It's true that surveyors need to know their own state court rulings and quirks that are established. For example our Supreme Court ruled that only the court can establish a boundary by acquiescence. At the same time the court tells us what is necessary for a boundary to exist. If a boundary exists it does not have to be established. In our state the court got boxed into a corner by a law named boundary by acquiescence that describes a process provided in the law that involves two surveyors and a court decree when two owners have no agreement-implied or written and want to agree. This is kind of like the CA case. There is testimony in the CA case that the fence separated the cattle from the orchard. The purpose of a fence always is a consideration. Even in this state a pasture enclosure fence would not work for acquiescence even if the two owners used it as a boundary for years IF a survey could locate the line and they would go through the prescribed legal process. While the court says only they can establish a boundary they never hesitate to say an implied agreement exists if there is evidence that the only purpose of the fence has been to separate owners. We have a fence law that implies as much as well. So yes, know your courts and know you laws and apply that knowledge to the circumstances.
In the case at hand if the surveyor had applied the knowledge to the circumstances the first survey would have placed the line on the fence and the first description would have been adequate without change. The second survey could put a cloud on the title if the new description is taken forward to illegally reform the deed whereas the first survey upset the neighborhood due to incorrect boundary location. Maybe the third time will be the charm.
Judges can dream up any silly little thing they want and then declare it valid. They sometimes forget that making a decision involving only two property owners may put several others in a big pot of trouble. This is especially vexing when it involves section corners, quarter corners and aliquot parts.
Moving on to deed correction
Brian
This is one of the hardest concepts for surveyors (me included) to grasp. The standard practice here is to describe new measurements in a description format for every survey be it a new or existing boundary. Our survey law includes deed correction and it has become a standard practice that every deed must be corrected to the current measure in the survey desription.
Judges are lawyers. Most of them are a jack of all law, master of none. Surveyors are not without sin when it comes to dreaming something up that fits the inside of their box and declaring it valid. Surveyors should have the best handle on boundary law and how it applies to conditions in the filed.
What does the 1971 survey show?
Good question. The 1971 survey is not available. It would be interesting to see if it referenced the fence. All we know about it is the 2007 claims to have retraced it even though the 2007 irons were set, not found. If I were involved in this I would try to dig it up as well as run the transfer books back on both deeds to the original. There is an unofficial taxation plat in the area which the tax office makes when the deeds are hard to piece together. The deeds don't refer to the taxation plat however. There is something odd about that. I got all my information off the web. The area is a couple hours away. I just thought it was an interesting topic to me anyway.
Huh?
"Neither one can claim or survey anything other than the existing boundary."
Sure they can. Why would you think otherwise?
Huh?
Point being there is only one legal boundary that can be legally claimed.
California is an oddity.
Our Supreme Court in its infinite wisdom has raised the burden of proof to a point where it's almost unreachable in order to prove the common law doctrines of Implied BLAs and Acquiescence (rolled into one doctrine in California). Those doctrines would be more useful in the case of long standing use of a physical boundary where no one knows why it is that way but it is what it is. Unfortunately the burden of proof is so high that you would have to have first hand testimony from living witnesses that meet all of the criteria which means the agreement would probably have to be relatively recent.
I'm surprised they even tried to use it in the case Jim cites; it's just a waste of time and money. It would be cheaper to pay some money and do a boundary line adjustment or surrender the few rows of orchard trees.