Establishment

That's a very good question but it will take some time to compose an answer, I'm corralling my Grandson right now.

In Maine the key case in this regard is Knowles v. Toothaker, 58 Me. 174. It's recited in full in Evidence and Procedures for Boundary Location, 2d ed. Brown, Robillard, and Wilson, 1981.

The most important case in California useful for Land Surveyors is Ernie v. Trinity Lutheran Church, 51 Cal.2d 702 (1959) where the California Supreme Court holds that a 25 year old survey and improvements built to it is sufficient to infer an agreement.

The latest pronouncement of the Supreme Court is Bryant v. Blevins, 9 Cal 4th 47 (1994) wherein Justice George takes way too many pages to say a fence of unknown origin is not enough to infer an agreement. This case is of less value because the parties stipulated to the survey by one side. In my opinion the Court of Appeals had it right and the case was easily distinguishable from two other recent Appellate level cases which the Supremes said it like better. Justice Mosk wrote a scathing dissent where he criticized Justice George for creating a bifurcated standard of proof which never existed before, one for fences and another for everything else.

Mello v. Weaver, Young v. Blakeman, and Price v. DeReyes (the last two written by Justice Shaw who does a really good job of explaining boundaries).

To balance your perspective on Calif law, you might also want to read case law such as Armitage v Decker and Martin v Van Bergen. Here is an opinion on the later case by a law professor from GGU.
http://rogerbernhardt.com/index.php/ceb-columns/339-martin-v-van-bergen-agreed-boundaries

While a certain someone/ couple of surveyors I know like to ignore or discount Martin v Van Bergen, I think it is a case to be familiar with for a balanced perspective of California boundary law.

Martin mainly announces an objective standard for California which is not supported by a long line of cases since Sneed v. Osborne and has been ignored by later cases.

Armitage is one of the two cases which was easily distinguishable by Bryant. Armitage involved a fence and established monuments (which the Court in effect held are the boundary). The other case is the grape stake fence case (Mesnick v. Caton) which I think involved a subdivision lot line.

Fences are not favored, which makes some sense in the intermountain west, unless there is direct evidence of mutual uncertainty and mutual agreement that the existing fence was accepted as the boundary (there is an unpublished case in L.A. which illustrates this-I have to look on my computer) or a new fence was built to be the boundary (Kliban v. Dixon, unpublished). As a general rule I don't think Land Surveyors should declare fences to be boundaries without support from objective evidence such as monuments or being called for in the Deeds. If the boundary is objectively uncertain then the fence may be the best available evidence but if monuments disagree with the fence, hold the monuments.

California case law clearly favors established monuments, particularly those having been set by documented surveys long ago. See Bloxham v. Saldinger and Ernie v. Trinity Lutheran Church. Cases such as these and Justice Shaw's cases that use objective reasoning are much better guidance for Land Surveyors than Martin which repeats expert testimony where the experts in effect say "I dunno" like they expect the judge to go out there in his robes and wingtips and Survey the boundary himself.

Thanks for all of that! I was mistankenly thinking that an grantor and grantee measuring and marking for the first time would be seen as the original surveyors, monumenting the line with their fence posts. But it sounds like if a surveyor is not known to be involved (i.e. no recorded subdivision, no recorded or unrecorded mapping, no call for any physical object in deeds, no found monuments in the ground) then the agreed boundary would have to come into play.

The late Richard Schaut is looking down on this thread from on high thinking "damn, would I love to weigh in here, this was my baliwick when I was alive. And I loved to post comments about it!"

roger_LS, post: 444998, member: 11550 wrote: Thanks for all of that! I was mistankenly thinking that an grantor and grantee measuring and marking for the first time would be seen as the original surveyors, monumenting the line with their fence posts. But it sounds like if a surveyor is not known to be involved (i.e. no recorded subdivision, no recorded or unrecorded mapping, no call for any physical object in deeds, no found monuments in the ground) then the agreed boundary would have to come into play.

Yes, more or less.

After Bryant that's mostly true. The reason surveys are easier to be proven established is because that's the reason why people hire Surveyors. If they don't know where the boundary is located they can hire a surveyor to find out, that's why the surveyor sets monuments, to mark the boundaries.

On the other hand, you can't presume a fence was built to mark the boundary, particularly by both property owners. It may have been built by one owner in a convenient location or based on a mistaken assumption. If the mistake is mutual then they may be bound to the fence. This is why the Supreme Court established the rule in the case of fences that more evidence of mutual uncertainty and mutual agreement is needed beyond just a fence that's been there a long time. It's a bit nuanced what they consider evidence of an agreement, it doesn't have to be in so many words, just evidence of conversations that indicate the presence of an agreement but what suffices? Courts seem to view it differently. It's gray enough that I would avoid subjective cases of just a fence. I've seen cases since 1994 (all unpublished) with similar conversations where one was yes it's an agreed boundary and the other no it's not. Some of it has to do with the Appellate Courts deferring to trial courts saying it's strictly a question of fact whether there's a boundary agreement or not.

