Martin vs Van Bergen (CA)

from the case:

Bryant requires "deference to the
sanctity of true and accurate legal descriptions . . . ."

So in Kali you are just about home. As soon as the earth physically squares up everything will be peachy. I wish all our descriptions where true and accurate but seems that is not the case. Unbelievable that a PLSS state subdivided on paper to the nth degree would have all true and accurate legal descriptions. Kali is truly in never-never land. Soon you will be like Texas. The upgrade to GIS should be easy, just plot the true and accurate description, no physical tuneup required.

So if a quarter section corner is wiped out (lost) and a proportioned one put back does all the boundaries in two sections change? Your judges must be smoking some of the that prime weed grown down there.

What a doofus of a court case. I got tired quickly reading about how important "forty pounds of almonds" were to the case. Any competent attorney would have piled on an adverse possession claim and mentioned some further concepts. The court would have been just as oblivious.

Dave, it's time to head up to Mount Diablo and break things down correctly.

California is a large and diverse state. This is only one case in a Southern County. Unfortunately it appears Van Bergen did not retain the proper expert testimony in this case.

I definitely think the Courts have been lead down the primrose path of surveyor perfection since Bryant.

Evan Page discusses the case more thoroughly on the California forum.

I agree, I think we can set up a GPS base station on Diablo and finally do the job right. I can't wait to tell everyone in the Cities of Modesto, Fresno and Bakersfield how much they have to move.

Seriously, I wouldn't bother wit A.P. in California due to the tax issue. It hasn't been very useful in these cases here.

It looks to me like the adjoining property owners undertook a bona fide effort to locate themselves jointly.

Does a practical location work in California? That would probably get over whether there was an agreement but would it pass the deference to a true and accurate legal description if it wasn't spot on the mathematical line from the all powerful true and accurate legal description?

The way we are going, some day soon someone writing a land description should be able to actually change the physical shape of the earth. The courts say so, so it must be true.

I'll be sitting in my house and feel an earthquake. Yup, they just recorded another true and accurate legal description. You do have a lot of earthquakes in California don't you?

Evan is for practical location on the California Forum thread...

http://clsaforum.californiasurveyors.org/showthread.php?t=4585

(scroll down the page)

Too bad Vaughan was dead at time of trial and Sanders was not doing anything by being there. I disagree on the fence being the best evidence; I think it looks like Vaughan had the best evidence of the original line, but there was no one to point that out. The bearing trees appear to agree within acceptable tolerances of original work. Under the facts presented, probably the best argument for the Almond farmers would be some kind of estoppel action.

The Death Knell Still Rings in Cali...

This message was posted by me in the CA discussion forum.

The death knell for implied agreements doctrine (acquiescence) continues to ring in California. The California courts have entrenched themselves into the merger of two ancient doctrines of law which are still alive and well in the vast majority of states. California has thankfully chosen to give this newly formed doctrine a new name: the "Agreed Boundary" doctrine.

Historically, there were two separate doctrines, Parol Agreement and Implied Agreement (really there were three if you include Written Agreements). In order for adjoining owners to enter into a Parol Agreement, the courts required that there be some "uncertainty or dispute" over the boundary location. The law could not allow the owners to simply "orally agree" to establish a boundary where they knew it did not exist. If they were certain of its location, they were required by the Statute of Frauds to create a new boundary in writing through a proper exchange of title. They could not simply agree that the boundary was located where they knew it wasn't.

The Parol Agreement doctrine, in its pristine sense, included four factors: 1) adjoining owners, 2) uncertainty or dispute over the boundary, 3) an oral agreement intended to establish the boundary location (thereby resolving the certainty or dispute), and 4) the physical construction of improvements intended to consummate the agreement. In general, the two owners, uncertain where their boundary is located, agree upon the location and erect an improvement in reliance upon the agreed location. One obvious thing missing from the parol agreement is "time." No period of "acquiescence" is required under the Parol Agreement doctrine. Once the terms of the parol agreement are fulfilled (they constructed the fence in accordance with their agreement), the agreement is enforceable (sans mutual mistake).

