Brian Allen, post: 355745, member: 1333 wrote: I hear what you are saying Duane, but what circumstances in boundary surveying are ever "cut and dried"? The only ones that ever claim things are "cut and dried" are those that rely solely on measurements and mathematics - technicians and/or engineers. As you know boundary surveying is rooted in boundary law. And as we all know, anything can happen when hundreds of "what if's", "well maybe's", and "I don't knows" are thrown into the mix.
The fact that people may change their stories, falsify documents, hide evidence, and there may always be evidence that we can't find because we cannot spend years investigating each and every line or corner, cannot change what we should be doing. We can only (and should only) be diligent in our search for evidence, and properly apply the correct boundary principles in reaching our well reasoned professional opinion on the location of the boundary in question.I really don't think anyone would not, if possible, clear up the record using whatever correct and reasonable means that would do so.
I agree Brian. But I think this particular situation is more susceptible to disagreement than many others. I'm not going to criticize Moe for taking the position he is on it. The description does not have conflicting calls to choose from. It can be placed perfectly easily by any surveyor, and that placement can be defended. My solution (and yours) is a bit more dicey due to inherent uncertainties of evidence and court decisions. I don't think the evidence presented leaves a strip, and I can make a strong argument to that affect, but a strong argument can be made that the deed is clear and if a strip was left, too bad. I would try to fix it with the landowners. The title company isn't going to care, and isn't going to pay or put any time into a situation like this.
Now I understand why we require physics in our curriculum. We need to know where people go when they step into a gap...
Seriously,
The Courts have given us a clear path to prevent many of these scenarios from escalating. The facts here (as presented) show a clear pattern. The State purchased a tract and the boundary was established on the ground. The grantor then sold a second parcel using different language. The 'potential strip' was not reserved, was not used and has been acquiesced not to exist be the only potential holder of title.
I would record a survey with the evidence shown. It would show one boundary at the location established by the senior (first) grantee. Our file would contain the sworn statement (taken by an LS) from that party.
We gather, evaluate and memorialize evidence. We issue a Professional opinion in accordance with the law. If we are good at business we cash a check that covers the cost of doing business, potential liability and reasonable profit...
thebionicman, post: 355783, member: 8136 wrote: Now I understand why we require physics in our curriculum. We need to know where people go when they step into a gap...
Seriously,
The Courts have given us a clear path to prevent many of these scenarios from escalating. The facts here (as presented) show a clear pattern. The State purchased a tract and the boundary was established on the ground. The grantor then sold a second parcel using different language. The 'potential strip' was not reserved, was not used and has been acquiesced not to exist be the only potential holder of title.
I would record a survey with the evidence shown. It would show one boundary at the location established by the senior (first) grantee. Our file would contain the sworn statement (taken by an LS) from that party.
We gather, evaluate and memorialize evidence. We issue a Professional opinion in accordance with the law. If we are good at business we cash a check that covers the cost of doing business, potential liability and reasonable profit...
Yep, that's great as far as it goes. The problem is that there are two different professional opinions on the boundary as we have seen from this thread. Now there is a survey in place for 10 years showing a gap. Does the next surveyor change the originally established line, thereby trying to eliminate the survey gap because they think the original was completely unreasonable and/or has not been relied on? Or do they hold the original survey because it's a reasonable interpretation of the deed, even though one they would have initially disagreed with? Wouldn't it be nice to have a quit claim deed (or a reformed corrected one for that matter) from the time of the original survey? A sworn statement is good if that's all you can get.
Rankin_File, post: 355751, member: 101 wrote: A sure fire recipe for- no good deed goes unpunished... :snarky:
Good pun!
Duane Frymire, post: 355861, member: 110 wrote: Yep, that's great as far as it goes. The problem is that there are two different professional opinions on the boundary as we have seen from this thread. Now there is a survey in place for 10 years showing a gap. Does the next surveyor change the originally established line, thereby trying to eliminate the survey gap because they think the original was completely unreasonable and/or has not been relied on? Or do they hold the original survey because it's a reasonable interpretation of the deed, even though one they would have initially disagreed with? Wouldn't it be nice to have a quit claim deed (or a reformed corrected one for that matter) from the time of the original survey? A sworn statement is good if that's all you can get.
The survey in place is from the early 1990's
Duane Frymire, post: 355861, member: 110 wrote: The problem is that there are two different professional opinions on the boundary as we have seen from this thread. Now there is a survey in place for 10 years showing a gap. Does the next surveyor change the originally established line, thereby trying to eliminate the survey gap because they think the original was completely unreasonable and/or has not been relied on?