Blaisdell v. Nelson

Bryant makes things challenging because in cases where deeds are very old, there is no one around to testify to an explicit agreement or any type of agreement. Let me describe further the situation. This is an old average sized city block that began to be divided in the early 1900's, by the 1930's it was moderately well developed with around a dozen houses and some garages built in the block. Many of the initial deeds ran across the block from street to street, then were later split down to more normal sized lots of 50x100 with frontage on just one street. The deeds share a common call that references a remote point some 1000' feet away but give no call to monuments. On each street there is a pattern of monuments and corresponding possession lines at the edge of the street that agree with the frontage distances recited in the respective deeds. There are historical and current patterns of possession connecting the stationing between the two streets, and with this pattern all lots within the block recieve the general dimensions of the 50'x100' lots described on the respective deeds. But the bearing connecting these two sets of stationing on each steeet is at variance with the recited deed bearing by a couple degrees which makes about 7' in the width of the block. So, this is not the case of a single fence not matching record bearing but a pattern of fencing and buildings throughout the block. The result is that any survey that starts on on one particular street and runs record bearing away from the street will miss possession significantly, in cases running lines through buildings built as early as the 1920's. If record bearing were to be held it would be Diehl v. Zanger all over again and all lines in the block would need to move. Without any known survey I suspect that an initial line was somehow marked on the ground, then when subsequent deeds were conveyed out the parties simply measured from this first line and the pattern developed. I am trying to help the attorney to get this right.

roger_LS, post: 445015, member: 11550 wrote: Bryant makes things challenging because in cases where deeds are very old, there is no one around to testify to an explicit agreement or any type of agreement. Let me describe further the situation. This is an old average sized city block that began to be divided in the early 1900's, by the 1930's it was moderately well developed with around a dozen houses and some garages built in the block. Many of the initial deeds ran across the block from street to street, then were later split down to more normal sized lots of 50x100 with frontage on just one street. The deeds share a common call that references a remote point some 1000' feet away but give no call to monuments. On each street there is a pattern of monuments and corresponding possession lines at the edge of the street that agree with the frontage distances recited in the respective deeds. There are historical and current patterns of possession connecting the stationing between the two streets, and with this pattern all lots within the block recieve the general dimensions of the 50'x100' lots described on the respective deeds. But the bearing connecting these two sets of stationing on each steeet is at variance with the recited deed bearing by a couple degrees which makes about 7' in the width of the block. So, this is not the case of a single fence not matching record bearing but a pattern of fencing and buildings throughout the block. The result is that any survey that starts on on one particular street and runs record bearing away from the street will miss possession significantly, in cases running lines through buildings built as early as the 1920's. If record bearing were to be held it would be Diehl v. Zanger all over again and all lines in the block would need to move. Without any known survey I suspect that an initial line was somehow marked on the ground, then when subsequent deeds were conveyed out the parties simply measured from this first line and the pattern developed. I am trying to help the attorney to get this right.

Run Forrest, Run!!!

Kidding aside, sounds like a very common type of Ca retracement that is full of twists, turns and trap doors with alternate solutions often relying on the slightest detail differentiating one survey from another. Sometimes I wonder if we could somehow codify retracement procedures and better empower surveyor retracement authorities so that perhaps we could move away from limiting solutions to adjudication or trying to opine as to a resolution based on conflicting case law.

clearcut, post: 445023, member: 297 wrote: Run Forrest, Run!!!

Kidding aside, sounds like a very common type of Ca retracement that is full of twists, turns and trap doors with alternate solutions often relying on the slightest detail differentiating one survey from another. Sometimes I wonder if we could somehow codify retracement procedures and better empower surveyor retracement authorities so that perhaps we could move away from limiting solutions to adjudication or trying to opine as to a resolution based on conflicting case law.

