roger_LS, post: 445171, member: 11550 wrote: 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.
Yes, my thoughts are along the lines of avoiding the Agreed Boundary Doctrine if at all possible. Locate the best evidence of the original boundaries in place, treat it as a question of fact. You can't testify to a question of law (which doctrine applies but sometimes courts treat this as a question of fact) but you can testify to the fact of where the actual physical boundary is located.
The Agreed Boundary Doctrine is supposed to be treating the boundary as if it's the one and only boundary, but what happens is the Surveyor says the "true" boundary is somplace off the established boundary then the Lawyer argues that the Agreed Boundary Doctrine places it at the established location. If the Court disagrees then you are left with the "true" boundary which is often in material conflict with the possession line as it has been for decades. Another common error is the Lawyer argues the boundary is established by Adverse Possession and that is easily flicked away by the other side.
I found an unpublished case in San Francisco which is a disastrous miscarriage of Justice as far as I'm concerned. The County Surveyor fit the block to the occupation lines in 1941. Everything lined up, the fences, zero lot line buildings, etc. The building subject of the litigation (built in the 19th century for crying out loud) is shown on the County Surveyor's 1941 map within its Deed lines. In the 1990s private surveyors show the old building encroaching because they just measured west the record distance from relatively recent centerline control on the east line of the block. Both Surveyors agreed within a tenth; no one argued the obvious, the recent subdivision control doesn't necessarily control the location of the 1867 block. The Lawyer tried to argue Adverse Possession but that got squashed by the Court. So the owner of the old building is left in a bad situation, a very old house which supposedly encroaches 2' on the neighbor. The kicker is that the two lots in the litigation were owned by one person who sold the "encroaching" house first putting his grantee in possession of the entire building then sold the other lot, so even ignoring the County Surveyor's common sense solution it is ridiculous to call the old house encroaching given these circumstances and facts. Once upon a time, the Court would've seen the foolishness and corrected it but they seem to be much more reliant on Land Surveyors for guidance in these types of cases.
Great thread. Good posts, Dave. I'm glad the thread didn't bifurcate into two different topics. (sorry I just had to use bifurcate in a sentence after I looked it up)