Kent
:good:
The measuring abilities of some clearly are better than others, but control surveys are not necessary in the determination of land boundaries.
Some refuse to believe that a line between existing senior corners is actually bendable and comments on this thread and the one on 1/16th corners, show a belief in the bogus theory of using ONLY the protracted dashed lines as evidence of boundaries. Apparently, some really believe that only government surveyors can establish those protracted lines on the ground!
Keith
Kent
> I am not convinced that it is a viable practice model on a large scale to expect Land Surveyors to chase down the evidence leading to a subjective end. I understand that is the law in most States but it doesn't make for a very efficient practice model.
More to the point, I'd say that dealing with verbal agreements which supposedly serve some equitable purpose places a distinctly inequitable burden on all future landowners as over time it takes more and more effort just to figure out why the scrambled-up situation exists that was originally created over backyard beers on a Saturday afternoon.
> If we could just get Land Surveyors to recognize objective uncertainty and make the correct choices there then that would be a huge improvement.
I do agree that objective uncertainty is where the real action is or should be.
Kent
>If you took the time to read the case attached to my handout ...
I was relying upon the Utah Supreme Court to set out what they thought to be the pertinent facts upon which they decided Bahr v. Imus. It seems obvious to me that the court thought the two surveyors had arrived at different lines or that their work was somehow unreliable, otherwise why mention the different fence ties?
> The FACT is that agreements have no effect on TITLE, therefore, they have no effect on "lienholders and all innocent purchasers."
Well, apparently you aren't aware that boundary agreements are specifically barred by the language of many deeds of trust. A boundary agreement that is made by a person without the agreement of the lienholder is simply erased by a foreclosure.
> >So, if you're going to spend tens of thousands ...
>
> The landowner, had they hired a surveyor who would provide a competent survey in accordance with the law, would have suggested they record their oral agreement which would have cost them around $400 for the preparation and recording.
Well, none of the surveyors I know work for $6.00 per hour. The amount of screwing around that investigating the history of the fence, talking to the various effected landowners and their mortgage lenders, their attorneys, extending the mapping to show all of the affected parcels, preparing a description for a boundary agreement, and turning it all over the the attorneys to draft the agreement would typically have a price tag in the multiple thousands at ordinary professional rates. That is one helluva lot more than it would cost just to rebuild most privacy fences. So where is the great professional accomplishment?
Dave
"I am not convinced that it is a viable practice model on a large scale to expect Land Surveyors to chase down the evidence leading to a subjective end. I understand that is the law in most States but it doesn't make for a very efficient practice model. 1/10th of 1% seem to have a grasp of these issues. To do this efficiently on a large scale would take a different professional culture and a different education scheme (which is mostly Engineering oriented)."
There may be some truth in this but it comes from surveyors that don't want to step up to the task. Surveyors realize there is some liability to what they do and then go about trying to make their serious business liability proof by taking a position that they can't be expected to know and apply the law.
With such an attitude towards the law surveyors should just be eliminated from doing boundary work. How can a group with the responsibility of knowing the law go forth with an attitude that the law is just to difficult to understand and apply to make it part of their practice. Talk about self delusion.
It's time for surveyors to step up and provide the service needed by society. Access to the law has never been easier and the law should be learned and applied by surveyors. If surveyors can't or refuse to do this they should be retired and the task given to another group that will. A clean break may be the only solution. Why should the work be given to a group that goes out of the way to shirk their responsibility?
Kent
> Leave the boundaries to surveyors who are willing to make a good-faith effort to apply the rules which govern their profession.
Well, the whole point is that in a well surveyed area where boundaries are objectively certain, the landowners who want to create messes with verbal agreements need to be discouraged, not encouraged.
My idea, based upon what I've read from Utah posters, is that very little of Utah is objectively certain, so it makes sense that you'd want to show up with boundary agreement forms to try to make all of the fences the record boundaries. My point was that if that's what in Utah is to be the standard practice, when a landowner calls wanting to have a survey made of a property with a fence in place, the obvious question would be "why?"
Kent
It really comes down to the fact that unless a fence is precisely on the expertly measured deed line, it will never be considered the boundary!
It does make land surveying easier; you don't have to make any judgements in where the boundary is.
Keith
Kent
There is some truth to what you say. The boundaries are and have been established for decades (according to long settled law). So it's best to keep the surveyors away. If a surveyor like you shows up one thing a great many Utah landowners know is there will be hell to pay. They either bend over or they spend thousands to get their boundary back to where is has been established for a long time. Boundaries should be under the control of landowners and not surveyors. A surveyor should locate the established boundary, not lay down a new one just because they are unwilling to do the work and collect the evidence to make a proper determination according to law. And yes it shouldn't be necessary to survey established boundaries to determine their location which in many cases is in plain sight. It may me good to measure them so that the proper location can be shown in the GIS and other maps so the public isn't mislead about the boundary location.
