Dave,
For the original boundary corner in California to move to the 1950 surveyed DP corner, wouldn't substantial improvements be required to have been constructed in the area of conflict??ÿ I do not recall reading a case in California that will move the original boundary, when no agreement has taken place and no substantial loss occurs to accept the original corner.?ÿ I don't think a fence by itself is considered substantial.
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Substantial improvements can override the statute of limitations in agreed boundary cases. I haven't seen an agreed boundary case exactly as I describe but often the fact statements leave a lot to be desired. There is a 19th century case where the two owners had the deputy US surveyor flag the Section line then they agreed to a line 10 chains south. The court ruled that was an illegal unwritten conveyance.
"The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. 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. It is not required that the true location be absolutely unascertainable; that an accurate survey from the calls in the deed is possible, or that the uncertainty should appear from the deeds. The line may be founded on a mistake." -Ernie v. Trinity Lutheran Church,?ÿ51 Cal. 2d 702, 707 (1959), 336 Pac.2nd 525, citations omitted.
and at 708:
"Under the foregoing circumstances the line so agreed upon became in legal effect the true line. In Young v. Blakeman, supra, 153 Cal. 477, 482, it was said: "It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy ... that 'the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed,' and that if more is thus given to one than the calls of his deed actually requires, he 'holds the excess by the same tenure that he holds the main body of his lands.' " Each coterminous owner is deemed to have paid the taxes according to his deed. It is therefore not material to the defendant's claim of title by agreed boundary that the plaintiff paid the taxes assessed upon the land according to her deed." -citations omitted?ÿ
@ Dave Karoly
Does the five year statute of limitations on actions in inverse condemnation begin at the discovery of the fact or at the conception of the act of possession?
That's a good question, I'll have to see if I can find out.
Rather than Kramden & Norton, maybe they should have hired Howard, Fine, & Howard.?ÿ At least they would have had a 50% better chance of tripping over the original monument.
Here's a case I've been trying to find for a few days where the court did not allow the use of the government corner location after some time had passed because the government survey seemed misleading.?ÿ I suppose you could call this a maverick decision if you want but it has some sound reasoning in it.?ÿ This is from Washington state btw
In 1882, George H. Greer owned the west half of a particular?ÿsection. He sold to Squire the land described as the southwest?ÿone-quarter of the section." A reasonable reading of the deed?ÿwould indicate that Greer was selling the south one-half of his?ÿland, but if the federal government rules were applied the deed?ÿland would have been bounded on the north by a line constructed between the east and west quarter corners of the section, wherever they may have been.?ÿ The parties did not know?ÿof the location of the west quarter corner, and a surveyor, unable?ÿto find it, set a new monument creating a boundary enclosing?ÿapproximately the amount of land the grantee expected to?ÿreceive. A fence was built according to the survey. Then, four?ÿor five years after the sale, evidence of the government quarter?ÿcorner was discovered approximately one thousand feet north of?ÿthe fence."?ÿAn equitable solution to the ensuing dispute would be to?ÿhold both parties to the boundary marked by the fence. They?ÿdid not know of the quarter corner when they transferred the?ÿland, and their action would at least evidence acquiescence in?ÿthe fenced line. But Squire initiated the dispute, and in 1891,?ÿthe state supreme court remanded it back to trial.?ÿ The?ÿsupreme court stated that the trial court must presume that the?ÿdeed embraced land up to the line between the original quarter?ÿcorners, but that since the government survey in this instance?ÿseemed "misleading" the parties would be allowed to prove, with?ÿextrinsic evidence, that the "intention" of the deed was best?ÿshown by the fence.?ÿ The same dispute reached the state?ÿsupreme court again in 1894 where it was still not conclusively?ÿsettled. Town v. Greer" represents the third attempt at resolution, twenty-seven years after the original conveyance. Only in?ÿthat latter case did the court finally come to the equitable conclusion it could have reached in the first case; it held the parties?ÿto the fenced boundary because the totality of the evidence?ÿshowed that the fence was the "intended" boundary.?ÿ?ÿ
The actions of the parties to the first sale evidenced a construction of a boundary line that represented a reasonable interpretation of the deed. Fairness would require adherence to the?ÿexpectations of the parties to the transaction first creating the?ÿboundary. The court's earlier presumption, however, that a deed?ÿusing such a description would be controlled by the federal government rules, essentially allowed the grantee to attempt a form?ÿof "land-grabbing" when the quarter corner was finally discovered. If the court had, in the original case, held the parties to an?ÿequitable solution, a wasteful and lengthy dispute would have?ÿbeen avoided.?ÿ?ÿ
From the text of?ÿ Town Vs Greer:
California has a recent unpublished case (Davis v. Meidinger, 3rd District Court of Appeals 2018) which amounts to a similar idea, I will try to summarize:
Government Lot 11 of Section 21 is shown on the 1878 Plat as 37.53 acres.?ÿ The property was acquired by Berger before 1962, they thought it was 40 acres, they left two children each one-half but the descriptions seem to indicate one maybe got 20 acres (hard to tell from the case).?ÿ By 1984 the Wilsons owned both parcels and Mr. Wilson was aware that they weren't equal.?ÿ Wilson sold the smaller northern parcel to Draper using the old legals (I think) but realized that the parcels were supposed to be equal.?ÿ So Wilson and Draper ran a dividing line out on the ground and made a written, signed (but not notarized or recorded) boundary line agreement which describes the physical boundary. The Drapers and Wilsons occupied and used their lands in accordance with this boundary. In the mid-1990s Draper sold to the Davises and showed them the boundaries.?ÿ About the same time Wilson sold to Meidinger and and showed him the boundaries.
The Davises and Meidinger continued to occupy and use their lands in accordance with their common boundary as established physically for 20 years. Somehow Meidinger figured out that his parcel should be larger (case doesn't say how). The cases states the actual size of Lot 11 is 33 acres and Meidinger theoretically should get 2/3rds of that.?ÿ Even more significant is that most of Davis's improvements would now be on Meidinger's property.
The Trial Court ruled (and affirmed here) that the agreed boundary is the legal common boundary, Meidinger lost and Davis won; the lots are roughly equal in size.?ÿ A Court could rule the agreement invalid because Wilson knew where the boundary was located and should have used a proper Deed transfer, not a boundary line agreement.?ÿ On the other hand, this was done in conjunction with the sale to the Drapers so the Court here has the best answer, in my opinion.?ÿ Deed descriptions are conclusive as to the identification of the property being transferred but more evidence is admissible in determining the precise size, shape and location than just the words of the description.
What is really interesting here is that Mrs. Davis argued the case in pro per before the Appellate Court.?ÿ In pro per cases almost always go badly wrong but not this one.
https://scholar.google.com/scholar_case?case=15954965105259393967&hl=en&as_sdt=2005&sciodt=2006
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