Laws are different from rulings
Laws are specific while rulings are based on circumstances about a case.
You have to follow laws which are static until superseded by new laws.
Rulings on the other hand keep on changing until it is judged as final.
As was mentioned above, the ruling came about because of the wife's testimony about what she heard from her deceased husband. If she was not around to testify then you are talking about another ruling altogether.
You cannot use the circumstances of a particular case & apply it as law to another case that have differing circumstances. If that were the case then there would be no need for litigation of new cases. Litigants will just need to review past rulings and lawyers would be out of new clients!:-$
I doubt it very much if most surveyors can keep track of court rulings especially if you mentioned that most cases are not even published.
And of the cases that are published, you can find a dozen rulings to oppose another dozen rulings.
Laws are different from rulings
> Laws are specific while rulings are based on circumstances about a case.
> You have to follow laws which are static until superseded by new laws.
> Rulings on the other hand keep on changing until it is judged as final.
While I’m not familiar with the court system in the Netherlands, I am fairly familiar with how the courts work in the states where I practice.
Yes, rulings are different than the law. You can have laws without ruling, but you cannot have rulings without laws, facts, and evidence. A ruling is the decision of a court wherein the court considers the evidence and facts and applies the law to determine who or what prevails. The court will take the evidence, derive the facts, and apply the appropriate law to those facts. Yes, rulings will keep changing with changes in evidence, facts and the law.
> As was mentioned above, the ruling came about because of the wife's testimony about what she heard from her deceased husband. If she was not around to testify then you are talking about another ruling altogether.
>
> You cannot use the circumstances of a particular case & apply it as law to another case that have differing circumstances. If that were the case then there would be no need for litigation of new cases. Litigants will just need to review past rulings and lawyers would be out of new clients!:-$
>
If you change the evidence and the facts, it isn’t surprising that a different law will apply, or that a different decision will be made using the same laws. That is why the courts in the U.S. publish cases.
> I doubt it very much if most surveyors can keep track of court rulings especially if you mentioned that most cases are not even published.
>
> And of the cases that are published, you can find a dozen rulings to oppose another dozen rulings.
That is why many of us try to read as many decisions as we can. Some of us wish to learn which laws apply to differing fact sets. This is very important in boundary surveying as every survey is unique.
Dave Karoly earlier posted why some cases are published and some are not. Please review it.
If surveyors (or other professionals) are not supposed to read case decisions, just where are we supposed to become and remain reasonably informed about the law in which we are expected to have knowledge of?
Laws are different from rulings
> I doubt it very much if most surveyors can keep track of court rulings especially if you mentioned that most cases are not even published.
This is why it's important for a surveyor to focus on the underlying principles upon which courts have decided the issues before them instead of simply the outcomes or the specific words and phrases used by a court in setting out its opinion.
When the case law is not settled, there in fact will be contrary opinions rendered on similar questions as conflicting principles are engaged. I think it's fair to say that the doctrine of agreed boundaries is one such backwater of the law where the law is adapting to modern circumstances and throwing off the expediencies of an earlier day. The nearly invisible thread that passes through most boundary litigation is the matter of equity, a judge trying to do what is right, but justifying the basis of his or her decision along some more conventional lines.
Couldn't have said it better myself, Kent.
I couldn't even get close.
Well said amigo. :good:
Laws are different from rulings
The U.S. follows the English style of Common Law. I think the Candadians do to.
Trial Court Judgments do not make the law, they only apply it to the facts of the case.
If the case is appealed then the Appellate Courts have the power to revise the pre-existing Common Law. Most of the time they don't. In this way the Law evolves over time through the dispute resolution process. The advantage of such a system is the Appellate Courts have some flexibility in how they solve problems; the disadvantage is published opinions can be voluminous and sometimes inconsistent. The other thing is use of previous Opinions needs to be checked to see if that particular opinion is still valid law through checking indexes. The best known system is known as Shepard's which is owned by LexisNexis. WestLaw has their Key Cite system.
