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- Posted by: roger_LS
Where do you find the Establishment Doctrines? Are they written in a particular book? Or are these just common principles from various cases?
Utah
Bahr v. Imus
https://scholar.google.com/scholar_case?case=405535334183772859&hl=en&as_sdt=5,45&sciodt=4,45
Q-2 LLC v. Hughes
https://scholar.google.com/scholar_case?case=16137547188936826263&hl=en&as_sdt=5,45&sciodt=4,45
Anderson v. Fautin
https://scholar.google.com/scholar_case?case=3610667461527379615&hl=en&as_sdt=5,45&sciodt=4,45
Utah kind out out front of the pack, as title is transferred “by operation of law” under acquiescence and in the Statute of Frauds “operation of law” is an exception to the requirement of a written document to convey title.
These three cases really cleared things up for me. Other states lots more tricky and problematic (i don’t need to worry only work in Utah)
The Utah court was influenced by the following as some of the Justices in the above cases were likely taught by this Author
The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy
I’d suspect that similar stuff exist in other states, you just need to find it.
- Posted by: LRDayPosted by: roger_LS
Where do you find the Establishment Doctrines? Are they written in a particular book? Or are these just common principles from various cases?
Utah
Bahr v. Imus
https://scholar.google.com/scholar_case?case=405535334183772859&hl=en&as_sdt=5,45&sciodt=4,45
Q-2 LLC v. Hughes
https://scholar.google.com/scholar_case?case=16137547188936826263&hl=en&as_sdt=5,45&sciodt=4,45
Anderson v. Fautin
https://scholar.google.com/scholar_case?case=3610667461527379615&hl=en&as_sdt=5,45&sciodt=4,45
Utah kind out out front of the pack, as title is transferred “by operation of law” under acquiescence and in the Statute of Frauds “operation of law” is an exception to the requirement of a written document to convey title.
These three cases really cleared things up for me. Other states lots more tricky and problematic (i don’t need to worry only work in Utah)
The Utah court was influenced by the following as some of the Justices in the above cases were likely taught by this Author
The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy
I’d suspect that similar stuff exist in other states, you just need to find it.
I have understood uncertainty to be required in agreed boundary cases so that the fiction that the boundary has not moved and land has not been exchanged can be true in order to avoid the Statute of Frauds. In the Backman Law Review article he explains the uncertainty is required so that there is consideration since boundary agreement doctrines are based in contract law and if there is no consideration (settlement of the uncertainty to gain stable title) then there can be no valid agreement.
I think the California Agreed Boundary cases have adopted the first explanation, that is uncertainty means the boundary has not moved. I don’t believe our Agreed Boundary doctrine was originally based in contract law. Our Doctrine is really an acquiescence doctrine which expressly mentions the agreement versus other states where that is implied in the background with no mention of it.
In the last two Utah cases I posted you will find that they resolved the uncertainty and title transfer issues. Read Q-2 where there is big discussion about how title transfers via operation of law. They take the implied agreement (contract law) out specifically because it gets in the way of boundary establishment. They place acquiescence more into a long term adverse possession way. No agreement needed to be proven. Uncertainty of boundary location not needed. Basically just 20 years occupation to a visible line and the title is transferred by operation of law. Doesn’t violate the Statute of Frauds as operation of law is an exception to the Statue of Frauds (in its text in the statute).
Dave,
What is the difference between a subjective case and an objective case, regarding disputed boundaries.
The main reason I’m posting here is because it says the last post was 49 years ago ???? and I’d like to see if I can change it. It is interesting in our state the supreme court ruled the opposite of Utah. we hold that the establishment of title by acquiescence is effective only on a finding by the court that the requirements for acquiescence have been met. Most of the confusion among surveyors and courts on the doctrine is caused by the thinking it MUST involve title transfer or establishment of title as our court mistakenly ruled. They also ruled it adverse possession later in the same ruling. When you mix the two doctrines there has to be title involved. I hope our court was looking for work when they made that ruling because there are thousands of boundaries in our state that meet the requirements.
- Posted by: Psweeney
Dave,
What is the difference between a subjective case and an objective case, regarding disputed boundaries.
Uncertainty means the boundary location is unknown.
Subjective uncertainty is in the minds of the property owners. Whether the boundary can be located by a Survey is not relevant. The California Supreme Court has ruled that in subjective cases direct evidence of mutual uncertainty and mutual agreement is required. I have heard many times from other California Surveyors that “the law is if it can be surveyed then the property owners can’t agree to a different location.” This is a demonstrably untrue restatement of California law because that’s not what the court said.
Objective uncertainty in its most basic form means that the boundary can’t be located by resort to the Deed descriptions. In my opinion objective uncertainty also comes about when property owners rely on an old survey although it can be shown to be inaccurate. In objective cases the California Supreme Court has ruled that the uncertainty and agreement may be inferred from the evidence and surrounding circumstances, a lower bar of proof to hurdle. This is closer to acquiescence.
Prior to 1994 our Courts allowed uncertainty and agreement to be inferred in all cases, after 1994 we have a bifurcated standard of proof.
One issue that I’ve seen happen more than once is the lawyers for the party that wants the established boundary foolishly recommend stipulating to the other side’s Survey because lawyers think the survey doesn’t matter. That is a big mistake and usually sinks their client’s case because the Courts view a survey as locating the one legal boundary and once that is done agreement to some other location is invalid. Litigation is all about a controversy between the neighbors and once they agree to the survey then the controversy goes away and the Judge thinks, “no disagreement why are you in my courtroom?”
