Selling illegally not allowed
If the plat calls to the senior line, then the platted line is
on the senior line. To me, that makes them the same line. The subdivision corners would be subject to that line in my opinion.
I'm/saying that because you sounded sarcastic and didn't agree with that concept, but maybe I misread that.
You keep saying this but if I find the lot line goes through my living room I can't see how this isn't a Title problem. Sure Title and boundary may be separate like a tire and rim but one isn't much use without the other. A 18" tire doesn't fit on a 16" rim.
> You keep saying this but if I find the lot line goes through my living room I can't see how this isn't a Title problem. Sure Title and boundary may be separate like a tire and rim but one isn't much use without the other. A 18" tire doesn't fit on a 16" rim.
It's not a difficult concept to understand at all. You have title (ownership) on one hand; you have the extent or limit of your title (the boundary) on another. Title law governs how the title is held, how it is transferred and how it is defended. Boundary law governs where the extent of the title is located and how the location is proven. The boundary is the furthest extent of two contiguous estates. Yes, you cannot have one without the other. But they are governed by two entirely different bodies of law.
If your neighbor is painting a line through the living room and telling you to keep your feet on your own side of the couch, you don't have a title problem; you have an encroachment problem (presuming, of course, that the boundary has been correctly located).
If the boundary is in the right place and your house is truly built onto your neighbor's property (a trespass), then there is no title problem. You know what you own, you know what your neighbor owns and you know where the boundary is located. This isn't a title problem. The problem is that your house is over the line. You can solve it by moving your house or moving the boundary (by purchasing title from your neighbor).
JBS
Selling illegally not allowed
Duane - I think we both agree on the laws, but maybe perceive things a little different. Using my example, if Farmer Brown sold his farm by the acre, and the buyer finds out later that a portion of that property was owned by someone else - If he goes to court I'm sure the court would rule that Farmer Brown owns the buyer some money, based on the per acre cost. Why would the court rule this if Farmer Brown had not sold something he didn't own?
Selling illegally not allowed
Well, I did directly address your point, and JB is talking about something different and misconstruing what I posted.
The point you are continuing to overlook is that the ambiguity did not exist to those involved in the transaction. Everything was certain to them. It was later found that a mistake had been made. But they were certain on execution of the contract that the monuments set per the subdivision map were the easterly boundary.
Therefore, it has nothing to do with applying rules of construction. The courts will not use rules of construction to resolve an ambiguity of location that did not exist at the time of the contract.
You can argue for a new rule if you want. I try to limit myself to following what hundreds of years of court decisions tell me to do. It's not so much that you're wrong, it is that you are disagreeing with how courts to this point have handled these situations. Who knows, maybe you can convince some judge on some day to agree with you.
Duane
I think that you did address my point. I apologize if I did not state such. I need to absorb what you have said. I need to read and think on it some, and did not understand it completely in one reading. (Just the way I am I think)
I also have not read the case that JB Stahl linked yet. I printed it out and need to look at it as well.
You and JB seem to know your case law very well and do not necessarily agree with each other all the time.
I'll study on this a bit. I can't see how this has nothing to do with the rules of construction, but I will try to understand.
Thanks for your posts, and I apologize if I offended. I'm just a bit slow sometimes.
Tom
Selling illegally not allowed
I would say you are not seeing the nuances. The case you linked does not "fly in the face" of anything, nor does it change the analysis of the question in this thread.
In the case you linked the map shows one of the section line monuments, and calls for the aliquot line clearly. It clearly shows the subdivision monuments being set on that line. This brings up the question of what the parties were relying on at the time of the contract, if and when it is discovered that there is a discrepancy. In addition the case does not attempt to determine where a further division within the subidivision might be located based on a lot and block description. The decision only addresses who has title to the land between the erroneously set subdivision monuments and the "called for" aliquot monuments and line. That's easy, but entirely different than this thread.
Selling illegally not allowed
With all due respect, Olson is one case in Montana.
Like Rivers is one case in Florida.
I guess we all have our favorites.
I doubt the California Courts would follow Olson. Most likely this would turn on which of two possible boundaries is physically established but you never know in this age of non-stare decisis and unpublished fiascos. Since the east boundary was surveyed and monumented and following Bryant, they should bend the section line since that would follow Ernie as instructed by Bryant (most seem to miss that in Bryant). The Bryant court said you can infer agreement where the line is based on a survey way back when as in Ernie. They expressly did not overturn that part of Ernie.
Duane
Tom,
No offense taken or intended. Very fine points on some of this stuff that leave room for disagreement. I like talking about them.
Read Bryant v. Blevins carefully.
If the monuments on the east line of Lot 3 were set more than 5 years ago they would most likely hold as against the owner on the other side of the Section line. He should have objected to those monuments long ago.
