Agreed Boundary Doctrine in California

So I am trying to understand this...by subjective uncertainty we are talking about uncertainty in the property owners own minds as to where the property line is, correct? Where objective uncertainty has to do with a surveyor's ability to accurately lay the legal description on the ground, is that right? If so, is Martin v. Van Bergen saying that objective uncertainty is required for the agreed boundary doctrine to be applicable? It sounds like Martin was also missing the element of an agreement so this is confusing to me. If the legal description can be surveyed accurately, can the agreed boundary doctrine apply? Do we have a clear answer on this?

olin edmundson, post: 355806, member: 10885 wrote: So I am trying to understand this...by subjective uncertainty we are talking about uncertainty in the property owners own minds as to where the property line is, correct? Where objective uncertainty has to do with a surveyor's ability to accurately lay the legal description on the ground, is that right? If so, is Martin v. Van Bergen saying that objective uncertainty is required for the agreed boundary doctrine to be applicable? It sounds like Martin was also missing the element of an agreement so this is confusing to me. If the legal description can be surveyed accurately, can the agreed boundary doctrine apply? Do we have a clear answer on this?

Subjective uncertainty means the property owners don't know where the boundary is located although it could be disclosed by survey.
Objective uncertainty means different surveyors could reasonably locate the boundary in materially different locations due to various reasons such as poor or ambiguous Deed descriptions. Also long reliance on an old Survey is objective uncertainty.

from Martin (near the bottom of discussion Section I on page 90):
"Second, if Kirkegaard's conclusion that mutual mistake is sufficient to show ‰ÛÏuncertainty‰Û was ever good law, it is no longer. Bryant requires ‰ÛÏdeference to the sanctity of true and accurate legal descriptions.‰Û (Bryant v. Blevins, supra, 9 Cal.4th at p. 55.) Thus, a boundary is not uncertain if it can be ascertained by an accurate survey."

I think the bold sentence is the reason Martin published (a novel statement of California law). I personally think the Court is wrong here and so far one unpublished Appellate Opinion has defied Martin on this. Out of dozens of similar cases left unpublished, why else would they publish this one? But the Courts don't publish their reasons for publish/non-publish so it's some kind of mysterious alchemy. I know the Rules of Court give the possible reasons but they don't tell us why a particular case published or not.

Since Bryant only a few cases citing it have published. It's really doubly annoying when they partially publish a case such as Belle Terra which means the case comes with blank sections. Sections A through G in Belle Terra are particularly useful.

There has been a split of authority since Clapp v. Churchill, 164 Cal 741 (1913). Prior to Clapp the agreement was considered to be fictional, the Doctrine operated in prescription. Clapp started a line of cases which operate the Doctrine in contract although it's kind of weird to require an acquiescence period when there is a contract.

The other theory is it operates in prescription, long acquiescence shows there must've been an agreement lost to time, therefore the agreement could be inferred from the evidence.

It appears that Bryant v. Blevins, 9 Cal. 4th 47 (1994), created a dual system. If the boundary is objectively uncertain then the uncertainty and agreement could be inferred as before. If the claimed boundary is only subjectively uncertain (e.g. a fence vs. a surveyed boundary) then direct evidence of uncertainty and the agreement on the part of both owners is required. The testimonial evidence of one owner from the time of the agreement is sufficient if the Court believes them and their testimony is correctly coached but Attorneys wouldn't do that, would they? Apparently only a few Attorneys have figured this out because most of these cases fail the test.

In effect, a subjective uncertainty agreed boundary will eventually time out if the matter isn't litigated before the original participants disappear or die. This is contrary to law but a practical reality given how the California Supreme Court has set this up.

Dave Karoly, post: 355814, member: 94 wrote: Objective uncertainty means different surveyors could reasonably locate the boundary in materially different locations due to various reasons such as poor or ambiguous Deed descriptions. Also long reliance on an old Survey is objective uncertainty.

Thanks Dave, interesting stuff. So when you say that long reliance on an old survey creates objective uncertainty, I understand this to mean relying on an old survey that has no known direct connection to the original survey, is that right? A survey that may be accepted but cannot be proved to be a perpetuation of the original.

olin edmundson, post: 355830, member: 10885 wrote: Thanks Dave, interesting stuff. So when you say that long reliance on an old survey creates objective uncertainty, I understand this to mean relying on an old survey that has no known direct connection to the original survey, is that right? A survey that may be accepted but cannot be proved to be a perpetuation of the original.

