What do you do with this?

Dave Karoly, post: 356242, member: 94 wrote: ... 1993 Survey reveals mistake in survey 1898 house was built to (I know OH MY GAWD!)
1898 house is "encroaching" 2' onto uphill lot.
Surveyor called it encroaching which seems nuts..........

Seems nuts?

Of course we don't have all the specifics, but is the insanity ever going to end? Does anyone really wonder what, if anything, will end the usefulness of our profession?

[sarcasm]Maybe we all should restrict the practice of land surveying only to construction and GIS management - maybe we can get those right....[/sarcasm]

What's the character of other contemporaneous houses in the neighborhood? Are they typically built right up to the rear lot line? I would think that would inform the decision as to whether or not practical location pertains.

Jim Frame, post: 356245, member: 10 wrote: What's the character of other contemporaneous houses in the neighborhood? Are they typically built right up to the rear lot line? I would think that would inform the decision as to whether or not practical location pertains.

Both properties were in common ownership until 1989. When the court sold the lot in 1989 it's clear they at least sold the land under house too (they owned it). When property is sold it is presumed all things necessary for the enjoyment of the property is sold too. In effect the house is a monument.

Unfortunately the lawyers messed up pushing A.P. on this case.

Dave Karoly, post: 356242, member: 94 wrote: Neighbors each own a 25' wide single family lot in the most expensive City in the U.S. (a shack starts at $1 million).

The lots were in common ownership until 1989..

This is in San Francisco and these are houses that survived the earthquake and fire of 1906?

My first question would be what the evidence was upon which the more recent resurveys of the lots were based. I thought that there were more than a few land records destroyed in 1906. Was the survey made from some title issued from some reconstruction of the original records pursuant to the McEnerney Act?

In other words, the lot and house were put on the market and offered for sale. It's obvious the house is part of the sale. The house is not encroaching because the estate owns both lots. I don't think the common grantor can pull the rug out after the fact and say oops the house we just sold you is now encroaching 2' on our lands. This is basic Justice. I think whatever physical boundaries (fences, walls, etc) that were represented to the 1898 buyer are the boundaries, not the surveyed lot line.

This case is very similar to French v. Brinkman, 60 Cal 2d 547 (1963) except the roles are reversed. The Grantor in that case sold less than the entire lot. French owned both lots and sold one to Brinkman. There was a wall 3' onto Brinkman's lot built when French owned both lots. French represented he was selling the lot up to the wall.

If the defendant is aggrieved because he didn't get all of his $1.5 million 25' wide lot his beef is with the common grantor (he is junior), not his neighbor.

Kent McMillan, post: 356249, member: 3 wrote: This is in San Francisco and these are houses that survived the earthquake and fire of 1906?

My first question would be what the evidence was upon which the more recent resurveys of the lots were based. I thought that there were more than a few land records destroyed in 1906. Was the survey made from some title issued from some reconstruction of the original records?

That is my thought too.

Dave Karoly, post: 356250, member: 94 wrote: I don't think the common grantor can pull the rug out after the fact and say oops the house we just sold you is now encroaching 2' on our lands.

It sounds to me like estoppel comes into play before anything else, so why even bother trying to shoehorn the circumstances into some kind of agreed boundary doctrine?

Jim Frame, post: 356253, member: 10 wrote: It sounds to me like estoppel comes into play before anything else, so why even bother trying to shoehorn the circumstances into some kind of agreed boundary doctrine?

It could be the 1898 house is better evidence of the location of the original line than survey from modern block control. Granted I know very little about SF surveying practice.

Jim Frame, post: 356253, member: 10 wrote: It sounds to me like estoppel comes into play before anything else, so why even bother trying to shoehorn the circumstances into some kind of agreed boundary doctrine?

"In accordance with general rules governing estoppel with respect to the title to property, 1 a grantor may be estopped to show the true line of property conveyed, where he or she has misled the grantee into the belief that the line is located elsewhere. 2 Thus, where the declarations of the grantor in relation to boundary lines controlled the grantee in the purchase of the land, the grantor and those claiming under the grantor are estopped to assert any boundary in opposition to the lines claimed by the grantee pursuant to the grantee's reliance on the grantor's declarations. 3 A purchaser is warranted in relying on an owner's representations as to the boundaries, whether designated by acres or dimensions, and, if the representations are false, the grantor and those claiming under the grantor are estopped to assert any boundary in opposition to the lines claimed by the grantee. 4 Also, where one purchases land in reliance on statements of an adjoining proprietor from whom the purchaser's predecessor acquired title that the boundary between the properties is a line just north of a designated shed, and enters into possession and makes improvements on the land so purchased, the adjoining proprietor and his or her subsequent successor in interest are estopped to dispute the location of the boundary as thus represented. 5" -54A Cal. Jur. 3d Real Estate å¤ 994

