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
This has proved more complicated than I first thought. I am (now) sold on the fact that the second transfer of 10 acres is to the senior line of the first 30 acres of the parent 40-acre parcel (even thought that 10 acres is an aliquot transfer.)
If you don't think that, and picture a gap still belonging to the original rancher....then you have a real quandary. A quitclaim from the State to the second owner is a perfectly legitimate document....if a State representative is even willing to sign one; but that doesn't fix the problem of the original rancher that you think still might have interest in the land. Same with a "boundary line agreement" in that two adjacent owners can sign an agreement as to where the line is between them, but if there is a third party that owns the land in-between, a boundary line agreement can't take that land away from the "legal" owner unless that rancher could be somehow part of the BLA (or quitclaim for that matter).
If you believe that there is one property line between the two grantees, it absolutely must be to the senior of the two lines I would say.
You got me to thinking, there, JBS.
Tom, I would agree that the 75/25 split could be the correct line but the fact that the south owner only took possession of 30 acres makes it not so in my opinion. If the original surveyor had chosen the other location, I would agree with it too.
vern, post: 355996, member: 3436 wrote: Tom, I would agree that the 75/25 split could be the correct line but the fact that the south owner only took possession of 30 acres makes it not so in my opinion. If the original surveyor had chosen the other location, I would agree with it too.
Vern,
That was my logic at first. However, I have changed my opinion through the course of this thread. I have to go with the intent of both deeds to have been that there was a 40-acre parcel to start with. If you first transfer 30 acres, and later transfer the "remaining" å?, it has to be at the adjoining line. The fact that other surveyors, and perhaps lawyers and judges might disagree certainly can throw this issue into a problem. That fact also has me thinking it would be good to try to resolve this issue; but I doubt all the parties who don't see an issue would worry about the time and trouble it would take to resolve it. In which case, I think it would be good to show the boundary in what you consider the correct location and be prepared to defend your action.
Duane Frymire, post: 355991, member: 110 wrote: 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.
The reason it appears that I support agreements most of the time is because the boundary establishment doctrines are founded on contractual agreements between the adjoining owners. When there is ambiguity in the boundary location, the best resolution is found in writing a new agreement. You might notice that in this situation I do NOT recommend a boundary agreement. There is no reason for an agreement here. The only agreement that should be happening here is the surveyors getting together to resolve the conflicting evidence.
Perhaps we're understanding the facts of the case differently and being led to differing conclusions. It is my understanding that the south 30 acres was conveyed first, surveyed first and occupied first. The remainder N2N2 came second, was surveyed 2nd and never occupied. I wouldn't equate those two surveys as being on equal footing. Nor would I give equal footing to the two conveyances. I would take issue with the second surveyor's interpretation of the document (failure to consider extrinsic evidence of the first conveyance which created the boundary under state rule, plus survey and monuments to retrace). The second set of survey monuments should have never happened.
It appears that you are considering the two "original" surveys as being on equal footing, both being represented and relied upon by the landowners. If that were the case, then a third parcel might exist and a title problem/solution might be the appropriate solution. I don't, however, agree with that scenario as the conveyances clearly indicate a sequence of conveyances which are, by definition, NOT on equal footing. The surveys, being executed at separate times also indicates unequal footing. I view the second survey as a mistake which, without significant evidence of actual reliance by the owners, remains a mistake. The parties haven't "acquiesced" in the second survey; they've "acquiesced" in the fact that the second survey is a mistake. If that were not true, there would be evidence of their acceptance. None is given.
JBS
JBStahl, post: 356011, member: 427 wrote: The reason it appears that I support agreements most of the time is because the boundary establishment doctrines are founded on contractual agreements between the adjoining owners. When there is ambiguity in the boundary location, the best resolution is found in writing a new agreement. You might notice that in this situation I do NOT recommend a boundary agreement. There is no reason for an agreement here. The only agreement that should be happening here is the surveyors getting together to resolve the conflicting evidence.
Perhaps we're understanding the facts of the case differently and being led to differing conclusions. It is my understanding that the south 30 acres was conveyed first, surveyed first and occupied first. The remainder N2N2 came second, was surveyed 2nd and never occupied. I wouldn't equate those two surveys as being on equal footing. Nor would I give equal footing to the two conveyances. I would take issue with the second surveyor's interpretation of the document (failure to consider extrinsic evidence of the first conveyance which created the boundary under state rule, plus survey and monuments to retrace). The second set of survey monuments should have never happened.
It appears that you are considering the two "original" surveys as being on equal footing, both being represented and relied upon by the landowners. If that were the case, then a third parcel might exist and a title problem/solution might be the appropriate solution. I don't, however, agree with that scenario as the conveyances clearly indicate a sequence of conveyances which are, by definition, NOT on equal footing. The surveys, being executed at separate times also indicates unequal footing. I view the second survey as a mistake which, without significant evidence of actual reliance by the owners, remains a mistake. The parties haven't "acquiesced" in the second survey; they've "acquiesced" in the fact that the second survey is a mistake. If that were not true, there would be evidence of their acceptance. None is given.