I know this is against dogma, particularly in SoCal but dogma has lost before. The California Courts will and have upheld old monuments particularly when they are shown on a map and are referenced in the Deeds by reference to the map. They have even upheld slander of title against owners who have tried to claim the overlap (in this case the owner on the east).
I agree with you and sure would hope that a question like this would not be on a test?
After all the back and forth on this thread, looks like there needs to be a lot more information to be learned about a real situation like this.
Keith
I don't believe it Dave, I think you're missing something in the decisions. There must be some distinguishing facts or evidence.
So nothing can be on a test? I don't get this idea that a test can't test anything because one can always insert evidence or testimony or facts that are not in the question?
Any surveyor that's been to court a few times knows that in court they will throw new facts and evidence at you. But you have to make a decision on what is available. No different than a test question.
I reserve my right to change my opinion in real life or testing if other evidence is produced.
The idea that it's just a textbook thing, or what if this and what if that, is a crutch to avoid having to make an informed decision.
If you are looking for a certain result that happens to agree with some larger idealistic theory you hold, then you are never going to see the differences in real life situations, let alone test questions that represent them.
Well OK, the case scenario posted was posted as if there is nothing else going on, just some rectangles out there on bare ground. So it is incorrect for me to opine as I did given the scenario as posted.
I made the mistake of filling in the likely facts in my mind. These things rarely happen in a vacuum. If Lot 3 was occupied as surveyed and the adjoining owner had actual notice of the occupation then our Case law supports the monumented east boundary of Lot 3.
It appears in the sketch that the east boundary of Lot 3 was monumented by running north out of the GLO corner on the south which could be construed as acting in good faith. People of ordinary intelligence don't normally expect a Section line to be 15 degrees off of cardinal. But it is true the sketch doesn't indicate anything else such as fence lines or other improvements.
> Read Bryant v. Blevins carefully.
>
> If the monuments on the east line of Lot 3 were set more than 5 years ago they would most likely hold as against the owner on the other side of the Section line. He should have objected to those monuments long ago.
>
> I know this is against dogma, particularly in SoCal but dogma has lost before. The California Courts will and have upheld old monuments particularly when they are shown on a map and are referenced in the Deeds by reference to the map. They have even upheld slander of title against owners who have tried to claim the overlap (in this case the owner on the east).
What a business plan;-)
Greetings Property Owner,
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DDSM
😉
Hey that is a good idea!
Sometimes I overshoot the mark (this is a tough crowd) but Surveyors seem to just love to blithely walk into a situation and set monuments against occupation and buildings which have been there for decades, sometimes over a 100 years.
I saw that in the Town of Mendocino. 2002 Surveyor (an Engineer, ugh) sets a lead and tag 2' into a building that actually has the construction year imprinted on its facade, 1865! Holy unclear on the concept Batman!
> If the monuments on the east line of Lot 3 were set more than 5 years ago they would most likely hold as against the owner on the other side of the Section line. He should have objected to those monuments long ago.
This line of reasoning by the courts always seems crazy to me; it seems to presuppose omnipotence on the landowners behalf. And it also seems to create a situation where the courts are telling landowners that they should expect land surveyors to be incompetent.
If a surveyor sets intermediate monuments that purport to be on an existent line, and land is transferred on one side of that line in accordance with those monuments, the adjoining landowner should have every reason to believe that the monuments are on the freaking line and he should have no reason to object to them.
I think that mistaken belief should be almost a foolproof defense against acquiescence. Here in Maryland the courts have been pretty adamant that if a line is created by a patent/deed/plat, and the line can be located based on the creating instrument, that (in the absence of estoppel) subsequent deeds, plats, surveys, etc., are irrelevant in determining the location of the line.
Any discussion of subsequent deeds is irrelevant. In the absence of facts giving rise to an estoppel, we decline to establish a rule of law that binds successors to real property to all descriptions of property made by their predecessors in prior deeds, particularly where the original patent contradicts such deeds. Moreover, one purporting to be an adjoining land-owner should not be allowed to capitalize on such mistakes where the boundaries are correctly established by even earlier deeds or, in this case, earlier patents
-SKI ROUNDTOP, INC. v. Mary E. WAGERMAN, et al.
I oversimplified.
The survey and monuments alone won't necessarily become gospel after five years.
Frankly most people are too cheap to pay a little money to be sure the latest Surveyor is not trespassing onto their land. Then the neighboring landowner, who has no reason to question his own surveyor, builds valuable improvements in reliance on the survey while the neighbor does not object until, in some cases, decades later. I don't have a lot of sympathy for the public which in effect pays for not getting a survey with their land.
That is the rationale behind it. California's statute of limitations is only 5 years. The 5 years does not start to run, however, until all of the requirements of whichever law is being used are met. For example, in the case of Adverse Possession, California requires payment of taxes and the Courts are pretty much presuming taxes are paid on the record line (except in limited circumstances) so in most cases the Statute never starts to run.
