Is that a rip in the force I feel?
Under the California Rules of Court this case is unpublished, however, it is instructive.
Kliban v. Dixon, 2011WL244816
Corte Madera, CA (Marin County)
Uncertainty established.
Intention to build fence on boundary line established by testimony.
Survey by Dixon in 2002 or 2003 finds the fence not on the "true" boundary, of course, otherwise we wouldn't be having a lawsuit.
Armitage, Mesnick, Bryant and Medizahdeh are distinguishable because there was no evidence in those cases of who built the fence or why they built it there. Bryant (Supreme Court) adopted the reasoning and findings in Armitage and Mesnick (both Appellate Cases). Medizadeh is an Appellate case which came after Bryant.
Here is the Google Scholar link:
http://scholar.google.com/scholar_case?q=Kliban+v.+Dixon&hl=en&as_sdt=2,5&case=5940361141294737840&scilh=0
I got this from the Sacramento Public Law Library's WestNext subscription. It is at the top of the list of negative cites to Bryant v. Blevins (1994) 9 Cal.4th 47.
That's a good one...I could see where this was going after the history of the neighbors agreement.
i do wish they hired a surveyor in the first place, instead of an architect, to layout the agreed upon line. Could have avoided all this in the first place.
It teaches me as a surveyor to consider ALL the evidence before making a boundary decision.
Joe
From what I understood from the article, it would seem that surveyors in the US should be a bit alarmed of this decision.
The 1st impression I get is that for property boundary surveys, need for actual surveys would be going down.
If every adjoining owner just agrees on their common boundary & it will become legal then there would be no need for actual boundary surveys. They can just ask a lawyer to draw up a deed of sale with corner points described as pine tree, elm tree, oak tree.
Why have a need for a survey plan at all if owners could agree by themselves on their common boundary lines.
Another thing I don't understand about the ruling, if after both parties agree on their boundary lines, shouldn't the next step be to update the deed boundary lines? This would then be the basis for subsequent deed of sales.
I don't see the need for boundary surveyors diminishing anytime soon.
Unpublished cases are interesting critters. The court makes it's pick and then tells everyone, "don't try this at home".
Check out Eisinger v. Filler MT Sup. Ct Case DA 08-0651 for another unpublished opinion on the fences.
> Is that a rip in the force I feel?
Well, if the decision is to be withheld from publication, isn't that an indication that the court didn't want it to have any value as precedent?
2013 California Rules of Court
Rule 8.1105. Publication of appellate opinions
(a) Supreme Court
All opinions of the Supreme Court are published in the Official Reports.
(b) Courts of Appeal and appellate divisions
Except as provided in (e), an opinion of a Court of Appeal or a superior court appellate division is published in the Official Reports if a majority of the rendering court certifies the opinion for publication before the decision is final in that court.
(Subd (b) amended effective July 23, 2008; adopted effective April 1, 2007.)
(c) Standards for certification
An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
(1)Establishes a new rule of law;
(2)Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3)Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4)Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5)Addresses or creates an apparent conflict in the law;
(6)Involves a legal issue of continuing public interest;
(7)Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
(8)Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9)Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
(Subd (c) amended effective April 1, 2007; previously amended effective January 1, 2007.)
(d) Factors not to be considered
Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.
(Subd (d) adopted effective April 1, 2007.)
(e) Changes in publication status
(1)Unless otherwise ordered under (2), an opinion is no longer considered published if the Supreme Court grants review or the rendering court grants rehearing.
(2)The Supreme Court may order that an opinion certified for publication is not to be published or that an opinion not certified is to be published. The Supreme Court may also order publication of an opinion, in whole or in part, at any time after granting review.
(Subd (e) relettered effective April 1, 2007; adopted as subd (d).)
(f) Editing
(1)Computer versions of all opinions of the Supreme Court and Courts of Appeal must be provided to the Reporter of Decisions on the day of filing. Opinions of superior court appellate divisions certified for publication must be provided as prescribed in rule 8.887.
(2)The Reporter of Decisions must edit opinions for publication as directed by the Supreme Court. The Reporter of Decisions must submit edited opinions to the courts for examination, correction, and approval before finalization for the Official Reports.
(Subd (f) amended effective July 1, 2009; adopted as subd (e); previously amended effective January 1, 2007; previously relettered effective April 1, 2007.)
Rule 8.1105 amended effective July 1, 2009; repealed and adopted as rule 976 effective January 1, 2005; previously amended and renumbered effective January 1, 2007; previously amended effective April 1, 2007, and July 23, 2008.
> > Is that a rip in the force I feel?
