California has a recent case which discusses the admissibility of extrinsic evidence in Boundary cases, unfortunately in the unpublished portion of the published case, Belle Terre Ranch, Inc. v. Wilson, 232 Cal. App. 4th 1468 (the published portion discusses Attorney Fees).
The complete cases (published and unpublished portions) is attached.
From the case:
A. Admissibility of extrinsic evidence
The Wilsons contend the trial court erred in finding the boundary to be as described by the Brunner survey because it improperly considered extrinsic evidence, specifically: (1) the testimony of Dick and Demostene regarding their understanding of the location of the property line; (2) evidence of the state of mind of the parties, including prior conversations between Wilson and Dick; and (3) evidence of the use permit obtained by the Wilsons.
1. The Dick and Demostene testimony about the property line
The Wilsons cite the parol evidence rule as prohibiting the testimony of Dick and Demostene: ÛÏWhere the language of a deed is plain, certain, and unambiguous, the surrounding facts and circumstances will not be considered.Û (Pinsky v. Sloat (1955) 130 Cal.App.2d 579, 588.) ÛÏParol evidence is not admissible to add to, detract from, or vary the terms of a deed.Û (Ibid.) But the parol evidence rule does not govern this case. The present action is not one pertaining to the accuracy of a property description in a deed.
No one disputed that the deed description was correct or tried to ÛÏadd to, detract from, or vary the terms of a deed.Û (Ibid.) Rather, the partiesÛª dispute revolved around locating on the ground the boundaries described in the deed. (See Bloxham, supra, 228 Cal.App.4th at pp. 737ÛÒ738.) Both expert and nonexpert testimony is admissible to prove the location of ÛÏmonuments, corners or lines as actually laid out on the ground by the official surveyor.Û (Id. at p. 737.) Such testimony ÛÏis not accepted for the purpose of varying or contradicting the terms of the deed, but to aid the trial court in its difficult task of translating the words of the deed into monuments on the surface of the earth . . . .Û
(Richfield Oil Corp. v. Crawford (1952) 39 Cal.2d 729, 741.) We do not see the testimony of Dick and Demostene as raising a parol evidence issue. The testimony of Dick and Demostene was also relevant to the ÛÏlines of occupation,Û which Crabtree testified gave him an extra level of comfort with the Brunner survey. Brunner, too, testified about the importance of the line of trees in determining boundaries otherwise in doubt.
We conclude the testimony was admissible under general principles of relevance, and the court considered it as evidence of the historical beliefs of adjoining landowners as to where the boundary lay: ÛÏthe adjacent landowners treated [the fence] as the property line for decades prior to this litigation.Û This did not violate the parol evidence rule. (See Williamson v. Pratt (1918) 37 Cal.App. 363, 367 [ÛÏthe construction placed upon a description in a deed, as shown by the acts and conduct of the grantor and his grantees, and the manner in which they have exercised their respective rights under their deeds for long periods of time with relation to a boundary line, is entitled to the gravest consideration in the determination by a court of the location of such lineÛ].)
Bloxham v. Saldinger, 228 Cal. App. 4th 729 (mentioned in the quote) is another recent case of interest. The weird thing about that case is they are arguing about the line not in dispute; it has to do with measuring from a Rancho Grant line to a Deed line, where is the grant line? The case deals with the grant line although the line in question appears to be well established. The Surveys are on line with Santa Cruz County.
Claire helpfully took a photo of me typing the post.
thanks Dave
It's interesting that the court had little trouble equating the beliefs of owners that the tree line and old fence were best evidence of the historical original survey line. Why do surveyors not get this ?
linebender, post: 350686, member: 449 wrote: It's interesting that the court had little trouble equating the beliefs of owners that the tree line and old fence were best evidence of the historical original survey line. Why do surveyors not get this ?
I guess surveyors are just obsessed with numbers, always worried about little numbers, kinda sad
The term "extrinsic evidence" and the texts that say you can only go to extrinsic evidence when there is an ambiguity in the deed bothers me. In surveying, the way I see it, even interpreting the deed itself requires the introduction of extrinsic evidence in order to figure out where, exactly, the deed is trying to reference to. Even if the math on the deed closes perfectly. I can't imagine a deed description that does not require me to go to the field and figure out exactly where that deed is describing to.
