The Role of Land Surveyors in Society

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The Role of Land Surveyors in Society

?ave a nice day! Or, may your monument prevail over some guy’stouchscreen.?/em>

WarrenWard,PLS(Colorado)

Introduction

It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic, it has been experience.[footnote]Oliver Wendell Holmes, Jr., The Common Law, Lecture I, Early Forms of Liability, Page 1 (ABA 2009 Edition)[/footnote]

In recent decades, and in particular since the 1994 Bryant decision[footnote]Bryant v. Blevins, 9 Cal.4th 47 (1994), 884 P.2d 1034, 36 Cal.Rptr.2d 86[/footnote], the California Courts are relying heavily upon the expert testimony of Land Surveyors as to where boundaries are located and what they are in law[footnote]White v. Spreckels, 75 Cal. 610, 616 (1888), 17 P. 715: ?hat are boundaries is a matter of law; but where they are is a matter of fact.?quoting Bolton v. Lann, 16 Tex. 96.[/footnote]. Examples of this are the 2014 case, Bloxham v. Saldinger[footnote]Bloxham v. Saldinger, 228 Cal.App.4th 729 (2014), 175 Cal.Rptr.3d 650, 2014 Daily Journal D.A.R. 10,221[/footnote](Bloxham) and the unpublished sections of Belle Terre Ranch, Inc. v. Wilson[footnote]Belle Terre Ranch, Inc. v. Wilson, 232 Cal. App. 4th 1468 (2015), 232 Cal. App. 4th 1468; 182 Cal. Rptr. 3d 393[/footnote]. In Bloxham (citing Richfield Oil Corp. v. Crawford[footnote]Richfield Oil Corp. v. Crawford, 39 Cal.2d 729, 741 (1952), 249 P.2d 600[/footnote]) the Court held that the testimony of Land Surveyors is admissible to help determine the location of a boundary and that it is a question of fact which of two conflicting Surveyor’s opinions are correct.[footnote]Bloxham v. Saldinger, supra, at 737 & 738: ?urveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted. [Citations.]?The weight and credence to be given an expert’s testimony is a question for the trier of fact. [Citations].?and ?owever, Mr. Parrott gave his reasons for establishing the corner 200 feet west of the ravine, and we believe it was for the trial court to weigh and evaluate his testimony.?quoting Luginbuhl v. Hammond, 179 Cal.App.2d 350 (1960), 3 Cal.Rptr. 582.[/footnote]Given the reliance the Courts are placing upon our testimony, it is imperative that Land Surveyors know the law of boundaries and practice in accordance with it. To do otherwise can fix a boundary in the wrong place permanently when the Court uncritically accepts the only Survey offered into evidence. In addition, improper Boundary Surveys can send two neighbors to Court to wage an expensive and unnecessary battle over their mutual boundary.

This article focuses on the essential role the Land Surveyor plays when acting as a Boundary Surveyor. The role is fourfold: first, the Boundary Surveyor lays out new boundaries that have never been surveyed before. Second, the Boundary Surveyor retraces boundaries that already exist on the face of the earth by virtue of previously existing deeds, agreements and maps. Third, the Boundary Surveyor recognizes when boundaries are established in a location in accordance with the best available evidence as applied to the controlling law and informed by equitable considerations a court may recognize. Finally, the Boundary Surveyor assists the property owners in preparing and recording documents as needed. Recording documents to explain the new boundaries laid out, resolve any conflicts, or adjust boundaries and files a Map of the Survey in the public record which serves to give notice to the public of these actions.

New Boundary Lines

It will be seen that the underlying principle is to provide a simple and certain form of land identification and legal description of the public lands.[footnote]B.L.M. Manual of Surveying Instructions, 1973: Section 3-1.[/footnote]

When property owners wish to subdivide their property they may call in a Land Surveyor to assist in achieving their goals of lot size and configuration and with accurately laying out and describing the new boundaries. In most jurisdictions this is required by current law (for example the California Subdivision Map Act[footnote]Subdivision Map Act, (California) Government Code, Division 2. Subdivisions, beginning at ?6410[/footnote]). This was not required by law in California for all subdivisions until 1972.

The U.S. General Land Office (G.L.O.) subdivided approximately the western three-quarters of the United States mostly in the 19th century; the G.L.O. was acting in the same capacity as a private land owner subdividing their lands and once the lands are patented out, the G.L.O. stands in the same shoes as any grantor with respect to existing boundaries. The U.S. Deputy Surveyors were issued printed instructions which they were to closely follow when running out the new Townships and Sections on the ground; we have their Field Notes so we know they said they closely followed their instructions as required. They did substantially conform to their instructions by setting monuments and accessories except for the occasional instance of fraud. Fraudulent and grossly inaccurate surveys were among the reasons the contract system was abandoned in the early 20th century in favor of using government employees. The lands were granted by Patent (a Patent is the first grant of public land to a private person[footnote]Garner, Black’s Law Dictionary, Eighth Edition, ?strong>land patent. An instrument by which the government conveys a grant of public land to a private person.?/footnote]) with respect to the Township Plats and Field Notes and, in particular, the lines run and monuments set by the Deputies and the contract surveyors they hired. It is well settled that those monuments and lines are original boundaries and are regarded to be without error[footnote]Diehl v. Zanger, 39 Mich. 601, 605 (1878, Cooley, J. concurring) ?o rule in real estate law is more inflexible than that monuments control course and distance,–a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned.?/footnote].