>
> Well, if the decision is to be withheld from publication, isn't that an indication that the court didn't want it to have any value as precedent?
On a practical level, imagine that Ms. Kliban wasn't around to testify as she did about the conversations she claimed to have overheard before the fence was built. That is, fast forward ten more years and suppose she is dead, with the question never having been litigated. What is the fence now? It's back to being just a fence.
I think only about 15% of Appellate level decisions are published.
The WestLaw PDF I have doesn't specify why it's not published. The rule of law applied is not new; they simply follow the CA Supreme Court case-Bryant v. Blevins.
> An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
>
> (1)Establishes a new rule of law;
>
> (2)Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
>
> (3)Modifies, explains, or criticizes with reasons given, an existing rule of law;
>
> (4)Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
>
> (5)Addresses or creates an apparent conflict in the law;
>
> (6)Involves a legal issue of continuing public interest;
>
> (7)Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
>
> (8)Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
>
> (9)Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
Well, if in the court's opinion, the above criteria weren't met and this is just some run-of-the-mill agreed boundary case, then there ought to be a veritable plethora of agreed boundary cases in California case law, right?
> I think only about 15% of Appellate level decisions are published.
>
> The WestLaw PDF I have doesn't specify why it's not published.
I suspect that the case law involving elderly widows may not be a really excellent basis for deciding the same questions arising between any other parties.
> On a practical level, imagine that Ms. Kliban wasn't around to testify as she did about the conversations she claimed to have overheard before the fence was built. That is, fast forward ten more years and suppose she is dead, with the question never having been litigated. What is the fence now? It's back to being just a fence.
To carry the question forward, suppose that Surveyor X had marked the boundary of the Kliban lot along the fence after speaking with Ms. Kliban. She dies and a resurvey is made. What is the value of Surveyor X's opinion at this point in time if Surveyor X can only tesify that he heard Ms. Kliban say what she claimed that others had said years before?
Believe me there are hundreds of them.
They did publish Martin v. Van Bergen which denied the claim of Agreed Boundary. I need to read it carefully, maybe I can figure out why.
You are right. Current CA law requires evidence of an agreement in the case of just a fence.
I am not convinced that a Land Surveyor should monument a boundary like this which involves subjective uncertainty only.
If the fence was based on an earlier Survey then that would be different.
> You are right. Current CA law requires evidence of an agreement in the case of just a fence.
If you approach the question of agreed boundary from the perspective of the facts in the Kliban case, I think I see the merit of wanting to apply agreed boundary quite sparingly when the original boundary may be determined with relative certainty by a surveyor (as opposed to an architect with a string line).
An agreed boundary requires a lawsuit to prove its existence against subsequent adjoining owners. Price tag? I'd guess $50,000 minimum per each. And now presumably both of the adjoining landowners need to file whatever the California equivalent of an amended or corrected plat is. Price tag? I'd guess $15,000 minimum.
Cost to rebuild fence? I'd guess less than $1,500 for 150 ft. of privacy fence.
Loss to Kliban? Nothing if no valuable improvements other than the fence itself were in question.
So, the equitable solution would have been to hold that the original boundary remained unaltered, that the fence agreement constituted merely a license that expired when the fence might be rebuilt.
If the neighbors wanted to be neighborly I don't know why they couldn't execute a boundary line agreement then have the survey. The County or City might object that it is a violation of the boundary line adjustment ordinance, though.
I mean the neighbors being neighborly is how the whole thing got started.
> If the neighbors wanted to be neighborly I don't know why they couldn't execute a boundary line agreement then have the survey.
What I got from reading Kliban was that the neighbors didn't want to actually pay for a surveyor to locate the line between them. Possibly the architect convinced them that he was just as good with his stringline as some overpriced surveyor (who presumably could easily have found the actual boundary).
As a matter of public policy, how smart is it to encourage actions that cost much more in the long run than boundary surveys actually do and potentially occupy the courts with penny-ante disputes that otherwise would not have arisen?
I was thinking years after the fact when they just want recognize the reality, ugly as it is. That is if they wanted to avoid the litigation.
Obviously Dixon wanted the lost property.
> I was thinking years after the fact when they just want recognize the reality, ugly as it is. That is if they wanted to avoid the litigation.
>
> Obviously Dixon wanted the lost property.
Sure, and in my experience, 90% of the adjoining landowners in his situation would think that they were entitled to the land described in their deed when it was discovered that the fence that the architect had "surveyed" the line for was not actually upon the lot line. Mutual mistake seems the appropriate characterization if the only improvement built in reliance upon the agreement was the actual fence itself.
