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Eminent Domain
The Town of Peace Valley acquired the Northwest Quarter of Section 16 by Final Order of Condemnation (signed by local Judge Henry X. Harper) in 1950. This was for the purpose of building a new Sewer Treatment Plant. Town Surveyor Ralph Kramden assisted by Norton surveyed the parcel identifying the original GLO corners as shown on the accompanying diagram. Unfortunately they failed to find the existent corner to Sections 8, 9, 16 & 17 which they set by double proportion. The boundaries were fenced with 8 foot chain-link topped by barbed wire per the Kramden survey and have been so occupied ever since.
Painter Bob Ross moonlighting as a Surveyor just recently uncovered the original stone section corner bring to light the conflict. Everyone agrees that this is definitely the undisturbed original monument. Town Attorney Kaspar Gutman told the Peace Valley Herald-Examiner newspaper that the town “definitely owns up to the fence line” but offered no further analysis despite the fact that he is a “man that likes to talk.”
I want to make two things clear: 1) the description is the NW1/4 with no mention of the Kramden Survey and 2) there is no answer key (I have some idea based on research of California decisions and statutes, but those could be undermined by further information).
What is the correct analysis of this problem?
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27 Replies
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Inverse condemnation of that part not within the 1/4, or full compensation for the area enclosed even though not described. Town owns to fence but might have to pay someone for that for that area. But some States have statutes and/or case law addressing this where there is a time limit to challenge for compensation. Without a large fence, probably a challenge could still be made based on just discovering the problem. With the fence, it could be more difficult but still possible. The answer might be found in the enabling legislation of the sewer treatment plant itself. In NY you can find this in some of the canal takings legislation (different rules for different canal areas).
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If you are involved in this survey then I presume that the state of CA has an interest one of the other three sections so prescriptive rights or adverse possession may not apply. Depending on the value of the land in question I suggest you map it (file a record of survey please, I know it is extremely difficult for the “official” surveyors) then work up a boundary line agreement or lot line adjustment document.
If you are asking “what will the courts rule when all is said and done?” then I expect that whoever hired Mr Kramden made a bad call but the three neighbors that left that fence in place for 60 years with no comment may have legally acquiesced to the Kramden corner
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Good I’m on the right track there. There is a five year statute of limitations on actions in inverse condemnation in California. If the invasion was less than five years ago the Agency wouldn’t have to give up the property but they would have to pay for it. If it was more than five years ago than the private owners would be out of luck. I haven’t extensively read cases to find guidance on what an invasion is. If there was no fence but the agency set the monument would that be enough of an invasion, not completely sure.
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I have no opinion regarding the question of ownership but I am amazed that Bob Ross was allowed inside of the fence to search for one of his friendly little rocks. Not to mention that he found it undisturbed by construction of said sewer plant.
Not that I am insinuating that he might have been smoking something legal. -
Good I’m on the right track there. There is a five year statute of limitations on actions in inverse condemnation in California. If the invasion was less than five years ago the Agency wouldn’t have to give up the property but they would have to pay for it. If it was more than five years ago than the private owners would be out of luck. I haven’t extensively read cases to find guidance on what an invasion is. If there was no fence but the agency set the monument would that be enough of an invasion, not completely sure.
Dave, I doubt the monument would be an invasion. But occupation based on it would be. Noise is an invasion (airports) so it wouldn’t have to be physical necessarily. If it was vacant/unused and the fence just went up, someone might have a case? I don’t know but I bet you find some cases similar to your situation.
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Most surveyors won’t like this but the truth is the court doesn’t care where the corner mark was before 1950 provided a legal boundary is established.
