-
Deed reformation
Last week in the Eminent Domain thread I made a statement to the effect that deed reformation is illegal. First let me make it clear I believe there is a time and place for correcting deeds. My point is that there is a title issue in this circumstance only when the occupant takes hold of property which is known to the actual owner. This is defined as notorious possession in Black’s Law Dictionary. (adverse possession) Surveyors are not to determine adverse possession which involve title. In most cases such as this neither owner intended to occupy more or less than the conveyance calls for. (acquiescence) After a required time the boundary becomes legal by continued use. That makes it a boundary location problem and not a title problem. By their actions over the required time the owners have agreed to the boundary location of what the conveyance calls for. Under this circumstance the alleged line is the true line and what the original conveyance calls for. There is no need to change the record. Changing the description to include land in another quarter section is illegal because you are changing and clouding title. Some would say the owners need to agree to the fence location because the stone was discovered. The agreement is done and over with. They could now agree that the stone is the boundary if both owners want to but they are not bound to.
There was a case within the past couple of years in our state where the front and back pin on the platted subdivision lot existed. One owner who owned only the lot (no more or less) made improvements across the straight line that went unchallenged. The court ruled the boundary of the lot started at the front pin, followed the improvements and ended on the back pin. They did not change the title. The next surveyor did creating a parcel not called for in the conveyances outlining the improvements in the adjacent lot giving that parcel plus the original lot to the owner that won the case thereby slandering title of the lot owner who owned the entire adjacent lot in his conveyance.
-
35 Replies
-
So you can have your boundary line agreement, but it can never be brought to light exactly where it is? I don’t get it.
-
This is another example of why Boundary Surveying needs to be taught in law schools, not Civil Engineering schools.
. -
the survey shows exactly where the boundary is.
-
In California, if it’s a section line which is known then the Court will say the fence is in a convenient alignment, it wasn’t intended to be a boundary.
if the boundary was not originally monumented then they are more likely to accept a boundary which is “off”, in one case a 1/16th line run 500′ too far north.
If the uncertainty is subjective then they will accept the boundary but require direct evidence of mutual uncertainty and mutual agreement.
If the uncertainty is objective then they can infer the uncertainty and agreement.
-
Below is a brand new agreed boundary case (or is it, it’s a weird one). I’m reading it and I’m think hmm amateur hour, I don’t think the lawyers here understand the agreed boundary doctrine. About halfway down it turns out the defendants represented themselves, oops.
Here’s an interesting case from 2018 where the court upholds the agreed location:
https://scholar.google.com/scholar_case?case=15954965105259393967&hl=en&as_sdt=2005&sciodt=2006
-
Thanks Dave. Good cases explaining what it takes to prove agreed boundaries in CA.
-
“After a required time the boundary becomes legal by continued use. That makes it a boundary location problem and not a title problem.”
The only issue I see with this statement is that, unless there is a title opinion provided by an attorney, we would have to make this title determination (that the elements and required time are satisfied) to base our boundary decision on – something a surveyor cannot do. It may be readily apparent given an examination of the title – but don’t think for a second your state bar is as anemic at policing unlicensed practice as your state surveyor’s board.
-
…There was a case … in our state …. The court ruled the boundary of the lot started at the front pin, followed the improvements and ended on the back pin. They did not change the title. The next surveyor did creating a parcel not called for in the conveyances outlining the improvements in the adjacent lot giving that parcel plus the original lot to the owner that won the case thereby slandering title of the lot owner who owned the entire adjacent lot in his conveyance.
The court ruled. The next surveyor set the boundary in accordance with the ruling. I don’t see a problem here.
-
“After a required time the boundary becomes legal by continued use. That makes it a boundary location problem and not a title problem.”
The only issue I see with this statement is that, unless there is a title opinion provided by an attorney, we would have to make this title determination (that the elements and required time are satisfied) to base our boundary decision on – something a surveyor cannot do. It may be readily apparent given an examination of the title – but don’t think for a second your state bar is as anemic at policing unlicensed practice as your state surveyor’s board.
A boundary established via one of the boundary location doctrines (agreed boundary, acquiescence, etc.) has absolutely nothing to do with the “title”. We DO NOT need the “opinion” of a “title” attorney to form a well reasoned opinion on the location of a boundary. If a licensed surveyor can’t do this, who else is supposed to be the experts in this area?
The required elements of a boundary location doctrine are not a title issue, they are right in the wheel house of a boundary surveyor, not an attorney. Attorney’s are educated to practice law, boundary surveyors should be the experts at boundary location. (Hint – boundary location and the required elements of the boundary location doctrines have very little to do with math and measurements).
Bill is correct. Boundary surveying education needs to be completely removed from math and engineering.
-
I just looked in my Black’s Law to remind myself – Adverse Possession makes no mention of boundary, only title. Acquiesence is another animal entirely, and from what I understand in the states I’m licensed in (all colonial) that courts are loathe to make a ruling via acquiesence, because adverse possession is already well defined (acquiesence isn’t). Obvioulsy a surveyor has to make a professional opinion, but I would like to say I’m neither a deed staker nor a fence surveyor. Somewhere in between. The lines of occupation usually reflect the deed pretty well or vice versa, so I really don’t usually see much of a problem. The biggest issue I run into is if I want to research back far enough and straighten newer deeds (and fence lines) out via the original patent line. That would (usually) be a rather ridiculous thing to do. I also sometimes survey vast tracts with no apparent possession of any lines, and many deed issues. I always try my best to err on the side of easily defensible decisions (because they’re usually the right decisions). I think in colonial states if you’re hanging your boundary decision on acqueisence your thought process is shaky at best. How do you argue tacit consent when most parties are usually dead – or will deny? If I have overlapping boundaries on a project, and a clear case of adverse possession – I’d try my best to put my advocate hat on and get the parties to agree to a boundary line agreement. Stay out of court and save big $. I think that is the part of our job that is unfortunatley taught and mentored the least.