I think so, generally in boundary cases the Court looks to what the owners have done, they aren't too concerned about whether the Surveyors did it correctly or not, especially in the case of old, settled boundaries. If no one knew about or used the old survey then it will not have much effect. In the case of recent surveys, the trial court will decide which of two competing surveys is more correct and the Appellate Court will treat that as a finding of fact meaning they usually won't overrule the trial court on a fact issue. Usually the fact statement in Appellate Opinions are fairly void of details on what the Surveyors did.

Boulder Skies Limited Partnership v. Prazma, Not Reported in Cal.Rptr.3d (2014) involves a surveying blunder in 1913 which was recognized in 1921. The 1921 survey yielded to the 1913 boundary and the owners used that boundary in Deed conveyances and subdivisions ever since. Recently a surveyor refused to accept the old solution leading to the litigation in which the 1913 boundary prevailed; the Court ruled it is the boundary under the agreed boundary doctrine.

Good practice is to attempt to match the title history to the survey history. For example, an 1894 survey sets a 1/16th corner. An 1897 Deed begins at the 1/16th corner and runs a certain distance, there happens to be an ancient fence within a few feet of that distance; I don't think that is a coincidence.

Another example I encountered was a 1906 Deed that resulted from a survey ties to a quarter section corner. The quarter section corner was set in 1965 by single proportion so the 1906 survey couldn't have used it. I have information and data where a post accepted by the two owners was located in 1965 (it disappeared sometime since then). Same with a post 1300 feet away which I know Knute Nelson pulled out (from his field notes) but he tied it at least. Reconstructing where the two posts were from Knute's monuments they fit very close to the 1906 data. That is better evidence of where the 1906 lines were located than computing them from recent reconstructions of the Sections using single and double proportioning?

Dave Karoly, post: 355372, member: 94 wrote: The latest pronouncement by our Supreme Court is Bryant v. Blevins, 9 Cal.4th 47 (1994). Bryant did not outlaw subjective uncertainty in California meaning the property owners are not required to commission a Survey. It did require direct evidence of uncertainty and agreement by both owners in the case of subjective uncertainty. Martin v. Van Bergen, 209 Cal.App.4th 84 (2nd District 2012) interpreted the Bryant opinion as requiring objective uncertainty for the Doctrine to apply.

So we have five Cases citing Bryant and ruling for an agreed boundary in the case of subjective uncertainty (all unpublished) before Martin:
Garrison v. Hodge (4th District 2003) San Diego County
VanSandt v. Trivedi (4th District 2007) San Diego County
Kempton v. Cooper (2nd District 2009) Los Angeles County
Kliban v. Dixon (1st District 2011) Marin County
Best v. Breaker (4th District 2012) San Diego County

One subjective uncertainty case after Martin which appears to disagree with Martin but doesn't mention it:
Soroush-Azar v. Palmar (4th District 2013) San Diego County

One case appears to be an objective uncertainty case so it's not at odds with Martin:
Boulder Skies v. Prazma (4th District 2014) San Diego County

The Utah courts hashed this out - objective/subjective uncertainty - in Staker v Ainsworth in 1990. The case is all about it. There is also a big dissenting opinion. So Read All About It here:

Staker v Ainsworth - Utah 1990

I have a PDF file full of Agreed Boundary Doctrine cases citing Bryant. Figuring out which are objective and which are subjective is often difficult because the information on the surveys is lacking in details. I have researched a few online in the past but that's time consuming and not always possible.

I just found one interesting case but it's a boundary by A.P. case in San Luis Obispo County which is Pacific/Montana, LTD. v. Pierson, unreported (2nd District 2008). Pacific/Montana's 85 acre ranch had a 40' strip excepted off the north side in the Deeds but had occupied the strip for decades. The owner to the north had no interest in the strip. The Assessor parcel map shows the strip as part of the 85 acre property (ignoring the strip). The strip was owned by property to the west (now Pierson) until 1943 when it was orphaned. The owner to the west granted out the property in 1943 but failed to include the strip (which would've been used to gain access to a public road on the east). The 1943 grantor's probate in 1969 revealed no property in SLO County. In 2004 the estate issued a correction Deed to Pierson including the strip. The court found Pacific/Montana paid the taxes and met the other requirements of Adverse Possession so they own the strip. Affirmed.