Kent
Strictly speaking, the Agreed Boundary Doctrine is a legal, not equitable, Doctrine.
It holds property owners to agreements they have made although it is detrimental to what they could have gotten. That tends to be inequitable. The theory is a person is free to give up their rights.
Dave
I hear what you are saying there. Is it likely to occur without a sea change in education, experience and licensing procedures?
Land Surveyors could lead the way to a better system which would be cost efficient but we would have to take the lead in boundary matters. Most of the published advice over the past 50 years or so has been to leave it to the Lawyers. The Lawyers can make a mash of anything.
If property purchasers would simply have some curiosity about the state of the boundaries of the property they propose to purchase then a lot more surveying would take place and the result would be surveys being less difficult and therefore less costly. What we have now is very little surveying in old neighborhoods so when someone calls a surveyor with the appliance repairman service call cost in mind and they get the sky high cost estimate well they just solve their problems in other ways. In some States the profession responds by providing Surveys which are not boundary surveys but everyone thinks they are boundary surveys. It's a mess.
The best thing any property owner could do is not plant a Russian Olive tree in their backyard close to the fence.
Kent
> Strictly speaking, the Agreed Boundary Doctrine is a legal, not equitable, Doctrine.
>
> It holds property owners to agreements they have made although it is detrimental to what they could have gotten. That tends to be inequitable. The theory is a person is free to give up their rights.
That runs contrary to my understanding of the reason why verbal boundary agreements are recognized in the Common Law. Isn't the better reason that the law places a high value in boundaries being fixed and determined? That is essentially an equitable value and so it strikes me as abundantly relevant to point out that when verbal boundary agreements do not operate on a practical level to fix or determine anything, then the basis for the law to value them and to uphold them against third parties is lost.
Kent
I think the reason behind the Doctrines is a public policy thing, not an equity thing.
It is good public policy to promote stability of boundaries and discourage litigation. The California Courts in Mesnick, Armitage and Bryant questioned whether the Agreed Boundary Doctrine when applied with only the evidence of a fence promote the public policy goal of stability in boundaries. They did leave the door open for when an actual agreement can be proved despite objective certainty and I see this Utah case probably would've been decided the same way at least in Northern California.
Utah has a separate long term acquiescence doctrine which can be invoked when evidence of agreements have disappeared with the people that made them. At that point the prospective purchaser only has actual notice of whatever structure they are looking at. California has combined doctrines (since the 19th century-this is not new) but in the decades prior to 1994 they operated the doctrine a little more broadly; the agreement, for example, the agreement could be inferred. It was considered fictional because after all acquiescence is a sort of agreement, just not expressed.
What was done in 1994 was flip the burden of proof pancake over in the frying pan. Prior to 1994 evidence of no agreement was needed (Dooley's Hardware Mart v. Trigg, 03/03/1969, 270 Cal. App. 2d 337 is an example) and after 1994 evidence of the agreement is now needed.
Kent
> I think the reason behind the Doctrines is a public policy thing, not an equity thing.
In what way do you think equity and public policy are that distinguishable? Both are essentially informal ideas of what is proper. The ideas that underlie many principles of equity are also the basis of sound public policy.
Kent
Some of these cases are downright comical:
"Mrs. Kirkegaard testified that McLain strung the cord; that she and her husband looked at the contemplated dividing line; that McLain asked "Is this all right with you?" and "we said 'yes'"; that she did say her friends suggested a survey, but McLain wanted the fence started right away, so it seemed silly to go to that expense." -from Kirkegaard v. McLain, 199 Cal. App. 2d 484 (1962).
I guess it wasn't silly to pursue the lawsuit all the way to the Court of Appeals, Fourth District. This is a fence line/boundary line dispute in Fresno in an apparent suburban neighborhood. Eventually the fence won.
Kent
> Some of these cases are downright comical:
>
> "Mrs. Kirkegaard testified that McLain strung the cord; that she and her husband looked at the contemplated dividing line; that McLain asked "Is this all right with you?" and "we said 'yes'"; that she did say her friends suggested a survey, but McLain wanted the fence started right away, so it seemed silly to go to that expense."
