Here is a 98 year old law review discussion of the principle of repose.
1916 California Law Review on Repose
Seems to me that as far as boundaries goes we've lost a lot of sense in the last 100 years. The struggle between paper boundaries and physical boundaries goes on.
Also a good article in the latest American Surveyor by Chad & Linda Erickson. I got to meet these folks.
I seems to me common sense died sometime in the last 50 years or so.
I found this discussion about ascertainment of the paper boundary and the physical boundary amusing. We been having this argument on these boards for years (fixing it to how it should have been vs. how is has been for decades)
The authorities seem also to establish that there is no force in the argument that the mistake attributes negligence in not having a survey. Beside assuming that a new survey is always a correct one, such argument overlooks that therein both parties are equally in the wrong (if it were a wrong). Thus, while a case in the District Court of Appeal introduces this as an argument against the encroacher, the failure to survey is as positively ruled in a frequently cited case in the Supreme Court as an argument against the party encroached upon. And cases in the Supreme Court have ruled that it is not material that "according to the calls of Mrs. Ashley's deed there could be no question of the true location of the dividing line; that, as claimed by counsel for appellant, it was and is capable of ready ascertainment and location, and that whether the position of the paper line is "ascertainable" or not is an immaterial matter. Any argument upon means of finding out is equally applicable to both sides and neutralizes itself.
LR,
Thanks for posting the article.
Stephen
There is a companion article in the same issue of the California law review written by a Los Angeles Attorney which takes more or less the opposite view.
The Money Quote
And here from page 310 is the money quote since the whole question is one of equity.
"What the improvements must be is a similar question of fact in each case. The example of widest application, interesting every owner in the state is where a building has been erected along a particular line and acquiesced in. Lesser conditions are but a question of descending degree; such as a permanent costly stone wall (not a whole house); planting and cultivating the overlap; only a hedge or row of trees; a mere wooden fence; or just a row of stakes. These depend upon the circumstances in the discretion of the court or jury, as a question of fact whether a substantial change of conditions has occurred that cannot be set aside without substantial injury."
Can you post a link Dave?
Beginning at page 179 of the link.
I skimmed it a little and it may be inaccurate to say it's opposite.
Thanks Dave! Let me know if you ever get down to SLO again.
The explanation and justification for Repose starts on Page 299
Here is a bit of it:
Variation from paper descriptions is incessant from inaccuracy of early surveys, mediocre or poor work in recent surveys (a feature common to a large percentage of all work) changes of position of monuments, which changes are often unknown, variations due to different makes of surveying instruments, earthquakes (sometimes -it twisted numerous streets a foot or .more out of place in San Francisco) and all the other 'contingencies which prevent any work of man from being absolute. This liability to variation from the paper title is vastly more common in boundary lines than in other like matters.
"Experience shows that such measurements, made at different times by different persons with different instruments, will usually vary somewhat. The position of the object or monument at which the course begins may also be changed and the change may but be known to the parties, or there may be no means of ascertaining its original position. If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable." Mr. Justice Shaw in Young v. Blakeman (1908), 153 Cal. 481, 95 Pac. 888.
Likewise, "No absolutely accurate survey ever was or ever will be made. In order to build cities and towns there must be some finality as to the location of blocks and streets. Under such an ordinance, if valid, there could be none. All lines would be forever subject to be revised and corrected, or changed by new surveys not really more accurate, but only for the time deemed so." Orefia v. City of Santa Barbara (1891), 91 Cal. 630, 28 Pac. 268.
And again: "The inaccuracy of the early surveys in California, as well as in other states, is a matter of such common knowledge that the courts are warranted in taking judicial cognizance of the existence of such inaccuracy, as they frequently have done." Hellman v. City of Los Angeles (1899), 125 Cal. 387, 58 Pac. 10.
And still again: "That they (government surveys) abound in mistakes is notorious, and is evidenced by the reported decisions of nearly every State save the original thirteen. Nor are the ordinary surveys quite infallible. Their successive surveys nearly always disagree. This, aside from frequent carelessness or incompetency, is inevitable, from the variations of the needle, and slight differences in measurement over uneven ground." Miller v. Mills County (1900), 111 Iowa, 654, 82 N. W. 1038.
Actually, you may be overlooking the whole point of the Law Review article that you've posted, which has to do with the "built-up" boundary, i.e. a line that buildings and other substantial improvements have been located up to. The main context appears to be parts of cities where commercial buildings were designed to fill entire lots.