The problem with any Parol Agreement is obvious; the parties to the agreement will eventually remember the terms differently, forget it entirely or die. The passage of time is an enemy to all oral agreements. The Implied Agreement (Acquiescence) doctrine was designed to step in to resolve ancient lost or forgotten agreements. The doctrine required four things: 1) a common boundary between two adjoining properties, 2) an existing physical improvement, and 3) each adjoining owner mutually recognizes the improvement as marking the boundary by occupying their respective sides of the boundary, and 4) for a long period of time (typically 20 years based upon the rules of evidence, but often mistakenly related to the statute of limitations period defined by legislative statute).

Notice, there is no requirement under the Implied Agreement doctrine for any "uncertainty or dispute." The reason it is absent is because there is no way to "dig up the bones of the past," to "refresh faded memories" or to prove with any "reasonable certainty" that the owners entered into a parol agreement at some time in the distant past. Those memories are gone. They are proven, not by direct evidence of the agreement, but by the actions of the landowners over time. That's why we have the Implied Agreement doctrine.

The mutual actions of the landowners maintained over a long period of time becomes the indirect evidence necessary to "imply" that the owners have entered a mutual agreement without any direct evidence proving the agreement itself. We most often cannot even prove that an agreement ever happened or who the parties to the agreement were. We don't know who constructed the fence; why the fence was constructed where it is; what evidence was relied upon to determine the fence location; or, any other evidence that would show good-faith reliance upon the fence as marking the boundary. All the evidence we have is the subsequent mutual recognition and mutual acceptance of the fence as marking the boundary for a long period of time, which is all the evidence required under the doctrine of Implied Agreement (Acquiescence).

Such is no longer the case in California... Since the death knell was first struck (Bryant v Blevins), the California courts have effectively merged the two doctrines into a single "Agreed Boundary" doctrine. This new doctrine requires the "bones of the past" to be excavated, the parties to the agreement determined, and the state of knowledge regarding the "certainty or uncertainty" of the boundary location at the time of the agreement be excised from the remains. The rules of evidence require no such excavation beyond 20 years, yet this new doctrine would require such excavation of the evidence 50, 80 or perhaps beyond 100 years into the distant past to the time when the fence was first erected.

There is no room for repose in this newly merged doctrine. That which the law has formerly allowed to remain at rest are now required, under this new doctrine, to "clearly and convincingly" prove that "uncertainty or dispute" was present when the ancient fence was erected by unknown parties relying upon unknown evidence. The "Agreed Boundary" doctrine as now cited by California courts requires an "impossibility" under the law. Such an "impossibility" violates a centuries-old maxim of jurisprudence: "Nemo tenetur ad impossibile." No one is bound to an impossibility. Can anyone point to a single California case post Bryant v Blevins where this newly-formed doctrine of Agreed Boundary has been successfully argued and proven?

Evan is correct when he points to other doctrines which may still be intact in California. The doctrines of Practical Construction, Repose and Equitable Estoppel may be all that remain to allow boundaries, long-established, to stand unmolested by the whim of any surveyor reliant upon evidence which has faded with the boundary itself. The presumption of good-faith occupation made by the original settlers just might find a way to stand against the passage of time, subsequent "technically correct" surveys, and the California court system.

JBS

PS: For an excellent treatise on this "merging of doctrines" issue as it unfolded in Utah, read Halladay v. Cluff, 685 P. 2d 500 - Utah: Supreme Court 1984, followed by Staker v. Ainsworth, 785 P. 2d 417 - Utah: Supreme Court 1990. The Utah SC discovered the "error of their ways" and "turned the great ship." Another recent case which even more fully explains the differences and current application of the doctrines in Utah is found in Bahr v. Imus, 2009 UT App 155 - Utah: Court of Appeals 2009, and its subsequent appeal Bahr v. Imus, 250 P. 3d 56 - Utah: Supreme Court 2011. Copy of survey. According to the UTSC, where is the lot line between Lots 412 & 413?

The Death Knell Still Rings in Cali...

Thank you JB, for always putting so much time and effort into your posts, for the benefit of us all.:bye:

The Death Knell Still Rings in Cali...

I don't think Bryant combined the Doctrines, it did eliminate the inference of an agreement in certain circumstances. The Doctrines were combined at least as early as Ernie vs Trinity Lutheran Church (1959). Even the Ernie decision expressed some discomfort in a fence alone seeming to suggest something more is required such as buildings to infer the agreement but it did not require direct evidence of the agreement.