Dave Karoly, post: 350674, member: 94 wrote: California has a recent case which discusses the admissibility of extrinsic evidence in Boundary cases.
What am I missing here? The opinion you've posted describes a straight-up difference of expert opinion between two surveyors, both of whom were qualified as experts for the purpose of testimony. One surveyor reestablished the boundary in dispute by measurements from a nearby road and the other from a more distant fence that he assumed to perpetuate an old boundary.
Kent McMillan, post: 350781, member: 3 wrote: What am I missing here? The opinion you've posted describes a straight-up difference of expert opinion between two surveyors, both of whom were qualified as experts for the purpose of testimony. One surveyor reestablished the boundary in dispute by measurements from a nearby road and the other from a more distant fence that he assumed to perpetuate an old boundary.
I have learned to take what Justices say what the Surveyors did or said with a grain of salt. I have the two Surveys but not here, they are at the office. The Sonoma County surveys aren't on the internet so I had a friend who has them on disk email them to me. What Story did isn't quite what the opinion says, if I remember right.
It was ridiculous that the bloxham v. saldinger even went to trial. The losing party had hired a handful of surveyors before finding one that produced an answer they liked. Some were not paid. The prevailing surveyor used local monuments, both non-original monuments and original bearing trees to set it up. The other surveyor claimed to have (questionably) established the two end points of the 6 mile +/- line, struck a straight line between them, and ignored everything in between. The judgement correctly cites that the original Rancho survey was done by compass reading to a quarter of a degree. As such, the line, as it was originally run on the ground was never straight to begin with.
Tom Adams, post: 350696, member: 7285 wrote: The term "extrinsic evidence" and the texts that say you can only go to extrinsic evidence when there is an ambiguity in the deed bothers me. In surveying, the way I see it, even interpreting the deed itself requires the introduction of extrinsic evidence in order to figure out where, exactly, the deed is trying to reference to. Even if the math on the deed closes perfectly. I can't imagine a deed description that does not require me to go to the field and figure out exactly where that deed is describing to.
Hard to keep textbooks up with the constant accretion of legal opinion. Decisions have been moving away from the distinction between patent and latent ambiguity toward acknowledging that all relevant evidence is admissible unless a fairly specific and necessary rule keeps it out. The one text I know of that addresses this is "Interpreting Land Records" by Donald Wilson. I highly recommend it for all surveyor libraries (I have no connection with the author or publication).
Duane Frymire, post: 350862, member: 110 wrote: Hard to keep textbooks up with the constant accretion of legal opinion. Decisions have been moving away from the distinction between patent and latent ambiguity toward acknowledging that all relevant evidence is admissible unless a fairly specific and necessary rule keeps it out. The one text I know of that addresses this is "Interpreting Land Records" by Donald Wilson. I highly recommend it for all surveyor libraries (I have no connection with the author or publication).
I have always had a hard time with where "extrinsic evidence" ends and field evidence begins. By the same token, I always wondered where the line between coming up with a "legal opinion" and a survey or boundary opinion begins and ends. It finally struck me, that those differences were just made up differences. Whenever I find a typo or bust in a description (such as NE instead of NW) I make the leap to decide where the boundary is and render a part of the legal description as incorrect. Same with when I decide that an "uncalled for" fence is the best available evidence of where the boundary was originally established. The story goes on and on..... in fact with nearly every survey were ever conduct.
The fact is that the land surveyor does render a legal opinion as to where the boundary is, and the land surveyor does step outside the four corners of the document. Somehow we have put some limits (or a defined line) as to exactly what is a legal determination and what is a boundary determination when that difference is one big, fat, grey blurred line.
