The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state. ( Mello v. Weaver, 36 Cal.2d 456, 459 [224 P.2d 691]; Hannah v. Pogue, 23 Cal.2d 849, 856-857 [147 P.2d 572]; Martin v. Lopes, 28 Cal.2d 618, 622-627 [170 P.2d 881]; Young v. Blakeman, 153 Cal. 477, 481-483 [95 P. 888]; see also 4 Cal.L.Rev. 179; 14 Cal.L.Rev. 138; 56 Mich.L.Rev. 487 et seq.) The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused by a change of its position. It is not required that the true location be absolutely unascertainable ( Price v. De Reyes, 161 Cal. 484, 489 [119 P. 893]); that an accurate survey from the calls in the deed is possible ( Silva v. Azevedo, 178 Cal. 495, 498 [173 P. 929]), or that the uncertainty should appear from the deeds ( Mello v. Weaver, supra, 36 Cal.2d 456, 460). The line may be founded on a mistake. ( Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651].)
You don't need to read it that carefully. Here is the first paragraph:
"This case arises from a boundary dispute. The defendants rely on the
doctrine of boundary by agreement in defense of the plaintiffs' quiet title action. Missing from defendants' case, among other things, is an essential element – an agreement. We affirm."
I think that's the case in a nutshell (almond).
> The line may be founded on a mistake. ( Nusbickel v. Stevens Ranch Co., 187 Cal. 15, 19 [200 P. 651].)
The doctrine of boundary by agreement arose from a completely different set of circumstances than apply generally today in well surveyed urban areas. In the original context, the value of having things settled so that improvements could be built and the land could be used was great. In the modern context, boundaries that are determinable by the technical means that surveyors have at hand accomplish the same thing. The boundary is settled. The attempts to move it by verbal agreement somewhere other than where it was originally established may be viewed as mistaken attempts that probably will have the effect of unsettling the boundary as the Kliban case illustrates.
I think you've already agreed that the nature of the agreement alleged to exist in the Kliban case rested upon how a court would regard the evidence that Kliban's widow gave. Once her testimony was unavailable, the evidence would be reduced to there merely being a fence in place that hadn't been built upon the original line.
I trust you agree that the boundary in the Kliban case was not actually settled by the fence agreement if you agree that no surveyor would be acting properly to monument the line as fenced as if it were the common lot line until some formal agreement is recorded or a judgment of a court is had.
If you judge the matter on purely practical, utilitarian grounds (which were those that gave rise to the doctrine of agreed boundary in another century), I think you have to conclude that it serves neither party's interest for the law to recognize verbal agreements when boundaries can be ascertained much more cheaply than the question of whether or not there is a boundary by agreement may be subsequently litigated to be actually settled.
In the Kliban case, do you think that either of the parties would have proceeded as they did with the architect and his stringline "survey" had they known how much would have to be later spent on attorney's fees to actually determine *what* they had agreed upon?
I meant why did they publish that one?
Maybe there is something obscure in there that changed something.
The Martin case doesn't seem to be any more special than the case in this thread.
Do you know that this case means that the profession of property surveys is reduced to a sideline requirement?
The findings or re-tracing of a deed property boundary lines by a professional surveyor has no legal weight when compared to a testimony of a person who heard the discussion of an agreed location of the property boundary from someone who is now deceased.
Am I the only one that seems such rulings as incredible?
Obviously Temple got the short end of the agreement with Mr. Kliban which is binding upon his successor in interest, Dixon. No one knew it at the time because no one bothered to get a Survey. I don't know why the Architect was involved.
Dixon must've viewed the premises when he purchased it. I guess the average buyer has no curiosity about whether the fences are on the boundaries or not. If Dixon had the property Surveyed he probably would've at least found out the fence is not on the boundary lines per the Deeds. He could've required the seller to cure the issue prior to close of escrow either by getting Kliban to agree to move the fence or reducing the sales price to account for the lost land. Unfortunately he, like most, waited 12+ years to have the property Surveyed, a case for laches in of itself.
So Temple saved the cost of a Survey and consequently paid in ground. He never knew it but Dixon found out after years of litigation.
You would think this would send a message: get the property surveyed when you purchase so you know what you are getting.
If Land Surveyors would at least talk to the neighbors and listen for evidence then they could better advise their client of the possibilities.
Hearsay testimony is admissable in boundary cases. This is not a novel idea.
I think the opposite. Suppose buyers realized that the occupied premises may not match the expected size of the lot per the Deeds? Maybe they would be encouraged get a Survey to determine what the state of the property actually is. They may find out the fences are on the lines, they may find out the fences are beyond the lines and the feature they think is theres may actually belong to the neighbor or they may find out the fences are short of the lines.
Either way they could require the Seller to cure those issues one way or the other.
Most people get the structures inspected for termite/dry rot damage and structural issues. The seller is required to cure those issues. If the transaction is being financed then repairs are required to be made; if it is an as-is transaction then the price could be reduced upon an adverse inspection.