Footnotes

1. 1 Staniford v. Trombly, 181 Cal. 372, 186 P. 599 (1919) (stating that the essential elements of estoppel have been enumerated as false

   statements or concealments, or conduct amounting thereto, with reference to the boundary made by one having knowledge, actual or virtual, of the facts, to one ignorant of the truth, with the intention, resulting in consummation, that he or she should act on the false statements, concealments, or equivalent conduct).

2. 2 Friedman v. Southern California Trust Co., 179 Cal. 266, 176 P. 442 (1918).
3. 3 Grants Pass Land & Water Co. v. Brown, 168 Cal. 456, 143 P. 754 (1914).
4. 4 Hay v. Allen, 112 Cal. App. 2d 676, 247 P.2d 94 (3d Dist. 1952).
5. 5 Frericks v. Sorensen, 113 Cal. App. 2d 759, 248 P.2d 949 (2d Dist. 1952).
6. 6 Franklin v. Dorland, 28 Cal. 175, 1865 WL 483 (1865).
7. 7 Moore v. Wilkinson, 13 Cal. 478, 1859 WL 1029 (1859).
8. 8 Kengel v. Stuart, 38 Cal. App. 528, 176 P. 874 (2d Dist. 1918).

"Secondly, it seems clear that the term estoppel has been used indiscriminately by the California courts in boundary cases. 65 In many instances, the court has apparently used estoppel as an alternate label to identify the agreed boundary theory. 66 The presence of this ambiguity makes precise analysis of the decisions difficult. Where a court uses the term estoppel when the facts reveal the requisite elements of an agreed boundary, it can be argued that the estoppel language is superfluous, although it illustrates the tendency of the courts to confuse the two theories. And since many cases are readily explainable on the prescription theory, 67 only a few cases appear that can indisputably be cited as examples of the application of the estoppel concept--those in which the court finds, or the facts show, that agreed boundary could not have been the real ground of decision. 68" -BOUNDARY LITIGATION IN CALIFORNIA, 11 Stan. L. Rev. 720, 727 (1959)

I think it's an original boundary. Either the original 1898 boundary (it's an m&b lot, typical of SF the subdivisions only created blocks) or it's an original boundary created by the 1989 grant to Sigman (the 1898 house).

Besides the purpose of all the rules we have learned is to give effect to the intentions of the parties. No rule is allowed to frustrate the intentions of the parties. I don't think it is likely that Sigman's grantor unknowingly intended to keep 2' of the house and Sigman intended to not acquire the ground under 2' of the house. Therefore Sigman acquired all of the ground under the house at a minimum. Sigman is senior to Mariano, Mariano couldn't acquire what their common grantor already gave to Sigman.

And the house is better evidence of the original boundary anyway.

The 1898 house is 2' wider in the front than rear it jogs on the west wall so the rear part of the house is clear of the survey line. The only thing that isn't clear is, did Sigman bump the house out to the west when he renovated it or was the house like that since 1898? So this needs more investigation. All my comments above assume the house has not been added to.

We have the surveyors measuring down the street, setting a corner, turning down the lot line and seeing a house in their scope then setting the rear corner. What frustrates me about this is they do no further investigation into the title history and age of the house, etc to flesh out the fact pattern and legal possibilities to possibly avoid an unnecessary legal battle. The Surveyor often is the first to detect the problem. At least step back and investigate. Maybe the record title boundary is the boundary and the house encroaches and the world keeps spinning. Maybe the house was built two years ago and they didn't get a survey. Or maybe the black control was different in 1898 and the house was not encroaching.

I don't blame the Surveyors, I was taught many of the same things, you know the unwritten rights, let the lawyers and courts figure that out. In that era around 1900 the courts often ignored the surveyors because they only measured often ignoring senior rights. Now we are at a point where the lawyers often don't know what to do and the courts regard the surveyors as the experts so when we give them a measurement with no qualification they fix it as if it was a real determination.

In the past 15 years there has been an us vs. them mentality, I'm a record title surveyor or I am an occupation surveyor. Also unfortunately some people were slammed in national magazines which is not conducive to dialog. I say stake the record title when that is correct, or find the original boundary when that is correct or accept the occupation when that is correct. There is no one size fits all solution. If you set the front corner and then turn down the lot and see the no major issues with occupation then stake it. But if you see a house or major hiatus then investigate further. It may be the encroachment is just an encroachment or it may be the boundary is somewhere else.

The only thing the two surveyors fight over is a tenth difference in their measurements. One set a cross and the other set a nail and tag a tenth away.

Dave Karoly, post: 356460, member: 94 wrote: I say stake the record title when that is correct, or find the original boundary when that is correct or accept the occupation when that is correct.

and when all three are in conflict? Given the cost of litigation it's no wonder it's the most expensive real estate in the country.

Excuse me while I grab my popcorn.

Carry on.

The plot is thickening. A 1941 Survey by the City shows the "cottage" 0.75' clear. He adds about a foot to the lots facing the north-south street to the east. The block is long 1' and I assume the City Surveyor put the overage there because of some evidence that it belongs there under the principle of leaving blunders where they originated.

The problem is the issue has been adjudicated, the gavel has fallen, I don't know if the case can be reopened. Typically Judgments are final, the Courts won't permit one of the parties to try again with a different theory. The reason is to encourage litigants to pursue all theories and causes of action now to save court time and avoid repeat litigation. I think Sigman would have to have a cause of action not related to the first but I'm not an expert in civil procedure by any stretch of the imagination.

So the court adopts an incorrect survey, I don't think it can be fixed. This is why I want to figure this out, because I think the Attorneys and Courts are expecting it.

Williwaw, post: 356464, member: 7066 wrote: and when all three are in conflict? Given the cost of litigation it's no wonder it's the most expensive real estate in the country.

Excuse me while I grab my popcorn.

Carry on.

It's not a perfect world. All you can do is the best you can. Sometimes the surveyor may have to say the line is here but I think acquiescence fixes it over there, per advice from Cooley. Then if the owners are unable to agree to a solution (lot line adjustments, etc) and they insist on going to court then take the stand and tell the truth, give a well reasoned opinion and the Judge may agree with you or maybe the other guy.

Dave Karoly, post: 356466, member: 94 wrote: The plot is thickening. A 1941 Survey by the City shows the "cottage" 0.75' clear. He adds about a foot to the lots facing the north-south street to the east. The block is long 1' and I assume the City Surveyor put the overage there because of some evidence that it belongs there under the principle of leaving blunders where they originated.

The problem is the issue has been adjudicated, the gavel has fallen, I don't know if the case can be reopened.

Didn't you say that the title was conveyed under a description that merely described the tracts by lot number? What connects that description with the location of the lot upon the ground?

Is the block one of the San Francisco blocks where the City arbitrarily narrowed street rights-of-way after 1906 to create excess in the block?

Kent McMillan, post: 356473, member: 3 wrote: Didn't you say that the title was conveyed under a description that merely described the tracts by lot number? What connects that description with the location of the lot upon the ground?

Is the block one of the San Francisco blocks where the City arbitrarily narrowed street rights-of-way after 1906 to create excess in the block?

Yes, I was mistaken, I thought they were conveyed by Lot number. They are actually conveyed with an even foot tie to the block corner thence at right angles etc. I'm not an SF expert, it seems to me after the Recorders office burned down in 1906 the City resurveyed the whole City and reconstructed new descriptions connected with some sort of Court process. Apparently sometimes the even foot ties don't fit the party walls. But take all this with a grain of salt. Dane Ince knows a lot more about it.

The Location of the historical line is irrelevant. The lots were in common ownership in 1989, while it may be 2 lots for taxing and zoning purposes it has merged into one lot for ownership. When the Probate Court sold off 2 lots it subdivided the ownership creating a new line between the lots. As the subdivider this new line and is located where the Probate Court intended.

Would the Probate Court really intend to place the line through a dwelling?

The answer to the problem is in the Probate Court's records.

Common ownership does not merge lots where this case took place.

clearcut, post: 356544, member: 297 wrote: Common ownership does not merge lots where this case took place.

It may not have "merged" the lots, but it does dictate when the common grantor doctrine may apply. It moves the "intent" from the 1800's to the 1989 transaction. In other words, was the intent of dividing the property to convey a portion of an existing house to the adjoiner?