get a few hits.

Steve Martin wrote:Interesting quote William. Can you provide the full citation for context?

The Magee quote is from Bryant v. Blevins, an agreed boundary doctrine case. Some Courts have steered clear of that case (a weirdly strict opinion considering most California Case Law tends to be a lot less than strict) by avoiding any mention of the Agreed Boundary Doctrine. If the Superior Court treats it as a finding of fact then the Appellate Courts will almost certainly affirm.

Our Parole Evidence Rule runs to over 80 pages in Witkin's Summary of California Law (a legal treatise) because there are a lot of exceptions and outs.

Walsh v. Hill, 38 Cal. 481, 487 (1869): “In conclusion, upon this branch of the case we deem it proper to say, that in the construction of written instruments, we have never derived much aid from the technical rules of the books. The only rule of much value - one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books - is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was; then, taking it by its four corners, read it.”

WHITE v. CLAUS SPRECKELS,, 75 Cal. 610 (1888): "What are boundaries is a matter of law; but where they are is a matter of fact. ( Bolton v. Lann, 16 Tex. 96.)"

Finley v. Yuba County Water District, 99 Cal.App.3d 691 (1979):

"Plaintiffs correctly state that the bases for this doctrine are that when there is uncertainty as to the true boundary between coterminous owners, such owners may, expressly or by implication, fix a boundary line by a fence or otherwise. Acceptance or acquiescence in the line so fixed for a period equal to that prescribed in the applicable statute of limitation (five years) establishes the agreed boundary as the actual boundary. The object of this rule is to secure repose, to prevent strife and disputes concerning boundaries and make titles permanent and stable. As early surveys were often inaccurate, and the monuments and corners set by early surveyors may have vanished, courts have often relied on the doctrine of agreed boundaries to settle disputes. In cases of doubt and uncertainty, courts have been favorably disposed toward private agreements designating boundary lines. Uncertainty as to the location of a boundary may be proven by direct evidence or inferred from the circumstances surrounding the parties at the time when the agreement is deemed to have been made. An agreed boundary line may be established deliberately, by acquiescence or by mistake. Therefore, a boundary established pursuant to the doctrine of agreed boundaries supersedes the original true boundary should that boundary and the variance be subsequently discovered."

"Listen a hundred times; ponder a thousand times; speak once." author unknown