It's called the ......
I know Lucas is quite entertaining, but I think he needs to be taken with a grain of salt. These issues are extremely complicated. There is always conflicting evidence as well as equitable considerations that the court will take into account. The public perception is only bad if we diss each other over things that are arguable. If, on the other hand, we explain the evidentiary problems and the nature of the law, then they may understand why get paid the big bucks.
Link to the case
You may be on to something here Adam. What is the presumption of an old occupation line? Are we to presume that based on the fact that there was a transfer (deed) with distances recited in the deed that there was a previous survey that we are to retrace? Or is the presumption that no survey was done if one can't find any record of a survey having been properly performed by a "surveyor" and no trace of surveyor monuments?
Duane
Duane, will all due respect, I think Lucas should be treated with a lot more respect then your ". . .quite entertaining. . . "!
I see him as pointing out to surveyors to do their job what they are paid for and not simply turn it over to a lawyer, who has no authority and usually not much knowledge on boundaries.
He should be read with interest in mind to improve the attitude of some expert measurers!
Just a thought.
This isn't Lucas, it's the court
The only thing Lucas has to do with the situation at hand was calling attention to this case. The paragraph above wasn't Lucas', it was the court's.
> Maybe I just don't deal with a lot of boundary issues where the actual lines are NOT clearly recorded. If you are going over hill and dale to find an old tree or mouth of a stream, I can see where this would be a regular occurrence.
Andy, my man, you need to leave the swamps and come to the mountains of PA and WV where that desribes about every survey that we do. 😀
:good:
Be careful with giving too much credit to Torrens systems as they affect boundary location. Not all Torrens are the same. Most Torrens jurisdictions have a two-prong system. Under the first prong, you can adjudicate the title (ownership); under the second, you can adjudicate the location. Most Torrens systems don't require an adjudication of both. There are a some that do.
JBS
It's called the ......
> I know Lucas is quite entertaining, but I think he needs to be taken with a grain of salt. These issues are extremely complicated. There is always conflicting evidence as well as equitable considerations that the court will take into account. The public perception is only bad if we diss each other over things that are arguable. If, on the other hand, we explain the evidentiary problems and the nature of the law, then they may understand why get paid the big bucks.
Yes, there usually is conflicting evidence, but why do we gather evidence? It should be to find the best available evidence.
I disagree with your public perception comment though. It's only bad because far too many surveyors choose not only to not know the law and what our duties are, but they seem to, for many reasons, refuse to do what we are hired to do and what hte courts expect us to do.
I've noticed that people always say similiar things about Jeff, but they never provide evidence that what he trying to say and teach is wrong or out of touch with reality. Why is that??
CA Courts might be going away from this...
I think it's being discussed in another thread, But the CA Court of Appeals, 2nd Dist, just came out with Martin v Van Bergen. We'll have to see if it goes to the Supreme Court and if Van Bergen goes with more competent counsel. I doubt that more competent counsel could rehabilitate the case at this point anyway.
Wrong issues argued at trial. Lack of competent experts of lack of competent counsel in properly utilizing experts. The court ruled on what was argued, relied heavily on Bryant v. Blevins, which did not adequately discuss case facts which would have put that case in a light that had the ruling making more sense, and the Martin court ruled on the limited, useless, and seemingly self-serving (for one expert) testimony of the experts.
Even with good evidence of an agreement (predecessors in interest jointly built the fence and planted the orchard now argued to be encroaching), the court refused to find evidence of an agreement. When I first came to CA, the state of the law was that a longstanding and acquiesced to enclosure of other limit of use was sufficient to imply agreement and two surveys, each giving due consideration to available evidence but coming to different conclusions was sufficient to show uncertainty. In many cases, if the cost of a survey was disproportional to the value of the land, that was seen as sufficient to constitute uncertainty and agreements were made and honored.
The Martin court seems to solidify that if a surveyor can find the precise mathmagical location per the terms of the deed at any point in the future, even a good faith effort made by the landowners and adhered to by them and there successors over many decades is insufficient to have given definition to that boundary.
I don't think that the court could have screwed this up this bad without counsel missing the right doctrine to argue (practical location vs agreed boundary), missing the easy discrediting of the opposing expert (his survey appeared to be largely a paper survey which did not consider nearly as much available evidence as Van Bergen's surveyor had), and not engaging an expert to fully evaluate the previous surveys and the boundary evidence which should have been at issue. They argued only Agreed Boundary and let the case fall apart on lack of being able to prove a formal agreement.
And so the law becomes a casualty of incompetence.
Florida is unique in that everything really is pretty cut and dried, or at least as far as my experience dictates based on work in Pensacola, the Panama City/Destin/Seagrove Beach region, Naples and Miami. The ambiguity typical in Alabama and Mississippi as a matter of course simply does not exist in Florida.
Y'all actually have GLO monuments and are required in recorded subdivisions to set PRC's, PRM's, and other prima facia evidence that give the expert measurers something to work from. The biggest problem I've had to deal with in your neck of the woods involves pincushioned locations.
Then again, I'm one of those career PC's, so what do I know? In Florida my signature does not appear on a single plat, therefore in the strictly legal sense my opinion is irrelevant, as has been pointed out to me repeatedly.
Link to the case
:good:
Not much in the line of constructive notice in this case, less one realtor pointing to a high line power pole not shown on the surveys.
CA Courts might be going away from this...
Stanley Mosk (there is a statue of him outside the Courts building in Sacramento) wrote a scathing Dissent in Bryant vs Blevins...
"MOSK, J.
I dissent.
The majority concede that the agreed-boundary doctrine applies whether or not there is an available legal document-such as a deed or map-that purports to describe the location of the "true" boundary. (Maj. opn., ante, pp. 53-54.) However, they then in effect create two different standards of proof: if a legal description is available, the party asserting the agreed boundary must present direct evidence "that the prior owners were uncertain as to the location of the true boundary [and] that they agreed to fix their common boundary at the location of a fence." (Maj. opn., ante, p. 58.) If no legal description is available, the rule that has been recognized and applied in California throughout most of this century-regardless of whether a legal description is available-still applies, namely, that direct evidence of uncertainty and agreement is not necessary because "The court may infer that there was an agreement between the coterminous owners ensuing from uncertainty or a dispute, from the long-standing acceptance of a fence as a boundary between their lands." (Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 708 [336 P.2d 525] (Ernie); Mello v. Weaver (1950) 36 Cal.2d 456, 460 [224 P.2d 691]; Hannah v. Pogue (1944) 23 Cal.2d 849, 856 [147 P.2d 572] [citing earlier cases].) I see no reason for this bifurcated standard of proof; I would continue to apply the well-settled inference of uncertainty and agreement whether or not a legal description is available. "