Tom Adams, post: 350870, member: 7285 wrote: I have always had a hard time with where "extrinsic evidence" ends and field evidence begins. By the same token, I always wondered where the line between coming up with a "legal opinion" and a survey or boundary opinion begins and ends. It finally struck me, that those differences were just made up differences. Whenever I find a typo or bust in a description (such as NE instead of NW) I make the leap to decide where the boundary is and render a part of the legal description as incorrect. Same with when I decide that an "uncalled for" fence is the best available evidence of where the boundary was originally established. The story goes on and on..... in fact with nearly every survey were ever conduct.
The fact is that the land surveyor does render a legal opinion as to where the boundary is, and the land surveyor does step outside the four corners of the document. Somehow we have put some limits (or a defined line) as to exactly what is a legal determination and what is a boundary determination when that difference is one big, fat, grey blurred line.
Yes, that's one of the things that bothers me about jurisdictions that go directly to acquiescence without first passing the retracement square. It requires a surveyor to give legal advice on how testimony or actions/non-actions have affected legal rights, rather than the surveyor giving a quasi-judicial and objective opinion on location of a boundary per the deed and related extrinsic evidence. It may be a fine line, but it's there.
Testimony or actions/non-actions relating to what a person thinks is the true line requires subjective opinion of the witnesses state of mind. It's like asking someone why they put a trout in the milk, and then giving an opinion that agrees or disagrees with the statement depending on how we like how they answered, or how fair it may seem to either party. This makes it a legal opinion, an advocacy of one parties legal rights over another's. It requires an advocacy, inference, belief, or disbelief relating to the thoughts of another.
On the other hand, in retracement, we find the trout in the milk and don't have to look to why it's there, but can ask if anyone knows who put it there (filed maps, testimony, historical practices) for corroboration purposes. The opinion is the trout is in the milk, therefore someone put it there, and if it's in the vicinity of where people contracted to put a trout in the milk, then it's more likely than not the same trout in the same milk if the best available evidence suggests it. The opinion doesn't depend on what someone else might have been thinking, but only on our objective analysis of real evidence. Therefore, it's not a legal opinion but a quasi-judicial opinion. It requires an inference of what took place based on the evidence, regardless of how people think about it or how it affects their legal rights.
Duane Frymire, post: 350883, member: 110 wrote: It's like asking someone why they put a trout in the milk
Graphic:
Mike Berry, post: 350888, member: 123 wrote: Graphic:
Two things would work to kill the fish: first, milk is much more acidic than the water fish are used to (milk pH 6.5-6.8, where fresh is about 7.6 and seawater 8.3). You know that feeling when your eyes burn from a chemical? Imagine that all over your body and lungs a hundred times worse. That's what happens to the low pH fish.
The other thing that will kill it from milk is the difference from water with regard to osmotic pressure. Fish are very sensitive to osmotic balance.
RADAR, post: 350892, member: 413 wrote: Two things would work to kill the fish: first, milk is much more acidic than the water fish are used to (milk pH 6.5-6.8, where fresh is about 7.6 and seawater 8.3). You know that feeling when your eyes burn from a chemical? Imagine that all over your body and lungs a hundred times worse. That's what happens to the low pH fish.
The other thing that will kill it from milk is the difference from water with regard to osmotic pressure. Fish are very sensitive to osmotic balance.
Ah, west coast fresh water! In the Adirondacks at least a third of our lakes have ph 5 or less from acid rain. ph levels have been rising a bit since epa regulations in the 80's and trout made a bit of a comeback, but recent supreme court decision limiting epa regs on power plants are going to be a setback. Most of our rivers don't look like milk anymore though. Still, the entire Adirondack region has health advisory that children and women of child bearing age should eat no fish from the regions waters due to mercury concentrations from low ph levels. But the waters don't look polluted, many people think they are not polluted, fish are again able to live in many of them, but the best available evidence suggests man has put something in the waters that detrimentally affect trout and people.
linebender, post: 350686, member: 449 wrote: It's interesting that the court had little trouble equating the beliefs of owners that the tree line and old fence were best evidence of the historical original survey line. Why do surveyors not get this ?
They do - they are just ignorant of the fact...
Tom Adams, post: 350870, member: 7285 wrote: that difference is one big, fat, grey blurred line
:good:
