I borrowed a Course Manual (reads like a legal Treatise) by Chuck Karayan. The book is an excellent resource; it should be in print.
He says the Establishment Doctrines, Acquiescence and Estoppel, are Equitable Doctrines and Land Surveyors should be aware of them but not make determinations that they exist. Meanwhile Original Boundaries is a legal doctrine and Land Surveyors can make that determination. He doesn't mention implied boundary line agreements but I assume that would be legal as well due to the element of contract.
It appears that the Establishment Doctrines serve at least a dual purpose (if not multipurpose). There is the purpose most commonly thought of (which gives land surveyors the most heartburn): subjective uncertainty where the true boundary can be ascertained but the property owners choose a different location anyway (the fence vs the original boundary). Note: they have to be unaware of the true location in order for the agreement to be valid.
Other purposes are probably more common than we think: the original boundary, evidence of which has been lost to time but for some non-original or collateral evidence; the Doctrines favor the evidence we have versus the evidence which is missing or a proportionate solution. There is the situation where the Deed description calls for no boundary monuments yet there is an obvious close fit to a monument or occupation line. The Courts have handled this in at least two ways (if they wish to hold the physical evidence): one is to use an establishment doctrine to call it the boundary and the other is to use principles of Deed construction such as favoring un-called for monuments set by the parties near the time the Deed was delivered.
It appears these Doctrines are not entirely equitable or legal; they reside somewhere in the middle. The Opinions I have read don't go into it, Appellate Justices, generally, favor less technical analysis to avoid creating an injustice by technicalities.
Dave Karoly, post: 353843, member: 94 wrote:
He says the Establishment Doctrines, Acquiescence and Estoppel, are Equitable Doctrines and Land Surveyors should be aware of them but not make determinations that they exist. Meanwhile Original Boundaries is a legal doctrine and Land Surveyors can make that determination. He doesn't mention implied boundary line agreements but I assume that would be legal as well due to the element of contract.
Does he provide any source or reference (case law, statute, etc/) for his analysis, or is this merely his opinion?
I don't see how the establishment doctrines can be ignored and/or un-utilized by a boundary surveyor, they are ESTABLISHMENT doctrines. For there to be a boundary for the surveyor to FIND, it MUST have been previously established on the ground.
It may have to do with remedies. The only legal remedy is damages, everything else, such as quiet title, ejectment, and declaratory relief is equitable.
Chuck, in his book, says that prior to Brown there were two camps in Surveying known by their pejorative names: the deed line stakers who only staked their client's Deed even in the face of senior rights, and the fence line Surveyors who only mapped occupation lines. He said Curt Brown sought a middle way of surveying Record Title boundaries leaving the conflict with occupation up to the Courts. Karayan's book advocates for a position a little more towards the occupation side by complying with all of the boundary laws. I think Brown tried to do that towards the end of his life.
I believe the Surveyor in Ernie v. Trinity Lutheran Church staked the client's Deed description ignoring the fact that the Church's original boundary with Ernie, if it had been held, would've prevented the whole litigation in the first place. As it was our Supreme Court ruled an agreement could be inferred therefore it is an agreed boundary. For decades here, the Surveyor would stake the Deed and the court, depending on the evidence would either agree or waive it off using the Agreed Boundary Doctrine to clear the conflict.
Dave,
That's a pretty succinct restatement of the principle. Jeff Lucas tries to make that distinction as well.
Ernie is like this: the block is record 300'. The block is actually 299'. Ernie's predecessor had a Deed in the middle of the block, nominally 60' wide, which was written so that it the junior parcel. Ernie's predecessor sold the Church a 5' wide strip 25 years before the litigation, I have the Deed at home, it was written incorrectly. The description measures west from the northeast block corner. Then Ernie acquired a 55' wide parcel again only tied to the east line of the block.
It's obvious to me that the Church thought that they paid for 5' and it should receive 5'. The Church had a Survey (according to the Opinion) and built improvements (a fence, concrete walkway, and rectory building) based on it 25 years prior to the lawsuit. I think a proper Survey would've staked the east line of the five foot strip (which is right down the fence) and avoided the litigation. Ernie takes the shortage per her predecessor Deeds and there is no problem. As it is it cost Ernie and the Church a lot of time and money but it gives us the gift of a really well reasoned and written appellate opinion. The Court probably could not vacate the Survey due to the substantial evidence rule but they could declare the correct legal doctrine.
"It is wholly immaterial that one element is accented by one word, and the other by the other two. We are not studying etymology, but law. There are always two things to be asked: first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group. The former generally offers the only difficulties." -Oliver Wendell Holmes, Jr., The Common Law, Lecture VI, Possession (page 145, ABA 2009 edition).
I don't mean to hijack, but that youngun sure is a-growing! It seems like just yesterday you had an avatar of you and a little baby!
J. T. Strickland, post: 353953, member: 246 wrote: I don't mean to hijack, but that youngun sure is a-growing! It seems like just yesterday you had an avatar of you and a little baby!
Yes, he is almost 3' tall. We still think of him as a baby, though ;-).
Dave Karoly, post: 353843, member: 94 wrote: I borrowed a Course Manual (reads like a legal Treatise) by Chuck Karayan. The book is an excellent resource; it should be in print.
He says the Establishment Doctrines, Acquiescence and Estoppel, are Equitable Doctrines and Land Surveyors should be aware of them but not make determinations that they exist. Meanwhile Original Boundaries is a legal doctrine and Land Surveyors can make that determination. He doesn't mention implied boundary line agreements but I assume that would be legal as well due to the element of contract.
It appears that the Establishment Doctrines serve at least a dual purpose (if not multipurpose). There is the purpose most commonly thought of (which gives land surveyors the most heartburn): subjective uncertainty where the true boundary can be ascertained but the property owners choose a different location anyway (the fence vs the original boundary). Note: they have to be unaware of the true location in order for the agreement to be valid.
Other purposes are probably more common than we think: the original boundary, evidence of which has been lost to time but for some non-original or collateral evidence; the Doctrines favor the evidence we have versus the evidence which is missing or a proportionate solution. There is the situation where the Deed description calls for no boundary monuments yet there is an obvious close fit to a monument or occupation line. The Courts have handled this in at least two ways (if they wish to hold the physical evidence): one is to use an establishment doctrine to call it the boundary and the other is to use principles of Deed construction such as favoring un-called for monuments set by the parties near the time the Deed was delivered.
It appears these Doctrines are not entirely equitable or legal; they reside somewhere in the middle. The Opinions I have read don't go into it, Appellate Justices, generally, favor less technical analysis to avoid creating an injustice by technicalities.
I believe in the establishment of a boundary. Doesn't matter how it got where it is if the boundary line is established, anything other than that line is trying to move the line and nobody has the authority to do that other than the landowners. What good is some other line deducted out of the info in the deed if it doesn't land on the boundary? These things can be figured out. A surveyor can collect the evidence and most of it may not be found in the deed. A surveyors duty is to locate the boundary. If you can't do that what good are you?
Dave Karoly, post: 353899, member: 94 wrote: "It is wholly immaterial that one element is accented by one word, and the other by the other two. We are not studying etymology, but law. There are always two things to be asked: first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group. The former generally offers the only difficulties." -Oliver Wendell Holmes, Jr., The Common Law, Lecture VI, Possession (page 145, ABA 2009 edition).
I really like this quote. Think about it in terms of how we should be finding the boundaries we are hired to survey.
"first, what are the facts which make up the group in question;" This means "go find the evidence", and in many cases, the relevant evidence isn't found in the lines on your computer screen, nor on your data collector.
"what are the consequences attached by the law to that group." This is the application of the law to the facts derived from all the evidence that has been gathered.
"The former generally offers the only difficulties." Did O.W. Holmes write this specifically with the modern surveyor in mind? If there is one glaring lack of proficiency across our profession, it is our inability to gather all the relevant evidence. The laws pertaining to boundary location really aren't that difficult to understand, it is the gathering and recognition of relevant evidence that we apparently cannot master. Why is this?