I think the situation is different than stated, Duane. There aren't "two different professional opinions on the boundary." There is one set of opinions that there is one boundary separating two parcels of land and there is a second opinion that there are two boundaries separating three parcels of land. We surveyors have been trained to think of the third parcel as a "gap" and think it's our job to unfurl the red flags of warning. I was trained that way also. Since I've come to understand the reason we have land boundary laws which govern our boundary determinations, it's completely changed my way of thinking. The legal principles are designed to resolve the very conflict in evidence we have exposed in this thread.
If the fact scenario in this situation were precisely the same, yet there was a shortage in the quarter quarter, how many surveyors would espouse that the "overlap" created a third parcel of land? I hope it would be very few and ought to be none. Why? Because our logical brain would engage to realize that there is no way that the original grantor of the first 30 acres could have conveyed a portion of it by selling the N2N2. Both fact scenarios are driven by the same ultimate purpose for applying legal principles: to determine the intent of the grantor.
MightyMoe, post: 355866, member: 700 wrote: The survey in place is from the early 1990's
Surveys don't establish boundaries; landowners do. What evidence is there that the landowners have recognized and relied upon the 1990's survey? What physical improvements have they made as evidence of such reliance? If the landowners have simply ignored the survey and the supposed "problem" for the past 15 years, there's little likelihood that the survey has any impact upon their boundary. How many years of repose was in place prior to the 1990's survey? How long does it take for a surveyor to finally recognize that the boundary has been established and that there is no issue that needs to be dealt with.
Legal principles are designed to resolve conflicts in evidence with regard to boundary locations. If we rely upon a legal principle to defend your position of the boundary and that principle has created a problem, not resolved it, then perhaps we need to reconsider which legal principle we should apply in order to determine the true intent of the landowners.
JBS
Duane Frymire, post: 355861, member: 110 wrote: Yep, that's great as far as it goes. The problem is that there are two different professional opinions on the boundary as we have seen from this thread. Now there is a survey in place for 10 years showing a gap. Does the next surveyor change the originally established line, thereby trying to eliminate the survey gap because they think the original was completely unreasonable and/or has not been relied on? Or do they hold the original survey because it's a reasonable interpretation of the deed, even though one they would have initially disagreed with? Wouldn't it be nice to have a quit claim deed (or a reformed corrected one for that matter) from the time of the original survey? A sworn statement is good if that's all you can get.
Surveying a line does not create the boundary in and of itself. That requires various amounts of reliance, time and notice depending on the State. The statements of the owners appear to preclude the required fact patterns for the ones I work in.
The absolute worst 'fix' is a quit claim deed by itself. That will make it appear that property is being transferred. An agreement between the parties may include an agreement to quit claim any interest but it must be framed as a boundary agreement.
JBStahl, post: 355869, member: 427 wrote: I think the situation is different than stated, Duane. There aren't "two different professional opinions on the boundary." There is one set of opinions that there is one boundary separating two parcels of land and there is a second opinion that there are two boundaries separating three parcels of land. We surveyors have been trained to think of the third parcel as a "gap" and think it's our job to unfurl the red flags of warning. I was trained that way also. Since I've come to understand the reason we have land boundary laws which govern our boundary determinations, it's completely changed my way of thinking. The legal principles are designed to resolve the very conflict in evidence we have exposed in this thread.
If the fact scenario in this situation were precisely the same, yet there was a shortage in the quarter quarter, how many surveyors would espouse that the "overlap" created a third parcel of land? I hope it would be very few and ought to be none. Why? Because our logical brain would engage to realize that there is no way that the original grantor of the first 30 acres could have conveyed a portion of it by selling the N2N2. Both fact scenarios are driven by the same ultimate purpose for applying legal principles: to determine the intent of the grantor.
Surveys don't establish boundaries; landowners do. What evidence is there that the landowners have recognized and relied upon the 1990's survey? What physical improvements have they made as evidence of such reliance? If the landowners have simply ignored the survey and the supposed "problem" for the past 15 years, there's little likelihood that the survey has any impact upon their boundary. How many years of repose was in place prior to the 1990's survey? How long does it take for a surveyor to finally recognize that the boundary has been established and that there is no issue that needs to be dealt with.
Legal principles are designed to resolve conflicts in evidence with regard to boundary locations. If we rely upon a legal principle to defend your position of the boundary and that principle has created a problem, not resolved it, then perhaps we need to reconsider which legal principle we should apply in order to determine the true intent of the landowners.
JBS
The state purchased the land then did a survey and set monuments, then filed plats.
thebionicman, post: 355871, member: 8136 wrote: Surveying a line does not create the boundary in and of itself. That requires various amounts of reliance, time and notice depending on the State. The statements of the owners appear to preclude the required fact patterns for the ones I work in.