The article is specifically intended as a response to the March, 1916 article to which Dave Karoly provides a link above. In that light, the author's thesis is really that it can be wasteful (and therefore contrary to equity) to want to locate boundaries by survey if there are valuable improvements in place. For example, consider the following statements by the author (plagiarizing Justice Cooley, it would appear):
"If the line as built were subject to correction on new surveys, the confusion of lines and titles would cause consternation. Indeed, the mischiefs that must follow any depreciation of boundary lines as marked by the buildings themselves would be such as to make the visitation of the surveyor a great public calamity"
In other words, the author is basically arguing that it will be impossible to determine land boundaries with any accuracy, so once some workmen have constructed a building, that building should be regarded as proper evidence of the true boundary, regardless of where the building actually got built. It would be inconvenient for the owner of the building not to be allowed to casually trespass on the property of the adjoining landowner, after all. This is in effect the argument that the author makes.
He cannot overcome the obvious objections to the construction of improvements by one landowner as fixing a line simply because the adjoining landowner did not object at the time the workmen were building the improvements. So, the author argues: well, it will depend upon the nature of the improvements that were built to some line, and that is for a judge and jury to decide whether a disproportionate and unjust injury would follow were the improvements to be found not to exactly mark the boundary. In other words, the essence of his argument is the equitable one of avoiding waste.
However, if the result produced can be shown to be inequitable in some other way (there are winners and losers when you start jacking boundaries around in the typical urban subdivision), then the supposed equity in favor of the status quo evaporates.
This is why the author's argument distills to one of expecting a judge and jury to weigh the overall costs and benefits, which include in particular the value of the improvements. A wall of a valuable commercial building is a different sort of a situation in the author's view than some inexpensive agricultural fence that will eventually be rebuilt anyway.
've read both articles. I don't need your interpretation. You are welcome to take whatever you think from them.
There is a body of law other than they surveyed it in 1830, I think I found the line and are going to tweak every 40 plus year old marker in between the 15 mile spaced markers to the nearest millimeter. I expect you'd do that through the middle of Austin. I wouldn't, what else is new?
> 've read both articles. I don't need your interpretation. You are welcome to take whatever you think from them.
Well, particularly the article you linked makes a specific case for what the author calls the "built-up" boundary, where valuable buildings have been built up to a line, and makes the argument that it would be wasteful and burdensome not to consider the buildings to mark the true boundaries. That argument is one of equity with limits, some of which the author himself set out as I noted above.
There certainly is a time and place for repose. They seemed to have a better understanding of it in 1909 than in 2013.
43 USC 772
The Secretary of the Interior may, as of March 3, 1909, in his discretion cause to be made, as he may deem wise under the rectangular system on that date provided by law, such resurveys or retracements of the surveys of public lands as, after full investigation, he may deem essential to properly mark the boundaries of the public lands remaining undisposed of: Provided, That no such resurvey or retracement shall be so executed as to impair the bona fide rights or claims of any claimant, entryman, or owner of lands affected by such resurvey or retracement.
H. R. 862
IN THE SENATE OF THE UNITED STATES
June 18, 2013
Received; read twice and referred to the Committee on Energy and Natural Resources
AN ACT
To authorize the conveyance of two small parcels of land within the boundaries of the Coconino National Forest containing private improvements that were developed based upon the reliance of the landowners in an erroneous survey conducted in May 1960.
Both of them are talking about the tension between Deed boundaries and their physically implemented location. At that time the agreement existed by operation of law, sort of a legal fiction. That has changed to where today the agreement is an actual contract agreement and has to be proven to exist or can be inferred under certain circumstances but it is considered to be an actual agreement.
> Both of them are talking about the tension between Deed boundaries and their physically implemented location.
Although in the context of 1916 in urban Los Angeles and San Francisco, the whole discussion is much different than in rural areas where no improvements of any great value are at issue. One can hardly reasonably claim that the owner of an urban lot built a commercial building of a size that would cover his entire lot merely in some momentarily convenient spot, expecting to move the building if a correct survey were ever made.
Dave, that's about how I see it, at least in California (from my limited knowledge of California law). Utah law is a bit different. After 20 or more years of a physically existent boundary, the agreement or contract doesn't need to be proven, the time infers it. If adjoining landowners treat a physical boundary like a boundary it can become a boundary, uncertainty or dispute or proof of an agreement is not a requirement after a long period of time, the principle of repose has a much higher standing.
I posted the link to the article because from my viewpoint it gives a very good explanation of the principle of repose in the boundary setting. For those that are interested in learning I see it as value, ten years ago I didn't have a clue what it meant. I'm still learning.
Therein lies the difference between the common law and how the BLM seems to either follow or ignore it. With the BLM, what seems to be the determining factor is which fiduciary interest it represents as to whether they follow the law or not.
Your mileage may vary depending upon which state BLM office you are subjected to.