How many of us were taught by our mentors, and through our reading of "treatises" and texts to properly gather evidence? Not many. I was taught by mentors, texts, seminar teachers, etc., that the only evidence that mattered was the "math" contained in the deeds, plats, data collectors, and computer drawings of such. I was taught (and too many are still teaching) that parol evidence and evidence of possession, agreement, JR/SR rights, estoppel, and other ESTABLISHMENT doctrines were "beyond the scope and understanding of surveyors" and should always be left to others that are more capable of dealing with these "complicated" matters - attorneys. [sarcasm]Maybe we need more required courses in calculus and less boundary experience in our licensing requirements.[/sarcasm]
Brian Allen, post: 353984, member: 1333 wrote: I really like this quote. Think about it in terms of how we should be finding the boundaries we are hired to survey.
"first, what are the facts which make up the group in question;" This means "go find the evidence", and in many cases, the relevant evidence isn't found in the lines on your computer screen, nor on your data collector.
"what are the consequences attached by the law to that group." This is the application of the law to the facts derived from all the evidence that has been gathered.
"The former generally offers the only difficulties." Did O.W. Holmes write this specifically with the modern surveyor in mind? If there is one glaring lack of proficiency across our profession, it is our inability to gather all the relevant evidence. The laws pertaining to boundary location really aren't that difficult to understand, it is the gathering and recognition of relevant evidence that we apparently cannot master. Why is this?
How many of us were taught by our mentors, and through our reading of "treatises" and texts to properly gather evidence? Not many. I was taught by mentors, texts, seminar teachers, etc., that the only evidence that mattered was the "math" contained in the deeds, plats, data collectors, and computer drawings of such. I was taught (and too many are still teaching) that parol evidence and evidence of possession, agreement, JR/SR rights, estoppel, and other ESTABLISHMENT doctrines were "beyond the scope and understanding of surveyors" and should always be left to others that are more capable of dealing with these "complicated" matters - attorneys. [sarcasm]Maybe we need more required courses in calculus and less boundary experience in our licensing requirements.[/sarcasm]
What I find frustrating is the improper and overly technical application of legal principles such as original boundaries. The numerous Opinions I have read are not nearly as rigidly technical as we are. The Courts will go to great lengths to avoid disturbing settled boundaries.
The Common Law is interesting, very heavy in theory with some very simple fact examples like a pocket book found on the floor of a shop vs on the barber's table, seriously there is English case law about who has possession, the finder, shop keeper, or owner. And he doesn't seem to like Immanuel Kant 🙂 He thinks the Germans have Roman Civil Law all wrong, I think, hard to tell sometimes.
Dave Karoly, post: 353987, member: 94 wrote: What I find frustrating is the improper and overly technical application of legal principles such as original boundaries. The numerous Opinions I have read are not nearly as rigidly technical as we are. The Courts will go to great lengths to avoid disturbing settled boundaries.
The Common Law is interesting, very heavy in theory with some very simple fact examples like a pocket book found on the floor of a shop vs on the barber's table, seriously there is English case law about who has possession, the finder, shop keeper, or owner. And he doesn't seem to like Immanuel Kant 🙂 He thinks the Germans have Roman Civil Law all wrong, I think, hard to tell sometimes.
Yeah, the science of law is more challenging than rocket science in many ways. One of the best books on English law and it's transition to American is Thomas Cooley's (yep same guy) edition of Blackstone printed 1899.
Duane Frymire, post: 353998, member: 110 wrote: Yeah, the science of law is more challenging than rocket science in many ways. One of the best books on English law and it's transition to American is Thomas Cooley's (yep same guy) edition of Blackstone printed 1899.
I have the ABA edition of Blackstone (1796). Some of it is really readable, especially the criminal parts, and some is an excruciating slog through very complex English law.
Brian Allen, post: 353984, member: 1333 wrote: I was taught (and too many are still teaching) that parol evidence and evidence of possession, agreement, JR/SR rights, estoppel, and other ESTABLISHMENT doctrines were "beyond the scope and understanding of surveyors" and should always be left to others that are more capable of dealing with these "complicated" matters - attorneys.
What that implies is that land surveyors are not professionals, not capable of being professionals and therefore should not be allowed to practice as professions. So that begs the question, why license them as professionals or do we? Step up or get out of the way!
LRDay, post: 354066, member: 571 wrote: What that implies is that land surveyors are not professionals, not capable of being professionals and therefore should not be allowed to practice as professions. So that begs the question, why license them as professionals or do we? Step up or get out of the way!