Yes, it would have been a waste of money to have an actual survey made when pulling a stringline is just as good for all practical purposes, even if an architect is not involved. We all know that equity favors the avoidance of waste. :>
> The background is I am studying California case law to attempt to determine if California requires objective uncertainty or subjective uncertainty in Agreed Boundary cases (among other things-this is just one question). Truthfully it appears to me that both are true (it sounds crazy but California is a large State with a lot of case law). I have found cases on both sides of the question such as the two unpublished cases I posted earlier this week. The Marin County case is pretty clearly a subjective uncertainty case; the Orange County case appears to be an objective uncertainty case (e.g. they weren't objectively uncertain).
>
> Granted a close examination of the cases will reveal other reasons for finding for the Agreed Boundary Doctrine or not so the question of uncertainty could be unclear or not the real reason. It can be subtle.
From your posts, I know you to be a pretty sharp fellow Dave.
So, if you have found that there can be two answers to one question based on prior cases and that those two answers might change based on very subtle changes to the exact circumstances (even so subtle as the location within the same state):
Why would any surveyor think that they had the authority or knowledge to decide what the law says (not what their opinion says) and then impose that opinion on the property owner as settled by law because of the surveyor's great authority and knowledge of 'the law'?
As Jud pointed out in an earlier post, as long as there is full communication with the client - great, the surveyor can help get the record and field aligned to match. That communication needs to include full disclosure. So if there is a record document that places the line in another location than occupation, disclose it - don't just assume the authority to move it based on an interpretation of a case or two that comes to mind. Part of the communication should certainly be explaining what case law was used to derive the opinion. Perhaps that explanation will suffice to get things resolved, perhaps not.
Kent
As far as I can tell Equity is a body of law which originated in the Chancery Courts in England and was continued in the U.S. system. Most States no longer have separate Courts of Equity as they used to.
So-called "law" is really the Common Law which originated in the Common Courts of England. The Chancery Courts (Equity) superseded Statute and Common Law in their extraordinary jurisdiction.
The definition of Equity to the layperson is it is natural law but in the legal usage it is a body of law which has been developed by the Courts over time the same as the Common Law. Equity was originally inspired by notions of fairness and justice.
Public policy is a justification Appellate Courts use to justify their decisions. Public policy disfavors things which harm the public as a whole.
They don't appear to be synonymous but then I'm not a legal expert either. Equity is a body of law and public policy is a justification for a rule of law being developed.
Kent
> Public policy is a justification Appellate Courts use to justify their decisions. Public policy disfavors things which harm the public as a whole.
>
> They don't appear to be synonymous but then I'm not a legal expert either. Equity is a body of law and public policy is a justification for a rule of law being developed.
Well, the principles that I see in equity such as:
- unjust enrichment (as in the case of a person who stands to benefit from having misled another) and
- avoidance of waste (which covers a broad spectrum from avoiding needless litigation costs when matters may be resolved by technical means, to weighing the value of improvements mistakenly located)
are also public policy considerations.
They are known as "equitable" simply because they have never been codified into law and so exist as principles of natural justice, both in public policy and in the decisions of courts.
If you want to approach any boundary dispute from the standpoint of equity, don't the natural criteria include:
- cost of remedies vs. cost of maintaining status quo,
- who benefits and who loses, and
- what is the course of action that in the long run costs the least to all of the parties concerned?
Dave, you may well be correct. In fact, the same case may lose in the same court in northern california tomorrow. The CA courts are analyzing things the same way in the north and south though. But the results turn on credibility of testimony and could go either way on any particular day in any particular court room. And I don't see CA much different than other jurisdictions. That's why I generally agree with the position of Knud Hermanson that surveyors changing a map to agree with possession lines is somewhat ridiculous. The outcome is just too uncertain.
Your post: ". . changing a map to agree with possession lines is somewhat ridiculous.. . " is an odd way of describing land surveying?
It would seem to me that; Land surveying is locating the boundaries on the ground that the landowners have established.
In other words, those dashed lines on the PLSS plat represents a plan and the lines on the ground represent ownership.
The bogus theory is here, and easy to find out which one!
Not at all Keith. What we are talking about is rejecting lines the landowners have established in favor of lines that subsequent landowners have tried to establish outside the system or in secrecy from any other parties that may be affected.
This is not an analogy to dashed or protracted lines on a map. Rather, it would be like rejecting all the monuments BLM ever set in favor of wherever the adjoiners claim they agreed to today, or tomorrow, or yesterday, and they are free to change their minds on what they just said at any moment. There is no possible way to survey that. One must go to the courts to find out where the boundary is located under those circumstances. And, that court decision is no good a day after it is given because the landowners could go home and establish a different line that night.