The absolute worst 'fix' is a quit claim deed by itself. That will make it appear that property is being transferred. An agreement between the parties may include an agreement to quit claim any interest but it must be framed as a boundary agreement.
A quit claim deed would clear it up, however, I don't think anyone is interested in doing one.
We will see, my client is a third party.
MightyMoe, post: 355874, member: 700 wrote: A quit claim deed would clear it up, however, I don't think anyone is interested in doing one.
We will see, my client is a third party.
Who would "quitclaim" what to whom? This isn't a title problem; it's a boundary location problem. You can't fix a boundary location problem with a title solution. Screws it up every time. If anything, like [USER=8136]@thebionicman[/USER] said, a boundary agreement will simply recognize the established location of the boundary. Difficulty here is getting the governor of the state to sign the agreement as directed by the state legislature. That's asking for a lot of fix for a non-existent problem.
JBS
JBStahl, post: 355882, member: 427 wrote: Who would "quitclaim" what to whom? This isn't a title problem; it's a boundary location problem. You can't fix a boundary location problem with a title solution. Screws it up every time. If anything, like [USER=8136]@thebionicman[/USER] said, a boundary agreement will simply recognize the established location of the boundary. Difficulty here is getting the governor of the state to sign the agreement as directed by the state legislature. That's asking for a lot of fix for a non-existent problem.
JBS
It appears the State has accepted the boundary as the original 'as surveyed' line. It is important to note these are aqcuired lands so the State and private parties are on an abnormally level field. The ambiguity (if we accept any exists) is related to the original grantor and the northerly grantee. While an agreement excluding the State may leave some question it should clear up the existence or nonexistence of a strip...
JBStahl, post: 355882, member: 427 wrote: Who would "quitclaim" what to whom? This isn't a title problem; it's a boundary location problem. You can't fix a boundary location problem with a title solution. Screws it up every time. If anything, like [USER=8136]@thebionicman[/USER] said, a boundary agreement will simply recognize the established location of the boundary. Difficulty here is getting the governor of the state to sign the agreement as directed by the state legislature. That's asking for a lot of fix for a non-existent problem.
JBS
DGS always thinks we are making a gift of State property (unconstitutional). Getting across that we still own the property, we aren't giving away anything, just agreeing to definition of location is very difficult. Even when the AG is settling the boundary dispute. In one case the adjoiner agreed to pay damages (he destroyed some of our traverse on his property but the Sheriff took him to task on it because we have a right of entry) and DGS got it into their head that we were selling him property which requires we declare it surplus and go to the legislature and Governor. Nuts, I tell you. Somehow we finally convinced them it is a boundary line agreement of a very difficult 19th century poorly described boundary with three theories. We agreed to split the baby.
MightyMoe, post: 355874, member: 700 wrote: A quit claim deed would clear it up, however, I don't think anyone is interested in doing one.
We will see, my client is a third party.
Most planning authorities treat a quit claim as a transfer (even when it isn't). A quit claim runs the risk of locking up the parcels due to an illegal split. A boundary agreement does not transfer property therefore no transfer, no adjustment, no split. It a tool / job thing...
JBStahl, post: 355882, member: 427 wrote: Who would "quitclaim" what to whom? This isn't a title problem; it's a boundary location problem. You can't fix a boundary location problem with a title solution. Screws it up every time. If anything, like [USER=8136]@thebionicman[/USER] said, a boundary agreement will simply recognize the established location of the boundary. Difficulty here is getting the governor of the state to sign the agreement as directed by the state legislature. That's asking for a lot of fix for a non-existent problem.
JBS
The way I read it, there are two existing established boundaries. One per government survey, established because relied on and not questioned for more than 10 years. The other per original stakeout of a deed of subdivision, established because relied on as evidenced by not being questioned for more than 10 years. In most jurisdictions a survey such as this is prima facia evidence that it's correct, and the burden of proof to overturn it moves up to clear and convincing evidence.
This is not a boundary agreement situation in my view. This is a poorly written contract problem. Ideally it should have been dealt with at the time by clearing up the language, but it wasn't. The fact that some of us disagree with the original interpretation is beside the point. As far as surveying goes, it is now a retracement, which can be done without any difficulty according to the post. Both lines can easily be retraced.
One of the first things to determine in surveying land is whether you are retracing or performing original work. The laws are completely different for each.
If there is evidence that the purchaser (or seller) of the n1/2n1/2 never accepted the original survey, then it might be a bit different, but no such evidence has been posted. In fact, just the opposite. The possible interpretation problem was brought up and ignored for more than 10 years according to the post. Because Moe is working for a third party, I assume both original subdivision surveys have been in the public record all that time as well.