Stanley Mosk's dissent in Bryant is very helpful for understanding the majority's decision, the purpose of the doctrines and why he would uphold all of Ernie, not just some of it.

Mosk's dissent is about 2/3s of the way down:
http://law.justia.com/cases/california/cal4th/9/47.html

The Death Knell Still Rings in Cali...

That dissent by MOSK nails it! Too bad for Kali he wasn't able to convince the other judges at the time. Seems like the mess MOSK predicted has came true. More litigation - less stable boundaries. Everybody except the landowner's gets to place the boundary lines according to the almighty true and accurate legal description.

The Death Knell Still Rings in Cali...

The rejection that fences "imply acquiescence" goes back a lot further than B v B.

Try at least Clapp v. Churchill, supra, 164 Cal. (1913). and probably even earlier in Ca law.

The Death Knell Still Rings in Cali...

It is a fact question if the fence is evidence of the boundary which often the answer is no for various reasons.

Bryant was novel in that the agreement could no longer be inferred from long standing acquiescence and didn't have anything to do with fences per se. The Courts will never completely tie their own hands with respect to a whole class of physical evidence.

The Death Knell Still Rings in Cali...

Dave,
Have you read Clapp v Churchill? I ask because your tone seems to indicate familiarity, whereas your statement indicates a complete lack thereof.

The Death Knell Still Rings in Cali...

No, I was speaking in general. There are plenty of cases where the fence was held not to be the boundary usually for fact reasons such as the fence is obviously in a convenient alignment and obviously wasn't intended to be the boundary.

For example, in Ernie the boundary and fence coincide and that was 1959. There also was evidence that the fence in that case was built as a result of a Survey in the 1920s.

Old cases such as Clapp v. Churchill are not readily available on the internet for free. I did find some commentary on it in the California Law Review for 1915 and 1916. Apparently it is an Acquiescence case where the Court ruled that the acquiescence is evidence of an earlier agreement which would require uncertainty as to the location of the true boundary. Cases prior to Clapp (and even after, see Schwab vs Donovan) had ruled that the agreement was a legal fiction only and hence no uncertainty is required since the boundary is fixed by law, not by contract.

I can't get a valid link to the Google books result.

Here is some text from it:
"12. This doctrine of acquiescence, effective not by contract but by operation of law (expressly excepted out of the Statute of Frauds), resting upon public policy, and so frequently applied in California, is denied in the recent case of Clapp v. Churchill.78 The ground taken in this case is that acquiescence could be considered only as evidence of an earlier agreement; hence only where a formal agreement would have been valid; and a formal agreement fixing such line would not be valid unless both parties were shown to have believed the line uncertain.

Being tied to the position that the acquiescence cases rest upon an actual agreement, it is opposed by the numerous prior

cases based upon the ground that in the doctrine of repose the socalled agreement is a fiction only; that the implied agreement spoken of in the acquiescence cases is not a matter of contract more than the supposed grant in prescription. The presumed grant in prescription is well known not to be governed by contract, and if the test of an actual agreement stands as in Clapp v. Churchill, it would be proper to expect a ruling that the creation of prescriptive rights of way is within the Statute of Frauds, and see their validity tested by the law of contracts.

These views in Clapp v. Churchill appear to be obiter only, since there was no extensive lapse of time (only one year over five years) and note is taken in the opinion that there were no substantial improvements to be jeopardized. Although accepted in two decisions in the District Courts of Appeal80 neither the other department of the Supreme Court nor the court in bank has yet fully done so. In the other department Schwab v. Donovan,81 decided since Clapp v. Churchill, rules "that all the parties acted in the belief that the fence was in fact the boundary."8* If, as this therefore holds, the parties may in ignorance or mistake believe in the truth of their own location, it is a later ruling showing that Department One does not concede the ruling of Department Two.

The weight of California authority seems still to hold that built-up boundaries outweigh paper boundaries by operation of law springing out of public policy, in which "agreement" is but a fiction of the law, or, better still, is not involved.

"And these fictions of law, though at first they may startle the student, he will find upon further consideration to be highly beneficial and useful; . . . .its proper operation being to prevent a mischief, or remedy an inconvenience, that might result from the general rule of law."8* Recognized as a fiction the implied boundary agreement from acquiescence, lapse of time and changed conditions is beneficent; confounded with the reality,"