-
Adverse possession is NOT a boundary location doctrine – period.
We need to be thoroughly versed in the common law in the states in which we practice – not just a passing understanding.
I do agree, if we do not thoroughly understand the location doctrines and how and when to properly apply them, our decisions would be “shaky” at best, and worst case, negligent.
“How do you argue tacit consent when most parties are usually dead – or will deny?” Huh? We shouldn’t be “arguing” anything. We should be able to properly collect the relevant evidence, then intelligently and properly apply the relevant law in forming our expert opinions on the location of the boundary.
Really? You are determining where there are clear cases of adverse possession? I thought this wasn’t in the realm of boundary surveying.
-
Seems we’re mostly in agreement, just saying it different ways. I don’t make determinations of adverse possession. But if at face value my internal dialogue tells me if the person got a title lawyer with a modicum of experience they would win an AP case, I don’t think we should just ignore that fact and “sweep it under the rug” to get a plat out. I expressly tell the client “I can’t make an opinion on title, but I would ask an attorney if…”. I was trying to use an economy of words and failed to make myself clear. I brought up tacit consent because that is one of the main elements of acquiesence. I’ve researched acquiesence from time to time over the last year or so, the case law is nearly non-existent.
-
In which states are these location doctrines nearly non-existant? Some states use different words than acquiescence.
-
…There was a case … in our state …. The court ruled the boundary of the lot started at the front pin, followed the improvements and ended on the back pin. They did not change the title. The next surveyor did creating a parcel not called for in the conveyances outlining the improvements in the adjacent lot giving that parcel plus the original lot to the owner that won the case thereby slandering title of the lot owner who owned the entire adjacent lot in his conveyance.
The court ruled. The next surveyor set the boundary in accordance with the ruling. I don’t see a problem here.
Yes he did locate the boundary correctly. He had no authority to describe it as part of a lot the owner did not have title to. The court did not hand over title. It ruled where the extents of the existing title was.
-
In which states are these location doctrines nearly non-existant? Some states use different words than acquiescence.
Here is what one state supreme court had to say about the nearly non-existent agreement doctrine. That decision is grounded on a series of decisions in this court, supported by many cases in the courts of other states, recognizing the occupation to a boundary line acquiesced in by the parties as being founded on a claim of right, regardless of whether the boundary by acquiescence is the true boundary.
-
Linebender, I agree. I’ve studied many states cases on these doctrines and have yet to not find cases that address these issues quite similarly. But, I haven’t found a state that pretty much refused to acknowledge acquiescence and/or agreement as was alluded to. But, I haven’t looked closely at all states, thus my question.
-
Virginia has an acquiescence doctrine but it is limited to objective cases which pretty much neuters to purpose of the doctrine in the first place.
-
Seems we’re mostly in agreement, just saying it different ways. I don’t make determinations of adverse possession. But if at face value my internal dialogue tells me if the person got a title lawyer with a modicum of experience they would win an AP case, I don’t think we should just ignore that fact and “sweep it under the rug” to get a plat out. I expressly tell the client “I can’t make an opinion on title, but I would ask an attorney if…”. I was trying to use an economy of words and failed to make myself clear. I brought up tacit consent because that is one of the main elements of acquiesence. I’ve researched acquiesence from time to time over the last year or so, the case law is nearly non-existent.
The establishment doctrines generally avoid questions of title. The doctrines are sort of an algorithm to determine if the Court should recognize the established boundary as being the common boundary between adjoining Deeds. Title is not in question because both parties have clear title to their respective tracts, wherever they may be located. Where neighbors don’t know where their boundary is (uncertainty) they can establish the boundary as a way to resolve their uncertainty. There is not a transfer of title because the fiction employed is the boundary has not moved, it has just been defined, therefore no transfer of title has occured and these agreements or acquiescence are not within the Statute of Frauds and may be oral.
Acquiescence is often thought of as a “fence” doctrine but it is actually a theory of repose, once monuments are accepted for long periods of time they mark the boundary, this can be a fence, or stakes set long ago. Fences are just common boundary demarcation objects but not always. When you find the uncalled for pipe off 0.5 feet north and 0.8 feet east yet accept it, that is recognizing that acquiescence has occurred.
Another common misconception is that a Judge or Lawyer is needed to rule or opine where the acquiesced boundary is in apparent conflict with the Deed. This is not the case as it would be in Title Conflicts. The often stated purpose of these Doctrines is Judicial Economy, let the neighbors work out their differences and keep it out of Court. The Surveyor is merely recognizing the established reality. Notice in these cases is actual, the apparent boundary puts the world on at least inquiry notice to find out why the physical object marking the possession lines is there.
-
Where do you find the Establishment Doctrines? Are they written in a particular book? Or are these just common principles from various cases?
-
In California they are Common Law Doctrines. They are:
Agreed Boundaries, leading case is Bryant v. Blevins, 9 Cal.4th 47 (1994), 884 P. 2d 1034. This is by far the most common establishment doctrine in use in California.
Practical Location, French v. Brinkman, 60 Cal.2nd 547 (1963), 387 P.2d 1
Boundary by Estoppel, Grants Pass Land & Water Co. v. Brown, 168 Cal. 456 (1914), 143 P. 754
California does not have a pure acquiescence doctrine such as many states where the elements are long time acquiescence in the physical object (such as a fence or blazed and painted trees) as a boundary. California requires agreement in acquiescence cases although the agreement may have originally been thought of as a fiction in early Agreed Boundary cases (generally before another leading case, Clapp v. Churchill). Agreement can still be inferred in objective cases.
Log in to reply.