In Virginia, a metes and bounds state, my back property line interlocks with an adjoiner. Both lines are recorded, my neighbor relies his prepurchase retracement from 1997 of an inaccurate retracement from 1972 where the surveyor located the existing corner, and then set two new corners, unilaterally moving the property line 60′ east of the original line. Is this a subjective case or and objective case.
- Posted by: Psweeney
In Virginia, a metes and bounds state, my back property line interlocks with an adjoiner. Both lines are recorded, my neighbor relies his prepurchase retracement from 1997 of an inaccurate retracement from 1972 where the surveyor located the existing corner, and then set two new corners, unilaterally moving the property line 60′ east of the original line. Is this a subjective case or and objective case.
I would call that objective because someone sought the opinion of a land surveyor who is supposed to be an expert in boundary location, the property owner has something external or objective to rely upon in locating their boundary, e.g. the survey.
However, Virginia Case Law I have read is very strict in establishment cases and it appears to me they would not enforce an establishment doctrine in the case you describe because it departs from the Deeds. Adverse Possession may work but I haven’t researched that in Virginia. I’m far from an expert in Virginia law just having read a few cases. I used Virginia as a practice subject for legal research because I knew nothing about it so had no biases and I was in Virginia and visited the Alexandria Law library. They had all the westlaw regional reporters on the shelf including Pacific, very cool.
It takes two to tango. What have you relied on?
In Virginia judicial determination of a disputed boundary line is codified common law, Va. Code ?? 8.01-179. Motion for judgment to establish boundary lines. For Plaintiff out of possession to prevail he must do so on the strength of his own title, and when he relies on his own paper title (i.) he must trace an unbroken chain of title back to the Commonwealth or (ii.) to a common grantor or (iii.) prove such a state of facts as will warrant the presumption of a grant.
I was the Defendant in possession so I searched both parcels title back to the Commonwealth, in 1727 Lord Fairfax granted 11,375 acres to Robert Carter. I researched deeds and drafted 8 parcel abstracts to scale and sequenced from 1727 to the present. I obtained and reviewed the 1972 retracement surveyor’s notes, and discovered that he first located the monumented true corner, and then set a new corner 60′ East onto my property. That is how I discovered that in the 1850’s my neighbor’s parcel had two West boundary lines, but my neighbor’s retracement survey relied on the junior West line and then projected this error 1,000 feet East onto my property. I hired a respected local surveyor to locate these surveys on the ground, confirming my deed research.
- Posted by: Dave Karoly
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.
What about a case where you have an entire city block created with metes and bounds descriptions going back to early 1900’s but now all 50′ x 100′ lots. The deeds make no mention of a survey, or call to monuments nor are there any known original survey maps of any of the created lots. All of the individual deeds call for a bearing of N88W coming off he street but there is a consistent pattern of improvements throughout the entire block, fences, buildings, walls, etc., some very old, that are all constructed at a bearing of N86W coming off the street. Thus holding record bearing on the sidelines would create significant encroachments on almost every lot.
Are the establishment doctrines in play?
Could be.
More likely original boundaries, the descriptions are for purposes of identification but the lot as laid out originally controls.
This could have been done by the builder, see:
Bullard v. Kempff, 119 Cal. 9, 14 (1897): No survey was made at the time of the sale of these respective lots, nor were the boundaries marked upon the ground otherwise than by the improvements. It may be inferred from the description contained in each deed that Hinkel had surveyed them, or at least had measured the distance from Webster street to the west line of each lot; but it does not appear that the lines had ever been marked upon the ground, otherwise than by the improvements…But the lines designated by the improvements??they being the monuments fixed by the original survey??control distances, and fix the actual location upon the ground.
Also see:
Kaiser v. Dalto, 140 Cal. 167, 172 (1903): The survey as made in the field, and the lines as actually run on the surface of the earth at the time the blocks were surveyed and the plats filed must control. The parties who own the property have a right to rely upon such lines and monuments. They must when established control courses and distances. A line, as shown by monuments and as platted by the city authorities, and as acquiesced in for many years, cannot be overturned by measurements alone.
For psweeney
And your neighbor accepted the results of your survey?
Sadly, he could not accept that he relies upon a surveyors blunder from 1972 and that he has no title for my land within the interlock. He sued me over the boundary in 2003 and lost because he failed to prove his title, the Circuit Court judge left both lines of record, and then in 2005 the VA Supreme Court denied his appeal. Unable to accept the ruling of the court, in 2007 he came onto my land with 3 helpers and a rented bulldozer and destroyed 400′ of my oak board fencing, ran over my trees and shrubs, it was horrible. I replaced my fencing immediately and posted metal no trespassing signs every 40′ or so. So we sit at a Mexican standoff. I am on the true line with my neighbor clouding my title.
CLOUD ON TITLE An outstanding claim or incumbrance which, if valid, would affect or Impair the title of the owner of a particular estate, and which apparently and on its face has that effect, but which can be shown by extrinsic proof to be invalid or inapplicable to the estate in question. (Black’s Law Dictionary)
Thanks for the response, Dave. I think this is how the lots were originally laid out. Just sent you a PM.
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