JBS
The surveys don't need equal footing, there is no conflict between them.
I think you need actual evidence of non-reliance, non-acceptance of the "mistaken" second survey in order to overturn the presumption it has been. On the contrary, the one in possession based on the "mistaken" survey seems to have been given knowledge of a possible mistake and has failed to act on it.
Duane Frymire, post: 355983, member: 110 wrote: 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.
Yes, I overstated that.
An interesting article is BOUNDARY LITIGATION IN CALIFORNIA, 11 Stan. L. Rev. 720 (1959). The author uses a shorthand of "owner" for the owner to the record line and "claimant" for the owner to the established line. One of the common problems is the owner has a Survey which conflicts with the occupation line and the claimant stipulates to the Survey or at least doesn't challenge it by getting their own expert. Sometimes both so-called experts agree to the same line (the line the owner likes). Then the claimant is left to claim Adverse Possession (difficult in California due to the tax payment issue; the Courts presume taxes were payed to the record line-for lack of a better term-and haven't been open to other possibilities), an Agreed Boundary which is difficult in California due to various reasons, or some type of easement which can't be exclusive or viewed as an end-run around the tax payment requirement of Adverse Payment. If the Court has actual expert guidance then often what was attempted to be proven as an agreed boundary can be proven to be an original boundary.
Duane Frymire, post: 355983, member: 110 wrote: I think a rigorous approach has to include a touch of humility.
No kidding, I thought I knew it all, then I thought I knew it all after that. I make a conscious effort to not let confirmation bias or rigidity creep into my thinking. What does the case law actually say and when is what used. It's not an easy thing to do. My boss and I are working on a tough problem that involves an original subdivision of a section then 80+ years later (1979) another subdivision of section which has caused extreme havoc in one part of the section. So we are talking about various possibilities and finding more stuff in the files and one of our co-workers is saying he had no idea we are so into legal and evidence issues. It turns out he graduated from Law School but hasn't taken the Bar so can't say he's an Attorney. So he's telling me it's all about the evidence. If you can't get your evidence in (due to sustained objections) then you've go no case. He's saying it's critical to learn about the rules of evidence and let me loan you some books, The Evidence Wheel, etc. He said Criminal Litigators have to be total experts in evidence because if the defense can shave just enough evidence off the prosecution's case to get below a reasonable doubt then it's a not guilty.
Duane Frymire said: Ô
I think a rigorous approach has to include a touch of humility.-
[sarcasm]oh sure- calling on us to use our long suit......[/sarcasm]
JBStahl, post: 355982, member: 427 wrote: 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.
The Plat did not create the subdivisions of the Sections (fn 1). I may be wrong about this but I think of it like this: say the Government patents the Southeast quarter of the Southeast quarter of a Section. The southeast corner is the only corner established (the Section corner). The section lines are established but the 1/16th lines are only created legally but not established. When the patentee acts to run the missing two boundaries and missing three corners then the lines and corners become established as long as the adjoiners don't object within a reasonable period of time. What we see is the big fish in the Section setting the corners then the small fish accepting those corners because it's cheaper especially in the 19th century. To get the surveyor out there was a big expense, horse and buggy, camping out, etc. Why not use the corners set and paid for by the big fish? It's really aggravating to see surveyors 100 years later ignore all the history and reality and just have some misguided idea they have to "correct" the corners to their "true" locations per Chapter 3 of the manual ignoring the other chapters.
fn1: Wood v. Mandrilla, 167 Cal. 607, 614 (1914) "It is to be observed, too, that occasion for a division of a quarter section into east and west halves could only arise, if it arose at all, after the making of the plat and the lands opened to entry, and then only in the event that there were two or more entries made of portions of the quarter section ÛÏwhich may thereafter be sold.Û As to this particular quarter section, no such occasion arose, because the entry of the land by the predecessor in title of plaintiff in the land-office was of the whole of this fractional quarter section and it was patented to him by the government as a whole."
Dave Karoly, post: 356023, member: 94 wrote: Yes, I overstated that.
An interesting article is BOUNDARY LITIGATION IN CALIFORNIA, 11 Stan. L. Rev. 720 (1959). The author uses a shorthand of "owner" for the owner to the record line and "claimant" for the owner to the established line. One of the common problems is the owner has a Survey which conflicts with the occupation line and the claimant stipulates to the Survey or at least doesn't challenge it by getting their own expert. Sometimes both so-called experts agree to the same line (the line the owner likes). Then the claimant is left to claim Adverse Possession (difficult in California due to the tax payment issue; the Courts presume taxes were payed to the record line-for lack of a better term-and haven't been open to other possibilities), an Agreed Boundary which is difficult in California due to various reasons, or some type of easement which can't be exclusive or viewed as an end-run around the tax payment requirement of Adverse Payment. If the Court has actual expert guidance then often what was attempted to be proven as an agreed boundary can be proven to be an original boundary.