At this point, if the parties can agree, they are going to need a quit claim deed.
Duane Frymire, post: 355946, member: 110 wrote: The way I read it, there are two existing established boundaries. One per government survey, established because relied on and not questioned for more than 10 years. The other per original stakeout of a deed of subdivision, established because relied on as evidenced by not being questioned for more than 10 years. In most jurisdictions a survey such as this is prima facia evidence that it's correct, and the burden of proof to overturn it moves up to clear and convincing evidence.
I don't know of any legal principle where a surveyor has the authority to establish a boundary by simply setting his points on the ground. When the surveyor's monuments (and opinion) are completely disregarded by the landowners and they continue to occupy their land in accordance with another surveyor's monuments, the second set of monuments are void. Ignoring the monuments for more than 10 years doesn't establish them as marking the boundary. The landowner's actions are what prove the monuments as irrelevant. What you have in this case is 10 years of nonreliance. Had the landowners relied upon the monuments, then I'd agree with you. I don't know of a single jurisdiction where the mere actions of a surveyor, when older than 10 years, is prima facia evidence of correctness or establishment of a boundary.
This is not a boundary agreement situation in my view. This is a poorly written contract problem. Ideally it should have been dealt with at the time by clearing up the language, but it wasn't. The fact that some of us disagree with the original interpretation is beside the point. As far as surveying goes, it is now a retracement, which can be done without any difficulty according to the post. Both lines can easily be retraced.
I agree with you here. This is not a boundary agreement situation and, yes, if we surveyors would have written the second description we would have written it as all of the QuarterQuarter less the south 30 acres. BUT we weren't asked to write the description and, as a retracement surveyor, we are bound to retrace the boundary as established by the landowners in accordance with the legal principles which govern our profession. There is only one boundary to retrace here. Yes, there may be two lines run by two different surveyors with two different interpretations. The question before the retracing surveyor is, where is the boundary. We have direct evidence of reliance by the landowners upon one boundary and absolutely no evidence upon the second line by any landowner.
One of the first things to determine in surveying land is whether you are retracing or performing original work. The laws are completely different for each.
If there is evidence that the purchaser (or seller) of the n1/2n1/2 never accepted the original survey, then it might be a bit different, but no such evidence has been posted. In fact, just the opposite. The possible interpretation problem was brought up and ignored for more than 10 years according to the post. Because Moe is working for a third party, I assume both original subdivision surveys have been in the public record all that time as well.
Just because we can retrace the footsteps which lead us to a surveyed line where the boundary has not been established, doesn't mean we have two lines. Also, just because two survey lines have been run out on the ground doesn't mean both are original surveys. All we have is a conflict between two surveys. We need to resolve the conflict between the two surveys. Survey conflicts aren't resolve by executing title documents. They are resolved by the two surveyors getting together and resolving the difference in their opinions by review of the evidence they've been presented and re-evaluating their surveys. Title documents never lend themselves well to resolving "possible interpretation problems" which everyone (except a surveyor) has "ignored for more than 10 years." The only one with showing a "possible interpretation problem" is a surveyor who has not properly interpreted the document. He's taken a document at face value and ignored the extrinsic evidence which would lead to a proper interpretation.
At this point, if the parties can agree, they are going to need a quit claim deed.
Who are you suggesting would be the Grantor in this "quitclaim deed?" The State? The predecessors of the ranch? Their heirs? Or, do we need to have a quiet title action against all of the missing heirs and the State to resolve this "possible" title problem created by a "possible interpretation problem?" It's not a title problem. It's a boundary location problem.
JBS
PS I'm not dissing any surveyor in particular here. As the title to the thread properly indicates, this is a "Age old PLSS Problem." I would have likely done the same thing 25 years ago. Now that I've spent that many (and more) years studying the legal principles that govern our profession (such as the rules of construction applied in this case), it is clear to me that the application of the rules by the surveyor is the very solution intended by the courts. It is the solution which will bring resolve to this case.
JBStahl, post: 355959, member: 427 wrote: I don't know of any legal principle where a surveyor has the authority to establish a boundary by simply setting his points on the ground. When the surveyor's monuments (and opinion) are completely disregarded by the landowners and they continue to occupy their land in accordance with another surveyor's monuments, the second set of monuments are void. Ignoring the monuments for more than 10 years doesn't establish them as marking the boundary. The landowner's actions are what prove the monuments as irrelevant. What you have in this case is 10 years of nonreliance. Had the landowners relied upon the monuments, then I'd agree with you. I don't know of a single jurisdiction where the mere actions of a surveyor, when older than 10 years, is prima facia evidence of correctness or establishment of a boundary.