I think there is enough here to make the case, I just don't know how it is going to be presented or what will be referenced. Because of the abundance of evidence including fencing, buildings and other improvements built in a pattern following the general record dimensions of the deeds (though at variance with bearing) I think a convincing case can be made that the improvements were indeed set to mark the property lines and not just some convenient or random position and as such, are the best available evidence of the intent of the deeds on the ground. But, we'll see.

roger_LS, post: 445015, member: 11550 wrote: Bryant makes things challenging because in cases where deeds are very old, there is no one around to testify to an explicit agreement or any type of agreement. Let me describe further the situation. This is an old average sized city block that began to be divided in the early 1900's, by the 1930's it was moderately well developed with around a dozen houses and some garages built in the block. Many of the initial deeds ran across the block from street to street, then were later split down to more normal sized lots of 50x100 with frontage on just one street. The deeds share a common call that references a remote point some 1000' feet away but give no call to monuments. On each street there is a pattern of monuments and corresponding possession lines at the edge of the street that agree with the frontage distances recited in the respective deeds. There are historical and current patterns of possession connecting the stationing between the two streets, and with this pattern all lots within the block recieve the general dimensions of the 50'x100' lots described on the respective deeds. But the bearing connecting these two sets of stationing on each steeet is at variance with the recited deed bearing by a couple degrees which makes about 7' in the width of the block. So, this is not the case of a single fence not matching record bearing but a pattern of fencing and buildings throughout the block. The result is that any survey that starts on on one particular street and runs record bearing away from the street will miss possession significantly, in cases running lines through buildings built as early as the 1920's. If record bearing were to be held it would be Diehl v. Zanger all over again and all lines in the block would need to move. Without any known survey I suspect that an initial line was somehow marked on the ground, then when subsequent deeds were conveyed out the parties simply measured from this first line and the pattern developed. I am trying to help the attorney to get this right.

Bloxham seems to leave legal doctrines behind and declare that it's more a pure question of fact so if the pattern of possession lines fits in a block then you don't need the agreed boundary doctrine. This seems to be the trend. The word "possession" is a difficult word to define which is why occupation is more commonly used.

There is a late 19th century case that declares the act of the subdivider setting up occupation himself without benefit of a surveyor amounts to an original survey, it escapes me right now.

Dave Karoly, post: 445038, member: 94 wrote: Bloxham seems to leave legal doctrines behind and declare that it's more a pure question of fact so if the pattern of possession lines fits in a block then you don't need the agreed boundary doctrine. This seems to be the trend. The word "possession" is a difficult word to define which is why occupation is more commonly used.

There is a late 19th century case that declares the act of the subdivider setting up occupation himself without benefit of a surveyor amounts to an original survey, it escapes me right now.

I was thinking Bloxham wouldn't be similar enough because the deeds call to the rancho and the rancho was originally surveyed and Bloxhams surveyor found the stump of an original line tree within a few hundred feet from the site which corroborated the position of the retracement surveys in the area. In this case, I have no known direct connection between the original deeds and the pattern of occupation.

A buddy of mine had a survey go to court where he produced court exhibits depicting the harmoneous relationship amongst fencelines between themselves and lot sizing. These fencelines dated back to the original partitioning deeds. On the other side of the courtroom was the plaintiff's surveyor who had recently monumented the area based strictly on the aliquot dimensioning called for in the deeds, resulting in a 20'+- shift from the fencelines. The presiding judge (superior court) ruled directly from the bench without going back to his chamber to mull it over. The judge felt it was a no-brainer, the fencelines were how the division was laid out. It was never appealed.

clearcut, post: 445041, member: 297 wrote: A buddy of mine had a survey go to court where he produced court exhibits depicting the harmoneous relationship amongst fencelines between themselves and lot sizing. These fencelines dated back to the original partitioning deeds. On the other side of the courtroom was the plaintiff's surveyor who had recently monumented the area based strictly on the aliquot dimensioning called for in the deeds, resulting in a 20'+- shift from the fencelines. The presiding judge (superior court) ruled directly from the bench without going back to his chamber to mull it over. The judge felt it was a no-brainer, the fencelines were how the division was laid out. It was never appealed.

That's encouraging, hopefully things will work out.

Dave Karoly, post: 445038, member: 94 wrote: Bloxham seems to leave legal doctrines behind and declare that it's more a pure question of fact so if the pattern of possession lines fits in a block then you don't need the agreed boundary doctrine. This seems to be the trend. The word "possession" is a difficult word to define which is why occupation is more commonly used.

There is a late 19th century case that declares the act of the subdivider setting up occupation himself without benefit of a surveyor amounts to an original survey, it escapes me right now.

So it could be presented that based on all of the evidence, I believe that the lines are in a certain place and if my case is more convincing than the other side it could be left at that without getting into legal doctrines. So Bloxham is significant because it provides authority for a surveyors ability to make this judgment about the position of the lines. I only wish that I had an explanation for how all this happened, but don't think it's significant because a strict reading of the deeds would throw the block in dis-harmony while my construction allows everything to remain in place with fence lines being property lines and everyone getting the general dimensions of their deed.

I believe Dave K is referring to Bullard v. Kempff Supreme Court of Ca, November 2, 1897 119 Cal. 9.
Another case is French v. Brinkman, Supreme Court, Decmeber 3, 1963 60 Cal. 2d 547.