No kidding, I thought I knew it all, then I thought I knew it all after that. I make a conscious effort to not let confirmation bias or rigidity creep into my thinking. What does the case law actually say and when is what used. It's not an easy thing to do. My boss and I are working on a tough problem that involves an original subdivision of a section then 80+ years later (1979) another subdivision of section which has caused extreme havoc in one part of the section. So we are talking about various possibilities and finding more stuff in the files and one of our co-workers is saying he had no idea we are so into legal and evidence issues. It turns out he graduated from Law School but hasn't taken the Bar so can't say he's an Attorney. So he's telling me it's all about the evidence. If you can't get your evidence in (due to sustained objections) then you've go no case. He's saying it's critical to learn about the rules of evidence and let me loan you some books, The Evidence Wheel, etc. He said Criminal Litigators have to be total experts in evidence because if the defense can shave just enough evidence off the prosecution's case to get below a reasonable doubt then it's a not guilty.
Hey, if we always agreed it would be a sign we're not needed. Still, we should try to agree with what others have done if possible.
Whatever you do, don't borrow the evidence books. A good litigator attorney will have a good attorney specialist in evidence sitting at the table with them. That's why those rich folks on trial have teams of attorneys and usually get off:) The only thing we need to know about the rules of evidence is all evidence is relevant and material unless a specific rule keeps it out. If some of our evidence is kept out, it's the attorneys fault!
Duane Frymire, post: 356033, member: 110 wrote: Hey, if we always agreed it would be a sign we're not needed. Still, we should try to agree with what others have done if possible.
Whatever you do, don't borrow the evidence books. A good litigator attorney will have a good attorney specialist in evidence sitting at the table with them. That's why those rich folks on trial have teams of attorneys and usually get off:) The only thing we need to know about the rules of evidence is all evidence is relevant and material unless a specific rule keeps it out. If some of our evidence is kept out, it's the attorneys fault!
I've been an expert three times. The first time I wrote a Declaration under Penalty of Perjury to which I attached my report on the Boundary. The other side's expert didn't sign anything under penalty of perjury so the wily Attorney on our side was able to keep his survey and opinions out and he obtained Summary Judgment so I didn't have to testify.
The second time was a neighbor lawsuit over a bunch of issues and the boundary was one small piece of the larger dispute. I did the survey for my client who is an anesthesiologist (M.D.). He said his experience was horrible, he would never sue anyone again and he hates Attorneys now whereas before he thought they were sort of a profession. I had my deposition taken for a couple of hours as the opposing expert; he gave up after a couple of hours. He had some questions fed to him by a Consultant L.S. (I thought it is unethical to review another Surveyor's work without informing him but I guess not). I never heard another word about it.
The third time was an easement dispute several years ago. I put together the chain of title showing the ingress-egress easement was attached to the first deed in the chain and never mentioned again. I said the easement is appurtenant and runs with the land so our client has an easement, of course. I testified on the stand; first to my exhibits showing the physical relationship of the boundaries and road, and the defendant's gate (my client was the plaintiff). No problem with that. Our Attorney wanted me to opine whether his client had an easement, the other Attorney objected, the Judge sustained it (bench trial) which annoyed our Attorney greatly, finally after bickering the Judge just started asking me questions about each document in the chain of title, leading me down to the path of yes there is an easement. I had a file all organized with all the documents in order with tabs. The Judge finally asked me if he could have the clerk copy my file, I said sure go ahead. I knew he understood the case (probably had RE experience); he just needed the evidence. He didn't need me to tell him that the law is the client has an easement besides that's his prerogative or something like that. At lunch our Attorney was greatly annoyed about it; I'm thinking, chill out dude, the Judge gets it, I gave him all the evidence he needs. He was saying it's a bench trial, usually the Judges don't play it so close, they let the expert say whatever, they can always disagree, it's not like there's a Jury that will get prejudiced. I think the Attorney was just stressed out and overworked and they have to be all polite and respectful so the frustration comes out outside the Courtroom. It was a stupid case anyway, why do we have to litigate such an obvious thing? But people are crazy. The defendant was a foreign national with limited English skills and I think his Attorney did him a disservice by not talking him out of the case but maybe he did and the client insisted on going forward. The client on our side was a real nice guy and just wanted to get along, he would've forgiven all but he had to sue so he could access his property (a large vacant parcel).
On the other hand, the defendants Attorney was a real putz but then all Civil Litigators seem like putzes to me (present company excepted, Attorneys that come from real life experience are better). It's like they were the nerd that spent their high school career getting stuffed into thrash cans by football players then when they become Attorneys they can take verbal revenge on the world, I'm serious, I've encountered more than one arrogant Attorney who just have that, it's hard to explain, that kind of annoying condescending style. There are good Attorneys that are really personable, I think those are the ones that are most effective.
