Sometimes fences are just fences; not boundaries.
I would assume that fences will never reach the accuracy level of today's machines!
Did you read Stanley Mosk's dissent? He is so revered in California there is a statue of him in front of the courts building in Sacramento.
BvB is an agreed boundary case. It essentially says an implied agreement can't be inferred from the mere fact of a fence, more evidence is needed.
I personally feel the case was mishandled by everyone from the beginning and the fence was probably best evidence of the original boundary between the parcels. That area of southern Sacramento County is mostly a self fulfilling prophesy survey wise and the Justices in this case are very naive about the reliability of old deed records as to boundary location. Not that I blame them, the surveying profession led them down the primrose path in that regard.
I think the Appellate Court got it right and the Supremes should've stayed out of it. They had a perfectly good precedent in Ernie vs Trinity Lutheran Church which is based in the reality of common sense boundaries.
I have the Record of Survey.
This is my hypothesis (needs to be confirmed or modified by more research):
The deed for the west half was probably written by the property owner (very early 20th century) or an attorney. Most of the lots in the subdivision are 10 acres. This one is on the edge of the subdivision and is a little bit more than 10 acres. The owner probably told the lawyer he wanted to sell the west half of his 10 acre property (or he did it himself). Then he and the grantee fenced off the west 5 acres. It just so happens that the fence actually encloses a little less than 5 acres on the west but they weren't splitting hairs out there. Now, Ian Wilson says the fence is not parallel to the east and west boundaries because it runs north through rows of Eucalyptus trees which were planted orchard style for some business scheme that didn't work out. I'm not sure when they were planted and that information could cause a problem with my hypothesis.
This case is an example of an interesting problem that could have used a lot more investigation than it was given. Just laying out the boundary (now several decades old) in a mathematical location where it never was located doesn't seem like a very useful service to me.
Note the Court is not making a statement about fences as a class of evidence, just how the evidence is used. No Appellate court would ever direct that no class or type of evidence can be used, they are concerned with how it is used.
As far as I know this case is unresolved. The Supremes remanded it back down to the Appellate Court and I don't think the parties carried it forward.
Note the Court is not making a statement about fences as a class of evidence, just how the evidence is used
That's how I see it also. Not every fence has the same importance to a boundary. There have been a number of cases locally that go both ways. One took an extreme view of a fence line between two ranches giving an adverse claim to the owner south of a township line to 40 acres north of the township that was deeded to the neighbor. All because of a fence that was removed along the township line and not replaced within 10 years.
Another case went the opposite direction because a prior landowner testified that the fence in question was only a fence of convience to keep cattle into pastures and no one ever intended the fences in the area to mark boundaries.
Indeed, to be ultracautious, one should also say, “Don’t even buy property unless you have first had it surveyed.” :good:
Although this new rule augers well for both surveyors and litigators...
Unfortunately, you're known by the company you keep 🙁
Dave, I Disagree With Your Statement
"Just laying out the boundary (now several decades old) in a mathematical location where it never was located doesn't seem like a very useful service to me."
The above underlined statement is a totally wrong assumption.
That boundary existed where it was mathematically located for years before that location may have become dishonored.
Paul in PA
Dave, I Disagree With Your Statement
Well Paul,
Some still want to preserve that protracted position, even tho the landowners are satisfied with their established locations for many years.
Sorta like the townships that are all nice and square and those darned established monuments are not nice and square anymore.
Keith, "Where It Never Was Located" Is A False Statement
Where it is and where it was are 2 differing facts, but it is contrary to your unbiased professional opinion to say it never was somewhere else.
Reread Dave Karoly's statement and my reply, and stop trying to suit the subject to your whim.
Paul in PA
Keith, "Where It Never Was Located" Is A False Statement
Well OK, I can't say it never was somewhere. It could've been located in an infinite number of locations.
I can only evaluate the physical and measurement evidence. I have no authority to elevate measurement evidence above physical evidence just because it offends my sensibilities that they should've done it better.
In California, half descriptions are ambiguous on their face. There is no requirement that they follow an single straight line down the middle of the lot as it was done on the Survey. The line shown on the Survey is only one possible solution of an infinite number of possibilities all of which would be legally valid.
Keith, "Where It Never Was Located" Is A False Statement
So, the Town I work in has a policy. When you want to set a fence, you should put it 6" off the line to honor the boundary. They have a little pamphlet on it and everything. Fortunately they also recommend a survey and when those folks come in I tell them to set that fence right on the line.
Now, if you take the case where an honest Joe follows the recommendation and puts his fence 6" off the line, how could you ever assume that both parties would ever agree that the fence was the boundary?
Conveyances are common in these parts. Realtors are savvy and know that the property corners are at the telephone poles and that fences are all along the boundary lines. If the subsequent owners start to rely on the expert opinions of the Realtors' for their boundaries, would those boundaries actually change?
Keith, "Where It Never Was Located" Is A False Statement
"Reread Dave Karoly's statement and my reply, and stop trying to suit the subject to your whim."
Geez, Keith, when are you going to learn?
We got engineers working on it now 🙂
Don
The Presumption Has To Be That It Originally Existed Where..
it was created to be.
Else, why would you ever read a deed? Just go to Google Earth and the GIS info.
The Court has placed a heavy burden on the owner and the surveyor.
The burden on the litigator is to collect his fee and wiggle his lips.
Paul in PA
The Presumption Has To Be That It Originally Existed Where..
Paul-
I am trying to engage in a back and forth debate.
Merry Christmas and a happy and prosperous New Year to you and yours!
Regards,
Dave Karoly
Keith, "Where It Never Was Located" Is A False Statement
well why don't we just make property lines as fat as the ambiguity associated with them. see this dark line? the actual property line lies in there somewhere.
Keith, "Where It Never Was Located" Is A False Statement
Where ambiguity exists there is a procedure to be followed as prescribed by law.
Physical evidence is at the top of the list.
Ambiguities
And if the physical evidence is ambiguous? Use a sharpie on the plan.