Our system of Appeal is governed by strict rules as to what the Appellate Court can do. The Trial Court's assessment of witness credibility is upheld because the witnesses don't retestify in front of the Appellate Court. The Appellate Courts check the fact determination to see if it is supported by substantial evidence (less than the normal standard of proof in Civil cases). They review the application of the law to the facts afresh (known as De Novo review). Sometimes they make adjustments to the commmon law, make a new explanation of existing law, or examine a new fact situation; typically these are the Appellate Level cases that are published. Above the Appellate Level we have the Supreme Court which is the Court of last resort. All Supreme Court cases are published; the Supreme Court does not accept all requests for review. They probably took on the 1994 Bryant case because there were conflicts between the different Appellate Court districts here.
The case per this thread is unpublished which means it can't be cited in other cases as an authority on the law. It only has legal force as to the parties to it. Unpublished cases are instructive, though, as to how Judges reason the solutions to these cases.
Utah as well
>>
> For us out-of-staters, please provide the citations for the following statements:
>
> 1) By statute in CA, if adjoining owners want to establish a boundary in a location they determine on the ground, they first have to make effort to locate the true boundary, they cannot simply agree to a location that is in conflict with a location ascertainable by a true and accurate survey.
>
> 2) It is only when there is ambiguity in the written instrument as to location that they can agree to a line in order to decide what their title documents intent is. At least that is the case if the owners want to provide for clean, marketable title.
>
> 3) The courts have taken greater liberty in applying "uncertainty" than provided to the local authorities.
>
> 4) An owner could be found in violation of the subdivision map act if he/she tried to reform their deed to comply with an agreed location, unless he/she could show that the written instrument was of signficant uncertainty as to location.
>
> Thanks.
Good questions Brian,
I think maybe to explain my take on this, I will first use a similar discussion regarding an entirely different part of the law.
Often I hear of the term "prescriptive easement" applied to a usage such as persons utilizing a driveway across another's without permission.
In reality, I generally refer to this usage as the "appearance of prescription", simply because it is not an affirmed prescriptive easement until adjudicated. The ability to quiet title in favor of a prescriptive easement only exists while certain actions and testimony are presentable to the court. Non-use, change in use to a permissive use, and loss of witness testimony to term of use, can all cause the ABILITY to gain prescriptive title to change. In other words, the ability to gain the right is not in perpetuity. It only exists for the time period that the actions and testimony are available which meet the requirements for an action to quiet title.
A surveyor's record of survey may capture current use and parties subject to the use. But that documentation by the surveyor does not provide any guarantee to a future use receiving quiet title to the prescriptive use.
Now, I as the surveyor who comes across such an "appearance of prescription" will discuss the particulars with the client and it may be decided that the best approach would be to record an easement to provide clear title to all. And, importantly, to avoid litigation costs.
It is important to note, that what is recorded is a grant of easement. The appearance of prescription was never perfected, rather it was replaced by a written grant. The appearance of prescription fades and over time becomes unavailble as an action to quiet title.
Now to take that same understanding, I'm going to use an example that closely parallels the particulars of the specific case Dave presented in this thread.
Smith and Jones own adjacent parcels. They don't know where the boundary is between them, but decide to build a fence where they believe the division of lands is practical. In doing so, they agree that the fence will represent the boundary. The fence and the agreement and both neighbors are in harmony with the situation for more than than the prescribed period (5 years in CA).
We have the appearance of an agreed boundary. The appearance of the agreed boundary only exists while the requirements for an action for quiet title exist. Such a title may be perfected by an action to quiet title. A surveyor documenting the conditions does not perfect the title. It may provide evidence that the appearance of title existed at that instant in time. But it does not guarantee future parties will have all the requirements for title at a future time.
Now, the big difference between the agreed boundary and the prescriptive easement, are that a substitute solution is available to the owners. They may record a grant of easement instead of pursuing an action to quiet title. The owners cannot record a "prescriptive easement". That is not an action they can formalize by themselves. They must use a substitution.
And so, the problem for the owners of the agreed boundary becomes apparent. It would be a relatively simple matter if their agreement was to resolve a true uncertainty in the location. Such a true uncertainty would provide for allowance to reform or correct the deeds which rely on the agreed to boundary location as location of a practical matter.
However, there is no vehicle available only to the landowners to formalize an "Agreed Boundary". The owners only have the appearance of an agreed boundary. The appearance of which only exists for the time period for which the elements and testimony supporting the appearance exists.
Reason being is fairly simple. Even if Smith and Jones were to enter into an agreement (written or oral) to recognize a boundary line, which is in a location other than the written title location. Said written title location being unambiguous as to location on the ground, they would be restricted from recording deeds to a line described in conflict with the written title by the California Subdivision Map Act. In particular, Section 66412d which governs lot line adjustments.
For, even though the courts have recognized the doctrine of agreed boundaries, and have interpreted the element of uncertainty to be so broad as to allow those same courts to ignore and not investigate the level of establishment the questioned boundary may have previously been established by the original partitioners, this same level of power has not been provided to the people of the State of California by the legislative process which enacted the Subdivision Map Act. For while the doctrine of agreed boundaries may find that an agreement constitutes establishment due to uncertainty in the parties, the same litmus test of uncertainty is not provided outside of an action to quiet title.
To recap, perhaps over time, a usage, an occupation or an agreement will ripen into an appearance of title. The appearance of such may be perfected by actions to quiet title. However the same principles and doctrines which provide the courts guidance in resolving conflicts, are often not codified by the legislatures in to statutory procedures which guide the orderly develpment of land.
One cannot possess against another and gain ownership by statutory process. Rather it requires action of the court for determination.
Same goes with agreed boundaries. While the court has guidance on how to adjudicate these issues, the same guidance is often not provided for in statutory procedure for landowner and agency action outside of the court.
Perfection of title to the appearance of an agreed boundary is perfected by court action. The substitutive procedures in California are governed by the Subdivsion Map Act, except where ambiguities in title allow for reconstruction of the written instrument.
Utah as well
Thanks for the post. What you have described is going on in Utah at this time. Basically the title industry and the recorders refuse to accept the common law from the Utah Supreme Court. They insist and fight to keep a goofy statute in play that says a boundary line agreement must be in the form of a quit claim deed. In other words a boundary line adjustment. So we now have boundary line agreements, boundary line adjustments, and the newest term this session parcel line adjustments. But each and every one of them must be done with quit claim deeds (conveyance to the line). They say its fine for the common law solutions to exist BUT NOT IN THE PUBLIC RECORDS. They won't map them or accept them.
So I'm trying to figure out how to get legislation passed that requires the title folks and recorders to accept Utah common law. Go figure, we need legislation to make folks abide by the law. I'm pretty sure if such legislation gets in front of the legislature it will be a knock down drag out. This has about a ten year history, I already know who the combatants will be.
The funny thing is is that the current Boundary Line Adjustment bill is a result of the Boundary Line Agreement statute being a conveyance of land that tripped the P&Z regulation with all the fees, time and hassle coming into effect. So now they want to let these boundary line adjustments be outside of the land use laws. If the wisdom of the common law was followed this problem wouldn't even exist as boundary establishment doesn't convey property, it only establishes the location of boundaries.
I think it is actually easier to get surveyors to understand this than title folks. The reputation of surveyors is so bad in Utah that no one will listen to any of them. They even make fun of surveyors on the floor of the legislature. The title industry has it all sown up to the point they can ignore the law with impunity.
The really sad part of all this is that landowners property rights are totally tramped and trashed by all this. Simple common sense ways to resolve boundary issues as provided by our common law are rejected by the rest of the system. By the common law a landowner could resolve his issues but the rest of the system with all it''s “superior wisdom (based in ignorance) thinks it needs to stick its nose into it.
Another bill I'd like to run would be to eliminate surveyors from Utah totally. I'd like to see whether the title folks supported it or not. It might pass in record time. They been trying to get rid of surveyors for a long time, they already got 99% control. I wonder if they would go the final step and get rid of the whipping boy. Who could they blame the problems on after that?