I agree with you here. This is not a boundary agreement situation and, yes, if we surveyors would have written the second description we would have written it as all of the QuarterQuarter less the south 30 acres. BUT we weren't asked to write the description and, as a retracement surveyor, we are bound to retrace the boundary as established by the landowners in accordance with the legal principles which govern our profession. There is only one boundary to retrace here. Yes, there may be two lines run by two different surveyors with two different interpretations. The question before the retracing surveyor is, where is the boundary. We have direct evidence of reliance by the landowners upon one boundary and absolutely no evidence upon the second line by any landowner.
Just because we can retrace the footsteps which lead us to a surveyed line where the boundary has not been established, doesn't mean we have two lines. Also, just because two survey lines have been run out on the ground doesn't mean both are original surveys. All we have is a conflict between two surveys. We need to resolve the conflict between the two surveys. Survey conflicts aren't resolve by executing title documents. They are resolved by the two surveyors getting together and resolving the difference in their opinions by review of the evidence they've been presented and re-evaluating their surveys. Title documents never lend themselves well to resolving "possible interpretation problems" which everyone (except a surveyor) has "ignored for more than 10 years." The only one with showing a "possible interpretation problem" is a surveyor who has not properly interpreted the document. He's taken a document at face value and ignored the extrinsic evidence which would lead to a proper interpretation.
Who are you suggesting would be the Grantor in this "quitclaim deed?" The State? The predecessors of the ranch? Their heirs? Or, do we need to have a quiet title action against all of the missing heirs and the State to resolve this "possible" title problem created by a "possible interpretation problem?" It's not a title problem. It's a boundary location problem.
JBS
PS I'm not dissing any surveyor in particular here. As the title to the thread properly indicates, this is a "Age old PLSS Problem." I would have likely done the same thing 25 years ago. Now that I've spent that many (and more) years studying the legal principles that govern our profession (such as the rules of construction applied in this case), it is clear to me that the application of the rules by the surveyor is the very solution intended by the courts. It is the solution which will bring resolve to this case.
If surveyors don't establish boundaries in an original survey, then there's no such thing as retracement or following the footsteps. Thankfully, I'm in a jurisdiction that still believes in the sanctity of boundaries established by the surveying process.
It's interesting that you wouldn't allow acquiescence in an original boundary, but rather require some other action. I kinda like that theory as it will add a wall building arm to my business. I can tell my clients that the deed and survey are meaningless unless accompanied by occupation to the full extent of whatever they think might be shown by deed and survey. And might as well go a little extra just to make sure, because if the neighbor hasn't occupied something it's not theirs anyway.
A survey which disagrees with the original will simply document a disagreement between surveyors, the second of which is providing the first instance of an official position contrary to one which has stood unchallenged for many years. It will only resolve the problem if the parties agree with it, and if so then they need to document it. But title is going to be questioned at this point in most jurisdictions. The line has been changed from its original location.
Seems to me you learned to apply something absolutely 25 years ago and because it was proved wrong in certain situations you now propose to apply something else absolutely. I was taught there is a place for boundary agreements and other places where they are not appropriate, and I haven't had to change my mind yet.
And I'm not sticking up for anyone in particular either, I'm sure all on the board are capable. I'm merely pointing out how differing situations call for differing solutions, and additional evidence can change the picture in a hurry (as noticed in the additional information given in this thread).
But I enjoy your posts JB, always a pleasure.
Duane Frymire, post: 355966, member: 110 wrote: If surveyors don't establish boundaries in an original survey, then there's no such thing as retracement or following the footsteps. Thankfully, I'm in a jurisdiction that still believes in the sanctity of boundaries established by the surveying process.
It's interesting that you wouldn't allow acquiescence in an original boundary, but rather require some other action. I kinda like that theory as it will add a wall building arm to my business. I can tell my clients that the deed and survey are meaningless unless accompanied by occupation to the full extent of whatever they think might be shown by deed and survey. And might as well go a little extra just to make sure, because if the neighbor hasn't occupied something it's not theirs anyway.
A survey which disagrees with the original will simply document a disagreement between surveyors, the second of which is providing the first instance of an official position contrary to one which has stood unchallenged for many years. It will only resolve the problem if the parties agree with it, and if so then they need to document it. But title is going to be questioned at this point in most jurisdictions. The line has been changed from its original location.
Seems to me you learned to apply something absolutely 25 years ago and because it was proved wrong in certain situations you now propose to apply something else absolutely. I was taught there is a place for boundary agreements and other places where they are not appropriate, and I haven't had to change my mind yet.
And I'm not sticking up for anyone in particular either, I'm sure all on the board are capable. I'm merely pointing out how differing situations call for differing solutions, and additional evidence can change the picture in a hurry (as noticed in the additional information given in this thread).
But I enjoy your posts JB, always a pleasure.
I'm attempting to develop a rigorous approach to applying California boundary law which isn't always easy when we have variations such as some Courts say a mistake can be corrected and others say the mistake can't be corrected after a period of repose. Most of the problem is the fact scenarios vary so much and any case we have came out of whatever particular dispute the parties had so we don't necessarily get a comprehensive, consistent, unified body of law. We have 6 Appellate Districts so there is some variation in how they see things. And most of the Appellate level cases don't publish which some commentators have called a pocket veto; the Supreme Court doesn't want to deal with the issue right now but they can limit the damage to a single case.
One thing is clear, the Courts act on what the property owners have done and relied upon; what the Surveyors did is fairly irrelevant unless it was put into use by the owners. I found an older case where the block is 8' short, so do you measure from the east or from the west? Because of the representation made by the defendant about a stake which fit measuring from the west the Court ruled for the plaintiff (measure from the west). The old surveys reveal the shortage but the Tract Map the defendant and plaintiff own lots on just blithely ignores the true distance laying out 50' lots.
The Appellate Courts review a trial court's selection of which of two conflicting surveys is correct as a finding of fact so they usually don't disturb the Judgment. They also review a finding of an whether a finding of an established boundary is a correct finding of fact and law as a finding of fact. In other words, if the Trial Court says the law is XYZ (as long as they state that correctly which is usually well settled) and the facts are ABC therefore the answer is yes then the Appellate Court reviews that as a finding of fact applying the substantial evidence rule wherein they usually affirm unless they can find that there is no evidence of at least one of the elements of the Doctrine being pleaded.
Duane Frymire, post: 355966, member: 110 wrote: If surveyors don't establish boundaries in an original survey, then there's no such thing as retracement or following the footsteps. Thankfully, I'm in a jurisdiction that still believes in the sanctity of boundaries established by the surveying process.
Sorry to break the news, Duane. Surveyors don't establish boundaries. That includes original surveys too. In order to understand the concept, one must step back and wonder, "Why do [original] monuments control?" (Or any monuments for that matter?) They control because 1) they are intended by the landowner to mark their boundary, and 2) they are relied upon by the landowner to mark their boundary. We surveyors like it when the monuments are set prior to the conveyance and called for in the conveyance document. What way we can claim that everyone also has the benefit of constructive notice to bind them to the monuments. Unfortunately, we tend to think it was the surveyor's actions which were controlling. In reality, it is the landowners' actions which establish the boundary. The surveyor has simply provided a professional service by setting points on the ground to physically mark the landowner's intent. Those marks mean nothing to anyone UNTIL the surveyor leaves and the landowners reliance upon them to represent their boundaries. Their reliance typically result in the erection of physical improvements along the boundary.
It's interesting that you wouldn't allow acquiescence in an original boundary, but rather require some other action. I kinda like that theory as it will add a wall building arm to my business. I can tell my clients that the deed and survey are meaningless unless accompanied by occupation to the full extent of whatever they think might be shown by deed and survey. And might as well go a little extra just to make sure, because if the neighbor hasn't occupied something it's not theirs anyway.
We might have a different definition of "original boundary" here. It seems from your earlier post (if I'm reading it correctly) that you seem to think that the GLO 1/16th line is an "original boundary." (I don't mean to put words in your mouth) This is a very common misunderstanding. In this case, the 1/16th line was never run by the GLO and, in fact, there was no boundary line created along the 1/16th line by government patent. If no boundary was created by them and no boundary was surveyed by them, it's pretty difficult to argue that the boundary was somehow "established" by them or by some instructions contained in some federal manual.
In this case, the boundary was created by a private conveyance of the south 30 acres. Just because the grantor (or whatever "professional" that actually prepared the description) chose to use the words N2N2 to describe the remainder, doesn't establish the automatically create a new boundary or establish the location of the boundary which has never before been run out on the ground.
I would never condone a landowner to take possession of land they know is not theirs. The law frowns upon the intentional theft of property. I also would never imply that one must take occupation in order to defend a claim of ownership. However I would point out that "perfect title" is the unity of three separate concepts: 1) the right of property, 2) the right of possession, and 3) actual possession. Until you have all three, an owner isn't fully vested. Having a deed gives you the right of property and presumably the right of possession. All three elements are required. A landowner taking possession beyond what they know to be theirs fails two out of the three requirements.
A survey which disagrees with the original will simply document a disagreement between surveyors, the second of which is providing the first instance of an official position contrary to one which has stood unchallenged for many years. It will only resolve the problem if the parties agree with it, and if so then they need to document it. But title is going to be questioned at this point in most jurisdictions. The line has been changed from its original location.
