In Saunders v. Polich, 250 Cal.App.2d 136 (1967), 58 Cal.Rptr. 198, the Appellate Court didn't like either the fence or surveyed boundary. In the first half of the opinion they shoot the fence full of holes, it was never built to be a boundary being built before the boundary in question was created and for various other reasons but mainly because the parties never discussed it as the boundary much less agreeing to it.
On the other hand, the Survey was based on a Freeway survey and there was no apparent connection to the original GLO official survey. As Lawyers and Judges often are, they are somewhat obsessed with where the Surveyor started his Survey, being a Division of HIghways position for a government corner. I'm sure they have a lot wrong about the Survey. They rejected the Survey as being insufficient as a question of law which is not typical in more recent times; Courts usually review a Survey's correctness as a question of fact in California.
Saunders liked the Survey and Polich liked the fence. The trial court ruled for the Survey. Polich lost, appealed and achieved a reversal which just means the Appellate Court sent everyone back to square one.
The Appeals Court Justice doesn't like either the Survey or the Fence and he drops back and punts the case back down to the Trial level reversing the trial court Judgment.
I haven't read the case yet. In remanding the case, did the Appellate Court direct the trial court to look more closely at the circumstances when the boundary was created and/or to look more closely at facts regarding the fence in relation to the creation of the boundary? And, had the trial court dismissed the idea of the fence marking the boundary without having given the possibility much consideration in the first place?
Usually when an appellate court remands a case without giving a fairly clear idea of what the outcome should be, it's because the trial court failed to give adequate consideration to one or more pertinent facts that could have affected the outcome had they been properly considered. And lacking discussion of such consideration by the trial court, the appellate court lacks sufficient facts to determine if the application of boundary principles was correct or not.
eapls2708, post: 380462, member: 589 wrote: I haven't read the case yet. In remanding the case, did the Appellate Court direct the trial court to look more closely at the circumstances when the boundary was created and/or to look more closely at facts regarding the fence in relation to the creation of the boundary? And, had the trial court dismissed the idea of the fence marking the boundary without having given the possibility much consideration in the first place?
Usually when an appellate court remands a case without giving a fairly clear idea of what the outcome should be, it's because the trial court failed to give adequate consideration to one or more pertinent facts that could have affected the outcome had they been properly considered. And lacking discussion of such consideration by the trial court, the appellate court lacks sufficient facts to determine if the application of boundary principles was correct or not.
It is just a reverse, not a remand. If the parties couldn't settle their dispute at that point then a new trial would be required presumably with a better Survey (or maybe just a better explained Survey).
The case comes up under West's 59 Boundaries, key 1 General rules of construction.
"In the absence of [evidence tying present survey to original section corner], we are of the opinion the Kenyon survey was insufficient as a matter of law, and the judgment must, in consequence, be reversed.
We expressed no opinion as to the applicability of the agreed on "acquiesced in" boundary doctrine for the evidence and record are not clear as to the exact location of the various fence lines constituting the purported agreed boundary in relation to any properly evidenced starting point. (See Hannah v. Pogue, 23 Cal.2d 849, 857 [147 P.2d 572]; de Escobar v. Isom, supra, 112 Cal.App.2d 172, 173.)
The judgment is reversed."
In essence, the appellate court acknowledged that there was a valid dispute, declared the trial court solution to be wrong but also said that they didn't know what they correct solution was. They hinted that there wasn't enough evidence presented to support the fence(s) as the original, agreed, or acquiesced in boundary, but declined to direct the trial court to seek & consider more evidence to answer those possibilities.
Instead they reversed, not to Polich's position but to... no decision at all and no direction to the lower court to look further for the correct solution. I don't think I've seen that before. That result makes the whole exercise of having gone to court a colossal waste of time and $ for both parties. The only ones who got anything at all out of it were the lawyers.
The Appellate Court summed up thusly:
"The foregoing evidence discloses the surveyor, despite his professional opinion to the contrary, at best commenced his survey at a point established by the Department of Highways, which point was purportedly the quarter-section corner. But it is the federal government survey which is conclusive ( Verdi Development Co. v. Dono-Han Mining Co., 141 Cal.App.2d 149, 152-153 [296 P.2d 429]; Reid v. Dunn, 201 Cal.App.2d 612, 615 [20 Cal.Rptr. 273]) and in the absence of a comparison of the Department of Highways' field notes to those of the official survey, or some other survey actually "retracing the steps" of the official survey, we are of the opinion the Kenyon survey was insufficient as a matter of law, and the judgment must, in consequence, be reversed.
We expressed no opinion as to the applicability of the agreed on "acquiesced in" boundary doctrine for the evidence and record are not clear as to the exact location of the various fence lines constituting the purported agreed boundary in relation to any properly evidenced starting point. (See Hannah v. Pogue, 23 Cal.2d 849, 857 [147 P.2d 572]; de Escobar v. Isom, supra, 112 Cal.App.2d 172, 173.)
The judgment is reversed."
Quite a scathing judgment of the surveyor and the procedure followed at trial.
I wouldn't judge a survey or surveyor based on an Appellate Court's writing. Get the actual Survey they are talking about, often they are mistaken even on major points.
The game of telephone possibilities are enhanced in this case because they had to glean the facts from the record there being no statement of facts in the Appelant's brief as required by the rules of Court.
They seem to think wherever the Surveyor happened to start is given the most weight by the Surveyor. In modern Surveying practice wherever the Surveyor started is usually dictated by convenience having nothing to do with the final answer.
They are correct about the principle that a later Survey should have some connection to the original survey but I wouldn't count on them being correct about the facts.
The other thing I have noticed about these cases, is it seems what is happening on the ground today is the opposite of what the Court ruled. Ernie is one of the few that looks like the Supreme Court ruling, the Court entered Judgment in that case which is unusual here.
Dave Karoly, post: 380445, member: 94 wrote: In Saunders v. Polich, 250 Cal.App.2d 136 (1967), 58 Cal.Rptr. 198, the Appellate Court didn't like either the fence or surveyed boundary. In the first half of the opinion they shoot the fence full of holes, it was never built to be a boundary being built before the boundary in question was created and for various other reasons but mainly because the parties never discussed it as the boundary much less agreeing to it.
On the other hand, the Survey was based on a Freeway survey and there was no apparent connection to the original GLO official survey. As Lawyers and Judges often are, they are somewhat obsessed with where the Surveyor started his Survey, being a Division of HIghways position for a government corner. I'm sure they have a lot wrong about the Survey. They rejected the Survey as being insufficient as a question of law which is not typical in more recent times; Courts usually review a Survey's correctness as a question of fact in California.
Saunders liked the Survey and Polich liked the fence. The trial court ruled for the Survey. Polich lost, appealed and achieved a reversal which just means the Appellate Court sent everyone back to square one.
The Appeals Court Justice doesn't like either the Survey or the Fence and he drops back and punts the case back down to the Trial level reversing the trial court Judgment.
What they reversed was denial of motion for a new trial. They agree with the trial court that under the facts from the record the deed descriptions must control, but say the location has yet to be determined because the survey presented fails. Both sides might now have another chance. The one to produce a proper retracement survey, the other to produce a clear location by survey of the fence they are claiming to. But the trial court probably told the parties they would not change their decision, so produce a proper survey and that will be the line. I doubt you would find a court case following this decision, but there may have been a court order of some kind. You might find a survey filed shortly after this decision that shows a proper retracement. Might even show the same lines as the survey presented at trial, but with some added notes of ties to gov. corners.
I'd really like to have a look at this survey which the court is commenting on.