I'd estimate there is ten problem descriptions in the record hacked by title folks to every problem one written by a land surveyor. Then they insist on them being laid out perfectly on the ground and then when the square peg doesn't fit neatly in the round whole it's an incompetent surveyor that created the problem. The common law gives us the right answer but we ain't going to have anything to do with that.
The final irony. The idea for making boundary line agreements be required to be executed by quit claim deeds (over ride the common law by statute) came from a recent version of Clark. It's cited as being originally put in place in Georgia but seems to have been repealed since. Must have caused some problems which we are clearly finding out in Utah at this time. What seemed like a good idea just led to worse problems. The long time developed wisdom of the courts shouldn't be ignored on a whim!
Utah as well
I think a start to crafting good legislation will be to address the definition of uncertainty. Some courts have broadened this to include incompetent and ignorant actions. In the case Dave presented with this thread, no discussion was presented on the actions of the original partioners. The court was as ignorant as the fence builders as to whether the boundary had ever been established on the ground by the original partioners. They never explored whether the line actually moved by the fence builder actions. Instead the court was only privy to the limited evidence and testimony which led them to believe the fence builders could be equated to that of an original subdivider. The fence builders did nothing to retrace the footsteps of the original subdivider. The court also never looked for the footsteps.
Ignorance is bliss. Ignorance is no excuse.
Long live ignorance.
I think they may have published Martin to demonstrate an exceedingly poor use of expert opinion. Whether it was an expert unwilling to fully review the previous surveys, or a client/legal team unwilling to pay the expert to fully review the previous surveys, I don't know. But it reads like it had to be one or the other.
Reviewing the records of surveys involved, and reading about some of the testimony that the ruling recounted, it seems like a reasonably competent attorney/expert team should have been able to identify the correct issue (practical location) and been able to support it.
Utah as well
The Subdivision Map Act specifically exempts the situation in Kliban.
Most Local Agencies have a Lot Line Adjustment Ordinance for adjusting the boundaries of up to four legal parcels at one time; this Ordinance sort of fills the hole left by the SMA.
I am pretty sure the Common Law doctrines supersede local ordinance.
If two property owners had agreed on a fence as the boundary and several years later when a Survey uncovers the mistaken location; I think they could settle the conflict by recording a Boundary Line Agreement and then have the Surveyor do a Record of Survey showing the agreed boundary. This is assuming one doesn't sue the other; once the litigation is joined then the Surveyor should hold off until the matter is resolved.
I don't see any reason for alarm. It used to be commonplace in some rural parts of CA that landowners would, upon finding out that certain lines per careful measurement based on the descriptions weren't where expected, enter into boundary line agreements to recognize the long-existing locations of old fences. They hired surveyors to locate the fences and write the descriptions accordingly.
The boundary surveyor who looks beyond measurement and provides a professional rather than a merely technical analysis and opinion is going to be able to sort through these matters after a full investigation of the available facts. The surveyor discovering these facts and understanding the principles as the courts have applied them, can advise their clients of how the facts in their case fits with, or does not fit with various boundary doctrines.
If the facts fit with the agreed boundary doctrine, and the affected landowners choose not to challenge, the surveyor can help facilitate a boundary line agreement. If the adjoiner chooses to challenge it with legal action, or the client chooses to assert the agreed boundary through legal action, the surveyor can provide expert support to the client's attorney.
When landowners choose to determine their own lines, it can take away from potential workload of local surveyors in the short term. There will normally be no problems as long as the same landowners continue to own the afected properties. But as soon as one of the properties changes hands, all bets are off. In most cases, the selling landowner neglects to inform the buying landowner of the full set of circumstances of an agreed boundary. When a subsequent landowner decides to place a fence, pull a building permit, divide the property, the fence that was placed by agreement of previous landowners is then shown to be out of position.
At this point, that agreed boundary that took potential workload out of the local survey market has turned into a job that will take 3 to 5 times the survey effort and has also become workload for attorneys.
Nope. Nothing for surveyors to be alarmed about at all. But for those who see the job starting and ending with measurement in accordance with strict adherence to deed dimensions, it probably should be cause for alarm. A case like this, published or not, reaffirms that boundary surveyors still need to consider the significance of fences, walls, and other objects placed as the limits of occupation.