I agree that differences between two surveyors' opinions is too often interpreted as a "title" problem. That's because both surveyors have typically played the cut-and-run solution to boundary problems and left it to the title company and the attorney to come up with a potential solution. When you're a title man, every problem must be a title problem requiring a title solution. Yet, here we are with a surveying problem and no surveyors at the table (or only one in this case).
Seems to me you learned to apply something absolutely 25 years ago and because it was proved wrong in certain situations you now propose to apply something else absolutely. I was taught there is a place for boundary agreements and other places where they are not appropriate, and I haven't had to change my mind yet.
That's a bit of a cheap shot, Duane. I've been intensely studying (and teaching) boundary law for over 25 years now. I didn't study it once 25 years ago. I continue to study it to this day. I also continue to allow my thought processes and my methods to align with the principles that I have learned along the way. I've not been satisfied with every jot and tittle laid down in the surveying textbooks because I find too much contradiction between them and the rules laid down by the courts. One of the major changes in my thought process occurred early on in my quest. That was an understanding that the rules of law are designed to bring resolution to "problems" and that surveyors are expected to apply those rules for the purpose they were intended. Resolving problems.
Yes. There are places for boundary agreements, places for boundary adjustments, and places for corrective deeds, and places for affidavits, and places for amending plats, and places for surveys, and places for quitclaim deeds, and places for a variety of other solutions to the problems we discover (including mediation, arbitration and litigation). There isn't always just one solution available to any given problem. There are certain solutions which do not work in a given situation as well. Some solutions make matters worse with unintended consequences.
And I'm not sticking up for anyone in particular either, I'm sure all on the board are capable. I'm merely pointing out how differing situations call for differing solutions, and additional evidence can change the picture in a hurry (as noticed in the additional information given in this thread).
But I enjoy your posts JB, always a pleasure.
Always a pleasure, Duane.
JBS
Dave Karoly, post: 355968, member: 94 wrote: I'm attempting to develop a rigorous approach to applying California boundary law which isn't always easy when we have variations such as some Courts say a mistake can be corrected and others say the mistake can't be corrected after a period of repose. Most of the problem is the fact scenarios vary so much and any case we have came out of whatever particular dispute the parties had so we don't necessarily get a comprehensive, consistent, unified body of law. We have 6 Appellate Districts so there is some variation in how they see things. And most of the Appellate level cases don't publish which some commentators have called a pocket veto; the Supreme Court doesn't want to deal with the issue right now but they can limit the damage to a single case.
One thing is clear, the Courts act on what the property owners have done and relied upon; what the Surveyors did is fairly irrelevant unless it was put into use by the owners. I found an older case where the block is 8' short, so do you measure from the east or from the west? Because of the representation made by the defendant about a stake which fit measuring from the west the Court ruled for the plaintiff (measure from the west). The old surveys reveal the shortage but the Tract Map the defendant and plaintiff own lots on just blithely ignores the true distance laying out 50' lots.
The Appellate Courts review a trial court's selection of which of two conflicting surveys is correct as a finding of fact so they usually don't disturb the Judgment. They also review a finding of an whether a finding of an established boundary is a correct finding of fact and law as a finding of fact. In other words, if the Trial Court says the law is XYZ (as long as they state that correctly which is usually well settled) and the facts are ABC therefore the answer is yes then the Appellate Court reviews that as a finding of fact applying the substantial evidence rule wherein they usually affirm unless they can find that there is no evidence of at least one of the elements of the Doctrine being pleaded.
What the surveyor did is never irrelevant. But in order to have a justiciable dispute the court generally needs at least two differing opinions from surveyors. And typically it's not going to court until some physical action has been taken by a landowner asserting occupation that disagrees with one or the other survey. If a line is laid out and a subsequent surveyor finds it and holds it, no occupation across it, no differing opinion from adjoining surveys, then it's not going to court. The work of these surveyors is not irrelevant, and it will hold up against subsequent occupations unless there is an adverse possession that ripens, or the work is lost and improvements arise and ripen into an agreed boundary. On the other hand, laying out a deed "as it should have been" rather than "following the footsteps" is generally incorrect and usually required to be done within a reasonable time frame.
Again, different strokes. Where is the line when no affirmative action has been taken to the disputed area by either party? Is it the surveyors job to keep moving it around because each knows their interpretation is better than the last one? Especially given the unpredictable nature of lower court decisions and availability of evidence changing over time.
I think a rigorous approach has to include a touch of humility. Is there a defensible interpretation of the evidence that incorporates agreement with previous survey work? Is it reasonable under the circumstances (weighing passage of time, equitable ramifications, etc.)? If not, can your current work disprove the previous work by clear and convincing evidence, or is this going to be a toss up if it goes to court? I think the best approach is to try to prove the previous surveyor correct (retracement; original survey has no error) after their work has not been challenged for a reasonable amount of time, regardless of whether anyone made improvements to or along the line they depicted.
JBStahl, post: 355982, member: 427 wrote: Sorry to break the news, Duane. Surveyors don't establish boundaries. That includes original surveys too. In order to understand the concept, one must step back and wonder, "Why do [original] monuments control?" (Or any monuments for that matter?) They control because 1) they are intended by the landowner to mark their boundary, and 2) they are relied upon by the landowner to mark their boundary. We surveyors like it when the monuments are set prior to the conveyance and called for in the conveyance document. What way we can claim that everyone also has the benefit of constructive notice to bind them to the monuments. Unfortunately, we tend to think it was the surveyor's actions which were controlling. In reality, it is the landowners' actions which establish the boundary. The surveyor has simply provided a professional service by setting points on the ground to physically mark the landowner's intent. Those marks mean nothing to anyone UNTIL the surveyor leaves and the landowners reliance upon them to represent their boundaries. Their reliance typically result in the erection of physical improvements along the boundary.
We might have a different definition of "original boundary" here. It seems from your earlier post (if I'm reading it correctly) that you seem to think that the GLO 1/16th line is an "original boundary." (I don't mean to put words in your mouth) This is a very common misunderstanding. In this case, the 1/16th line was never run by the GLO and, in fact, there was no boundary line created along the 1/16th line by government patent. If no boundary was created by them and no boundary was surveyed by them, it's pretty difficult to argue that the boundary was somehow "established" by them or by some instructions contained in some federal manual.
In this case, the boundary was created by a private conveyance of the south 30 acres. Just because the grantor (or whatever "professional" that actually prepared the description) chose to use the words N2N2 to describe the remainder, doesn't establish the automatically create a new boundary or establish the location of the boundary which has never before been run out on the ground.
I would never condone a landowner to take possession of land they know is not theirs. The law frowns upon the intentional theft of property. I also would never imply that one must take occupation in order to defend a claim of ownership. However I would point out that "perfect title" is the unity of three separate concepts: 1) the right of property, 2) the right of possession, and 3) actual possession. Until you have all three, an owner isn't fully vested. Having a deed gives you the right of property and presumably the right of possession. All three elements are required. A landowner taking possession beyond what they know to be theirs fails two out of the three requirements.
I agree that differences between two surveyors' opinions is too often interpreted as a "title" problem. That's because both surveyors have typically played the cut-and-run solution to boundary problems and left it to the title company and the attorney to come up with a potential solution. When you're a title man, every problem must be a title problem requiring a title solution. Yet, here we are with a surveying problem and no surveyors at the table (or only one in this case).
That's a bit of a cheap shot, Duane. I've been intensely studying (and teaching) boundary law for over 25 years now. I didn't study it once 25 years ago. I continue to study it to this day. I also continue to allow my thought processes and my methods to align with the principles that I have learned along the way. I've not been satisfied with every jot and tittle laid down in the surveying textbooks because I find too much contradiction between them and the rules laid down by the courts. One of the major changes in my thought process occurred early on in my quest. That was an understanding that the rules of law are designed to bring resolution to "problems" and that surveyors are expected to apply those rules for the purpose they were intended. Resolving problems.
Yes. There are places for boundary agreements, places for boundary adjustments, and places for corrective deeds, and places for affidavits, and places for amending plats, and places for surveys, and places for quitclaim deeds, and places for a variety of other solutions to the problems we discover (including mediation, arbitration and litigation). There isn't always just one solution available to any given problem. There are certain solutions which do not work in a given situation as well. Some solutions make matters worse with unintended consequences.
Always a pleasure, Duane.
JBS
JB, no cheap shot intended. It is just clear that you propose boundary agreement in almost all situations. And that may be the reality where you practice due to historical development and terrain.
We agree on why monuments control with one huge caveat. I believe the cases and statutes are consistent for hundreds of years with the proposition that it is a legal presumption that parties take title in reliance on the original survey monuments. So, while you would ask for some additional evidence to prove it, I would ask for some affirmative evidence to disprove this legal presumption. I think you must be misinterpreting cases to come to your conclusion, and it makes a big difference to any further analysis.
My understanding of the facts in this instance are the s30 was sold, then surveyed, and no objections to date. Then the n1/2n1/2 was sold, then surveyed, and no objections. Both of these qualify as original surveys in relation to any lines not previously existing. As I think you agree, neither line in question was previously existing.
