BOUNDARY LITIGATION IN CALIFORNIA, 11 Stan. L. Rev. 720, 722
Even prior to codification of the elements of adverse possession, including the tax requirement, the notion had been introduced into California property law that certain acts of adjoining landowners would be sufficient to transform a fixed but erroneous boundary into one recognized by law.
Potts v. Potts, 2016 Ark. App. 127 (CV-15-413)
Dissenting Opinion on the Denial of Rehearing, Kenneth S. Hixson, Judge
ÛÏThe appellate court is the guardian of fair play. We are somewhat insulated, and sometimes isolated, from the discord and cacophony of the trial court. We do not have the luxury of an NFL replay official where he simply sticks his head under a black hood and reviews a video replay of the actual play under review. Ours is generally a world of black and white emanating solely from the printed page. Sometimes that insulation is a detriment such as where we attempt to interpret the demeanor or credibility of a witness or the behavior or intent of parties or attorneys. But, sometimes that insulation is beneficial in that we can take a fresh, unadulterated look at the proceedings below without bias, prejudice, or emotion. We donÛªt make the rules; we simply review what happened below to ensure the rules were followed. When rules are not followed and the notions of fair play are offended, the appellate court should be compelled to act.Û
[hl]ÛÏSurveyor shall verify application of any principles discussed herein by comparison to current statutory and common law prior to application to specific circumstances.Û[/hl]
DDSM:beer:
California has two lines of cases on the mistake issue. The prescriptive line holds that the establishment doctrines only come into use when there is a mistake so to limit them to cases that don't involve a mistake would make the doctrines absolutely unenforceable. The agreement is essentially fictional like sometimes adverse possession is thought to be based in a lost grant. The other line of cases holds that the parties were only trying to mark the true line so in the case of a mutual mistake the true line can be claimed. The second line operates the doctrine more in contract so that evidence of mutual uncertainty and mutual agreement is required.