Well, frankly, it does seem to be "beyond the scope and understanding of surveyors", generally speaking; and surveyors are not really licensed as professionals in most U.S. jurisdictions according to most U.S. statutes. Obviously, there are many who have stepped up, but more (in and out of the profession) who will not get out of the way.
It doesn't have to be that way. Attorneys and Courts will always be needed in boundary matters (due process requires it) but well educated surveyors could reduce the incidence of these matters going the full course of due process.
It's a question of what society wants. By all measures available, society still wants cheap and fast surveys and litigation over differences in them, rather than a well reasoned surveyor's opinion based on knowledge of evidence, law, and the application of one to the other that might avoid litigation.
This was understandable in our quickly expanding and developing nation, in order to get claims made and production started (much to the chagrin of the Native Americans, Mexicans, English, and French), and then during population expansion after world war II. Now it's merely preying on the public naivet̩. Courts and legislatures are filling the gap by simply making rules to eliminate old boundaries that surveyors can't seem to find. Those that have to do business based on stable land boundaries are going along with making affidavits of no change and GIS pictures the legal boundaries. Surveyors are being swept out of the way whether we like it or not. Failure to adapt is making the profession obsolete. It was once about measuring, sampling, identifying, analyzing the natural world and its boundaries. Surveyors, through lack of advanced education, have not kept up to date on any of these other than measuring. And technology has made measuring easier for those who have invested in the other areas. Sorry to be negative, but surveyors have made themselves buggy whips.
Duane Frymire, post: 354136, member: 110 wrote: It's a question of what society wants. By all measures available, society still wants cheap and fast surveys and litigation over differences in them, rather than a well reasoned surveyor's opinion based on knowledge of evidence, law, and the application of one to the other that might avoid litigation.
The Courts here will listen to the Surveyor. Unfortunately when the Attorney stipulates to or doesn't oppose the other side's Survey things can go pretty badly off of the tracks.
I had the standard boundary education when I passed the California exam. Then I started reading Lucas and Stahl, it was like a different world. I've been trying to figure it out over the past 12 years or so. About five years ago I was pretty dissatisfied with the materials available, none of them being from California. I started looking for a more legally rigorous approach to justify my opinions or disprove them as happens sometimes. I started with our agreed boundary doctrine, there are a lot of cases. Now I'm working on original boundaries since a lot of the agreed boundaries cases should've been original boundary cases.
We have three multiple monument problems going on right now. I'm going to write a practical boundary manual with the rules and examples, both ways, like Skelton. There are plenty of cases to work from. The idea is to try to address some of the serious misapplications I have seen. One case involves a 500' pincushion, another is only 80'. Both involve faulty Superior Court Judgments because of bad boundary surveying. The third case is minor and I think can be disposed of relatively easily. I figure if I sell 10 copies it'll be a victory.
My theory is Brown wrote a book for Engineers to do fast boundaries for their projects. The old way of just staking the Deed was unsatisfactory; they needed something a little more legally scientific, maybe more equitable. They were building 1000 lots per week here in the 1950s. If two square mile subdivisions had a common boundary the developers just wanted to build their 2500 lot subdivisions, they didn't care about the old fence or maybe even the original boundary. Just slap some math down and get it built so everyone can make money.
New world surveying has been about new boundaries and development for the past several hundred years. The work is changing now. It's more about retracing now, maintenance. We have two new published boundary cases. In Bloxham v. Saldinger, 228 Cal. App. 4th 729, the Court clearly favors the Surveyor who follows the established boundary even though it's not straight over the other Surveyor who simply connects two points several miles apart. The other case is only published as to the attorney fee section which is too bad, it has a good parol evidence rule section in the unpublished section. Even in Bryant v. Blevins, 9 Cal. 4th 47, they clearly signal old Surveys are to be favored if at all possible.
I really appreciate the insights I've gained from you, Duane, your posts have been very helpful.
Dave Karoly, post: 354150, member: 94 wrote: I'm going to write a practical boundary manual with the rules and examples, both ways, like Skelton... I figure if I sell 10 copies it'll be a victory.
I'm your first pre-order customer. You have great insight on these cases and are a great resource in this forum.
I'll help make it ten!
Dave,
I'd like to pre-order a copy.
Thanks for your hard work.
DDSM:beer:
Dave,
Sign me up for a copy.