Utah as well
> The Subdivision Map Act specifically exempts the situation in Kliban.
>
I'm unaware of where the SMA exempts ignorance of the true boundary from the requirement of agency approval to move a boundary. Please enlighten.
> Most Local Agencies have a Lot Line Adjustment Ordinance for adjusting the boundaries of up to four legal parcels at one time; this Ordinance sort of fills the hole left by the SMA.
>
The 540 agencies have 540 ordinances specifying 540 different form and procedures for LLAs. It is state law that mandates a LLA receive agency approval. Not the 540 varying ordinances.
> I am pretty sure the Common Law doctrines supersede local ordinance.
>
I'm pretty sure local ordinance is statute law which triumphs common law doctrine within its jurisdictional boundary until and unless deemed unconstitutional.
> If two property owners had agreed on a fence as the boundary and several years later when a Survey uncovers the mistaken location; I think they could settle the conflict by recording a Boundary Line Agreement and then have the Surveyor do a Record of Survey showing the agreed boundary. This is assuming one doesn't sue the other; once the litigation is joined then the Surveyor should hold off until the matter is resolved.
The courts from time to time have elevated ignorance of the true boundary to an equivelance of uncertainty sufficient to justify their use of the agreed boundary line doctrine to adjudicate a boundary dispute in what it sees as an equitable manner. I don't dispute its goal of maintaining repose despite the possibility its ignorance of earlier establishment may have actually resulted in moving the boundary as opposed to locating it. However, being as the state of CA has enacted statute law governing the reformation of boundary descriptions and location, I would caution a surveyor against proceeding with being party to further development of a boundary line agreement outside of the adjudication procedures involved in an action to quiet title.
Of interesting note, further down in 66412 one can find the limited circumstace provided for boundary line agreements to be performed without having to conform to the mapping requirements. It is a very limited circumstance. Perhaps it would be beneficial to further expand the allowances contained therein, however I am of the belief that the ability to reform deeds in the case of true uncertainty (as opposed to ignorance), can be found elsewhere in the codes governing real estate contracts. I do find it compelling that the legislature found it necessary to define when a boundary line adjustment can be used. As such, I would assume the contrary may be shown?
I rereading Martin yesterday...
I think this may be the reason for publishing...
"[3] Second, if Kirkegaard's conclusion that mutual mistake is sufficient to show “uncertainty” was ever good law, it is no longer. Bryant requires “deference to the sanctity of true and accurate legal descriptions....” (Bryant v. Blevins, supra, 9 Cal.4th at p. 55, 36 Cal.Rptr.2d 86, 884 P.2d 1034.) Thus, a boundary is not uncertain if it can be ascertained by an accurate survey."
I don't think Bryant required objective uncertainty but this seems to. This would likely be the law at least in the 2nd District in California.
I rereading Martin yesterday...
> "[3] Second, if Kirkegaard's conclusion that mutual mistake is sufficient to show “uncertainty” was ever good law, it is no longer. Bryant requires “deference to the sanctity of true and accurate legal descriptions....” (Bryant v. Blevins, supra, 9 Cal.4th at p. 55, 36 Cal.Rptr.2d 86, 884 P.2d 1034.) Thus, a boundary is not uncertain if it can be ascertained by an accurate survey."
>
The potential danger of that line of reasoning, is that a future court might carry it further in that old surveys, long relied upon but poorly measured (i.e. not accurate), might fall to newer "correct" measurements of an "accurate" survey that place the "true" corner in a location where it never existed.
I think that at some point, the CA courts are going to have to curtail this high regard for theoretically correct "true" locations to recognize the value of the stability of accepting positions established with honest intent to mark the true locations.
Even with that standard (honest intent, albeit position resulting from imperfect procedure or mistake in measurement), Bryant v. Blevins would have resulted in the same outcome. I don't recall that it was discussed thoroughly in the appeals decision (which is why it seems backwards), but the fence was not established with a good faith attempt to mark the true boundary.