The most important part of the transaction is the boundaries but most buyers don't bother with that until years later when something rouses their suspicions. It would be like they wait until water starts pouring through the ceiling before they bother to notice there is no roof on the place.
> Do you know that this case means that the profession of property surveys is reduced to a sideline requirement?
> The findings or re-tracing of a deed property boundary lines by a professional surveyor has no legal weight when compared to a testimony of a person who heard the discussion of an agreed location of the property boundary from someone who is now deceased.
>
> Am I the only one that seems such rulings as incredible?
No, I agree with you that the California court applied a doctrine that made sense more than 100 years ago when land boundaries were being sorted out in areas that had been created by methods that left considerable uncertainty as to their locations. However, the doctrine should have very little application in modern-day California where the question of boundaries may be determined by surveyors with relatively little uncertainty.
The agreed boundary doctrine is more of an anachronism that was appropriate to the frontier days. In the case that Dave cited, as far as the record reflects, the adjoining landowners were essentially arguing about whether a fence needed to be rebuilt or not. Considering that the fence ran for 150 ft., I'm thinking that it would have cost less than $2000 to simply move the fence as opposed to the $50,000+ that probably was spent on attorneys and litigation, only to leave the adjoining landowners needing to spend perhaps another $15,000 to correct the part of the map of the subdivision showing their two lots.
It's an excellent example of why verbal boundary agreements are such an inefficient way to settle anything. Perhaps 100 years ago things were much different, but now they generally only create more problems than they solve and should be discouraged.
> Dixon must've viewed the premises when he purchased it. I guess the average buyer has no curiosity about whether the fences are on the boundaries or not.
Isn't the system that is followed in California that residential parcels are typically not resurveyed in connection with sales? Isn't the underlying assumption that once boundaries are established by a survey, that the adjoining landowners won't attempt to move them by parole agreement?
I see the Kliban case in the context of the entire system of land ownership that I've understood to be in place in California. Land surveys at time of sale of residential property aren't part of that system, if I've understood what I've read over the years from California.
> Land surveys at time of sale of residential property aren't part of that system, if I've understood what I've read over the years from California.
This is certainly true of standard subdivision lots in developed urban/suburban areas. As you move toward larger parcels and more rural areas, residential property surveys become more common. However, they're still the exception rather than the rule, at least in the parts of California with which I'm familiar.
I don't mean to offend anyone but don't US surveyors feel trampled upon by such rulings?
Usually courts get expert opinions from professional people for various cases. Their testimony are given value in legal proceedings.
Are there no such professional organizations for surveyors in the US?
I think it is high time that you get together & exert your expertise when it comes to such landmark decisions.
You have to face it, judges are not surveyors or doctors or airplane pilots. For land cases, they should rely on expert testimonies from members of accredited surveyors organization.
From the replies that I have read so far, there are surveyors that rely on court rulings when they survey property boundaries. I read one post where the surveyor believes that existing fences are more credible than what is described in a boundary description because the court says so.
But if you rely on past court rulings as basis for your action in boundary surveys then you are not doing your job. You are in effect becoming a lawyer & not a surveyor. If you rely for example on the ruling from this case for example that you know has flaws then your survey becomes flawed.
So it becomes a chicken & egg situation instead of a finding based on survey principles.
Utah as well
Good discussion on agreement doctrines. I wonder if JBS was involved in this? Incredible that a tree planting causes a supreme court ruling.
Agreement doctrines
Utah as well
2 questions;
Who were the original surveyors of the existing boundaries in both cases?
Whose footsteps should be retraced in determining the existing boundary?
Utah as well
When I first read Bahr v Imus I asked John if he was involved. He was not. It was the court. I think the court just decided it was time to clean up the law and chose this case to do it.
> 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.
What a key Question Dave. If you or I were the surveyor hired, would we decide that yes, a boundary by agreement is in place and we can now monument that alignment? Or do we declare the fence is off the "true" line and simply tell the client that there is an appearance of cloud of title?
In the former, it seems that the surveyor is only provided the ability to take oaths for evidence of original corners per CA LS Act. The exception to the hearsay rule for boundaries is entirely dependant on who is avaialble to testify. For example. If I decide, yes there is a boundary by agreement, I have proof of that agreement because the owner's told me of the agreement. So I feel righteous to monument the "agreed boundary" in opposition of evidence as to the record boundary.
However, once I execute that survey, I am expecting that determination being not only adhered to by future landowners, but also by the court should future owners disagree and contest such findings in court. It is not unreasonable to expect some future owner to look at my record of survey and see that I "moved" the line from what his deed describes. It is also very likely that the testimony I heard, is either not going to be available at such future later date, or be of a different flavor, when presented in a court under oath. Again, remember in CA I can only take oaths as to lost or obliterated corners.
