Thank you Dave for your recent legal posts. They sure have been an asset to the board by the dialogue that has ensued.
I have followed them all.
There seems to be a trend of opinion here that surveyors should set aside their field boots and slip into some nice comfortable non-liability slippers.
Thanks again..
You're welcome.
I thought this thread might get 5 replies before it disappeared off of the page. I'm surprised at how much interest there is in these issues.
To establish a line by agreement most statutes require a dispute or uncertainty to the line. Your premise seems to indicate that there is no dispute and the line is objectively certain. Is it certain to them? If so, I doubt the new line would bind third parties and the boundary line would remain as it was. If they do not know where the line is and attempt to fix it where they believe the true line is, then they in effect are not passing title, only establishing the limits of it. just my 2 cents, most of which comes from my recollection of Skelton's chapter on Establishment. I doubt most lenders would get involved as JBS indicates, it really is of little benefit to them, however I do believe future owners would likely sue to reestablish the true line if the new line somehow made a parcel incapable of being developed.
> McLain had strung the stringline and they built the fence. Later it was found that the original lot line was on Kirkegaard's side of the fence. Kirkegaard sued McLain and won. McLain appealed and the Appellate Court affirmed the judgment ruling the Agreed Boundary Doctrine applies.
I wonder if the court would have ruled differently had Kirkegaard run the stringline. It seems as though they were saying to McLain, "Well, dummy, you grabbed the wrong monument and strung the line, then your neighbor built his improvements to that line, so you're out of luck." Had Kirkegaard run the string and gotten sued by McLain, the court might have viewed the whole thing in a different light.
It's these kind of details that make it unwise to generalize a rule from single court case.
Yes, there is an element of estoppel in this particular decision.
I posted two unpublished cases last week to show the contrast between two cases that appeared similar to me but they went in opposite directions. They involved subjective uncertainty, like this one. I have read a lot of these cases and they tend to be very subtle, turning on a razor's edge.
One of the biggest factors I have noticed is, was it mutual? There are more than a few cases where they held to the record line because only one side was uncertain and established the fence. The other side wasn't barred from asserting their rights to the record line because they made no affirmative statements as to whether they accepted the fence line as the boundary. It takes both owners to establish a boundary like this.
If there is objective uncertainty present then that is a little less difficult to justify it seems to me.
One big thing I see in Kirkegaard is the Appellate Court is seeing whether or not the Agreed Boundary Doctrine applies is a question of fact, that is why they don't overturn the Superior Court Judgment. Experts in California are allowed to testify to the ultimate issue under Evidence Code Section 805. According to Deerings Annotated Code for this Section this only applies to questions of fact but not questions of law which is for the Judge to instruct the Jury. Since the Appellate Court views this as a question of fact it is my opinion that a Boundary Expert could testify as to whether or not the Doctrine applies.
John Briscoe, a well known and respected California Real Property Attorney, says in his book, Surveying the Courtroom, that Land Surveyors and other Natural Resources Experts have to apply the law in their opinions, it is impossible to have an opinion otherwise.