Where the court finds from the evidence that the corners and lines alleged to have been lost or in dispute have been established by acquiescence of the parties for the statutory period, it is unnecessary for the court to proceed further and ascertain where the lines and corners were originally located, or where commissioners might locate them. (in 2019)
It is the duty of commissioners appointed to locate lost or disputed corners and lines to first ascertain, if possible, their original government location; but if this cannot be done then they should proceed under the rules and by survey to ascertain where they were originally located, and mark the same as the original government corners and lines, and report their doings to the court. If, however, acquiescence of the parties in a certain line is pleaded and proved no further investigation as to the government lines and corners will be made by the court, but their agreement, which may be inferred from long acquiescence, will determine the controversy
Next question: Why screw up the title with sliver descriptions, etc etc.? The NW/4 desc has worked fine with the legally established lines until now. No, Let’s upset the peace in Peace Valley of all places.
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Good I’m on the right track there. There is a five year statute of limitations on actions in inverse condemnation in California. If the invasion was less than five years ago the Agency wouldn’t have to give up the property but they would have to pay for it. If it was more than five years ago than the private owners would be out of luck. I haven’t extensively read cases to find guidance on what an invasion is. If there was no fence but the agency set the monument would that be enough of an invasion, not completely sure.
Dave, I doubt the monument would be an invasion. But occupation based on it would be. Noise is an invasion (airports) so it wouldn’t have to be physical necessarily. If it was vacant/unused and the fence just went up, someone might have a case? I don’t know but I bet you find some cases similar to your situation.
I’m looking. A lot of the cases are Private trying to bring an inverse condemnation case against Agency so the Agency of course alleges no taking. Some of these are regulatory takings which don’t involve boundary. What is needed is a case where Private says there is no taking and the Agency says yes there was a taking all those years ago so the limitations apply.
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Most surveyors won’t like this but the truth is the court doesn’t care where the corner mark was before 1950 provided a legal boundary is established.
Where the court finds from the evidence that the corners and lines alleged to have been lost or in dispute have been established by acquiescence of the parties for the statutory period, it is unnecessary for the court to proceed further and ascertain where the lines and corners were originally located, or where commissioners might locate them. (in 2019)
It is the duty of commissioners appointed to locate lost or disputed corners and lines to first ascertain, if possible, their original government location; but if this cannot be done then they should proceed under the rules and by survey to ascertain where they were originally located, and mark the same as the original government corners and lines, and report their doings to the court. If, however, acquiescence of the parties in a certain line is pleaded and proved no further investigation as to the government lines and corners will be made by the court, but their agreement, which may be inferred from long acquiescence, will determine the controversy
Next question: Why screw up the title with sliver descriptions, etc etc.? The NW/4 desc has worked fine with the legally established lines until now. No, Let’s upset the peace in Peace Valley of all places.
Unless there is a federal interst (or state in some states) involved…..
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The value of the land is low because it is s#/++y
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If you need to clean up the record, clean it up. Exchanging documents that appear to transfer title is not the right answer. That’s just dipping the turd in chocolate.
Settling the matter requires that you memorialize it, lest some overzealous future mathemagician convince the owners to undo the fix. Putting the owners at the mercy of a planning authority to ‘adjust’ lines to a place operation of law has already fixed it is also a bad idea.
In this case the actions (or inaction) of the owners likely fixed the boundary. That old corner might control for others and the location needs to be perpetuated. The NE 1/4 description no longer aligns with the boundaries. Somebody figured it out. Don’t sweep it under the rug for someone else to fund the treasure hunt again. Help the owners solve the problem and get paid to do it…
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Good I’m on the right track there. There is a five year statute of limitations on actions in inverse condemnation in California. If the invasion was less than five years ago the Agency wouldn’t have to give up the property but they would have to pay for it. If it was more than five years ago than the private owners would be out of luck. I haven’t extensively read cases to find guidance on what an invasion is. If there was no fence but the agency set the monument would that be enough of an invasion, not completely sure.
Dave, I doubt the monument would be an invasion. But occupation based on it would be. Noise is an invasion (airports) so it wouldn’t have to be physical necessarily. If it was vacant/unused and the fence just went up, someone might have a case? I don’t know but I bet you find some cases similar to your situation.