So, say you or I was the one who was hired by the little old lady. We do our due diligence and grill her and the neighbor over the origins of the fence. Then we feel there may be some basis that an agreed boundary is in place, however the little old lady hired us because she wants to know where her deed line is. Can we say, whoa, no survey needed, the boundary is set? Do we really have that authority? We can opine that there is the appearance of establishment, but we are limited in our authority to affirm the oral agreement simply by virtue of opining on an R/S. We are bound by the LS Act to record a survey showing alternate solutions. Since the oral agreement has not been affirmed in the chain of title, we do still have alternate solutions. The oral agreement has not been affixed to the chain of title. Neither is our opinion in form of a record of survey.
The surveyor has no assurance on what witnesses or testimony may be availalble should the line ever be contested.
So that leaves us, the surveyor, needing to amicably resolve this issue. Suppose we talk to the little old lady and convince her that the longstanding oral agreement is valid, but needs to be entered into the chain of title in order to perpetuate it and to maintain a clear title.
How does one do that when recorded surveys exist which show that the true line is locatable, and/or there are no ambiguities in the existing title as to its locatability.
Can one record a boundary line agreement, now that we know the record title line is locatable? Some familiary with CA statute and case law would say the LLA process is best or necessary. Perhaps, but that kind of flies in the face of the court's determination that the line is not moved, but was rather fixed by the agreement.
My feeling is that where the record title line is positively locatable by a true and accurate survey, that we, the surveyors, do not have the authority to claim an oral agreement has affixed the position elsewhere. And, that landowner action to place the fence location in the chain of title, can only be accomplished in California by lot line adjustment, parcvel map, or by action to quiet title.
Again, a surveyor's opinion will not accomplish clear title in the case you've presented here.
We can memorialize the evidence, we can offer solutions, but we are not adjudicators. The ideal surveyor is convincing to all parties as to the best, most appropriate solution.
Just where do you, as a surveyor, get the legal authority to declare that what the landowners have legally done in locating their one and only legal boundary line on the ground in accordance with the law, is now unclear and in doubt and needs to be adjuducated and or run thru some lengthy and expensive bureaucratic process?
I cannot understand what is so complicated about understanding that once the required elements of any boundary location doctrines are satisfied, there is only one boundary line that is recognized by the law. There are not multilple lines, there is no "record line", "original line", "deed line", "plat line", etc. There is only one boundary line marked on the ground, and it is our responsibility to find it.
> But if you rely on past court rulings as basis for your action in boundary surveys then you are not doing your job. You are in effect becoming a lawyer & not a surveyor. If you rely for example on the ruling from this case for example that you know has flaws then your survey becomes flawed.
>
You are joking right? Are you actually advocating that we, as professionals, perform our job in violation of the law?????
Go right ahead. But for me, I will follow the laws and fulfill my professional responsibilities. How can you be protecting the public by NOT following the law?
> 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.
Not to be pedantic, but there was no "lost" property. Nobody stole or lost or gained property. The landowners legally established the one and only boundary. But then again, you knew that. 😉
Utah as well
> Good discussion on agreement doctrines.
It is a very clear and thorough clarification of the boundary location doctrines in Utah. In fact, it now should be so understandable that even mere professional land surveyors should be capable of comprehension of the principles that have been around for more than 100 years (in fact they predate licensing of surveyors).
Now, as for engineers and title co's, that is debatable. Maybe the courts need to start drawing stick figures with crayons to help them out.
> I cannot understand what is so complicated about understanding that once the required elements of any boundary location doctrines are satisfied, there is only one boundary line that is recognized by the law. There are not multilple lines, there is no "record line", "original line", "deed line", "plat line", etc. There is only one boundary line marked on the ground, and it is our responsibility to find it.
I agree, the court can find there is only one boundary. However, how does the surveyor put that into the chain of title? No big deal if future landowners are agreeable to abide by an old oral agreement. However, the fence is contestable. Witnesses to the agreement will pass. Memories will fade and change. In CA the surveyor's authority to take oaths is specifically for memorializing original monument evidence that has been obliterated. A surveyor is not an adjudicator who affirms an earlier oral agreement to a fence supercedes written title that can be positively located according to the terms contained therein.
It is not unreasonable to assumee in the case presented, that the terminal ends of the line were originally monumented in accordance with the terms of the written instrument. The fence was placed in ignorance of those monuments because of the lack of surveyor involvement.
The court ruled that it was unnecessary that the owners (and their architect) made any effort to locate the true line, which was in reality very much locatable. Rather the court held that the agreement affixed the line simply because the true line was unknown to the parties of the agreement.
You as a surveyor may recognize what you believe the court would rule in this case, and then claim the fence as being the establishment of the line. However, it is contestable and subject to the witness testimony in a court of law should any future owners litigate this. Your opinion as a surveyor does not affirm the old oral agreement in the chain of title. It is simply an opinion in the eyes of the court. It is only the court or actions by landowners who can place the fence location in the chain of title by modifying the terms of the written title. The surveyor can only offer an opinion and guidance.