I’m looking. A lot of the cases are Private trying to bring an inverse condemnation case against Agency so the Agency of course alleges no taking. Some of these are regulatory takings which don’t involve boundary. What is needed is a case where Private says there is no taking and the Agency says yes there was a taking all those years ago so the limitations apply.
The way the canal cases read is that private says there was a taking and they didn’t get compensated for it. The agency agrees there was a taking and insists that the owners at the time had notice and should/could have claimed but didn’t, so time has now expired. Basically, puts the onus on the landowner to know where their boundary is and defend it.
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If you need to clean up the record, clean it up. Exchanging documents that appear to transfer title is not the right answer. That’s just dipping the turd in chocolate.
Settling the matter requires that you memorialize it, lest some overzealous future mathemagician convince the owners to undo the fix. Putting the owners at the mercy of a planning authority to ‘adjust’ lines to a place operation of law has already fixed it is also a bad idea.
In this case the actions (or inaction) of the owners likely fixed the boundary. That old corner might control for others and the location needs to be perpetuated. The NE 1/4 description no longer aligns with the boundaries. Somebody figured it out. Don’t sweep it under the rug for someone else to fund the treasure hunt again. Help the owners solve the problem and get paid to do it…
I was with you until you said the description no longer aligns with the boundary. We will part ways there. What’s wrong with the description? It tells us what is owned-not where the boundary is. The 1950 survey that established the present boundary tells us where what is owned is in Peace Valley because it was accepted. It is illegal for surveyors to reform the what is owned. I do like what you said about the old corner possibly controlling other other boundaries not involved in the west and north lines this quarter section. This is what drives us crazy. It did me for years . How can there be two section corner marks? The government didn’t mark it that way. But the legal fact is there is a 1950 monument to the NW /4 and a stone possibly controlling the lines to the north and west but not the south and east. Nothing wrong with anyone’s descriptions from what we know and nothing can be done to change what has legally occurred. There has been no unwritten transfer of title. Acquiescence is a boundary location doctrine not a title transfer doctrine.
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Please explain, ‘It is illegal for the surveyor…’.
I completely agree the owners have to do it. The surveyor is often the best person to walk them through the process. Leaving the disconnect between the record and the ground is a landmine. Aligning them benefits everyone if it is done properly. The key is knowing what ‘properly’ looks like…
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I deliberately setup the OP so that the survey of the Sewer Treatment Plant encroached on the neighbor’s because it missed the original monument. This was because I was mainly interested in the inverse condemnation angle.
I’m not convinced the DP corner can become an established location when the original exists because the original is mentioned by reference in all of the title Deeds. However, this will vary by State. It could become a corner by other means such as adverse possession or failure to timely bring an action in inverse condemnation. I think in the public use encroachment case the agency takes title via eminent domain then the private owner has the statututory period to bring an action demanding compensation or return of the property.
If the original monument was truly lost then the DP corner could be established as the true original corner even if there was a problem with the procedure used to set it. In this case inverse condemnation would not be a factor.
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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? 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. I don’t think a fence by itself is considered substantial.
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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? 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. I don’t think a fence by itself is considered substantial.
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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? 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. I don’t think a fence by itself is considered substantial.
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Dave
I understand where you’re coming from. Been there myself. Weve both studied court rulings enough to know you can probably find one that seems to work best for a particular fact. In my state the court most often will go with the alleged line when actions and time require repose.
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Please explain, ‘It is illegal for the surveyor…’.
I completely agree the owners have to do it. The surveyor is often the best person to walk them through the process. Leaving the disconnect between the record and the ground is a landmine. Aligning them benefits everyone if it is done properly. The key is knowing what ‘properly’ looks like…
My pleasure. I may start another thread if I find time. For now i will just say the title line and boundary should be the same. The survey boundary location should not change the description in the conveyance.
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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? 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. I don’t think a fence by itself is considered substantial.
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.
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