The U.S. Government further legally (on paper) subdivided the Sections when it patented out aliquot subdivisions of the sections and government lots. Aliquot subdivisions are fractional parts of the Section which are contained in it an exact number of times (for example, there are four quarters in every Section)[footnote]Garner, Black’s Law Dictionary, Eighth Edition, ?strong>aliquot. Contained in a larger whole an exact number of times <5 is an aliquot part of 30>.?/footnote]. It’s crucial to note the boundaries of these subdivisions were not located and established on the ground by the government. That was left to the County Surveyor or the Local Surveyor.[footnote]B.L.M. Manual of Surveying Instructions, 2009: ?-132. The work of the local surveyor usually includes the subdivision of the section into the legal subdivisions shown upon the approved plat. In this capacity, the local surveyor is performing a function contemplated by law. He or she cannot properly serve the client or the public unless familiar with the legal requirements concerning the subdivision of sections.?/footnote]The reality in the 19th century was there were often no Surveyors available to subdivide the Sections or it was cost prohibitive to ?et the Surveyor out there?footnote]Lake v. Crosser, 202 Okla. 582, 583 (1950), 216 P.2d 583, 584: quoting the testimony of the plaintiff.[/footnote].

After the land was patented into private ownership, often the owners would subdivide it on Subdivision Plats (such as lot and block subdivisions). A private Land Surveyor would be employed to create the Plat and stake the streets and lots.

In the case of Deed conveyances which create new boundaries the Boundary Surveyor may be called in to run the boundaries out on the ground for the first time. The Deed description constitutes instructions to the Boundary Surveyor on how to mark the boundaries of the Deed. Often the original Surveyor, particularly in the 19th century, were the parties themselves. Deeds should be Surveyed by reading and interpreting the words of the description the same way the original parties to the Deed did. This is done by occupying the same seats the original parties occupied with the same information and reading the Deed as they would.[footnote]Walsh v. Hill, 38 Cal. 481, 487 (1869), ?he only rule of much value–one which is frequently shadowed forth, but seldom, if ever, expressly stated in the books–is to place ourselves as near as possible in the seats which were occupied by the parties at the time the instrument was executed; then, taking it by its four corners, read it.[/footnote] Most of the familiar rules of construction were developed at a time when the country was new, the descriptions were difficult to interpret at best, and the original parties had a dispute as to what was conveyed in the subject matter (Land Surveyors call this the Legal Description). The Court would step in and apply the rules of construction to the deed contract in an attempt to determine the intentions of the parties and rule in favor of one of the litigating parties.

Intentions of the Parties

The law means to carry out the intention of the parties, and, so far as they have not provided for the event which has happened, it has to say what they naturally would have intended if their minds had been turned to the point.[footnote]Oliver Wendell Holmes, Jr., The Common Law, Lecture IX, Contract III, Page 224 (ABA 2009 Edition).[/footnote]

In real estate transactions, the intentions of the parties is the paramount consideration. The object of all of the familiar rules of construction of deeds and descriptions is to aid in ascertaining the intentions of the parties.[footnote]Truett v. Adams, 66 Cal. 218, 221 (1884): ?..we must construe it so as to ascertain the intention of the parties to the contract, for that is the object of all the rules of construction.?/footnote] The rules of construction are not rigid commands; they typically have exceptions and the rules themselves are not to be used to support an absurd result. ?ourts will give effect to every part of the description if possible; but if this cannot be done they reject that which is repugnant to the general intent of the instrument.?footnote]Serrano v. Rawson, 47 Cal. 52, 55 (1873)[/footnote]

Determining the intentions of the parties is not an easy task; evidence of this is the thousands of published Appellate Opinions found in our case reporters. Rarely are the answers to the questions a binary choice, black or white, or yes or no. The Courts have given us ample guidance on what is relevant and what is best evidence.

Following the Footsteps of the Original Surveyor

?uppose you tell me about it, from the beginning, and then we’ll know what needs doing. Better begin as far back as you can.?/em>[footnote]Dashiell Hammett, The Maltese Falcon, I Spade & Archer.[/footnote]

Once a boundary has been marked by monuments and accepted by those with authority to locate the boundaries, the property owners, the task of the Boundary Surveyor is retracement. The rules limiting extrinsic evidence when the Deed is unambiguous primarily apply to the nature and quality of the estate transferred, that is title questions.[footnote]3 Miller & Starr Cal. Real Est. ?:2 (4th ed.) and cases cited therein.[/footnote]On the other hand, extrinsic evidence is generally admissible in boundary dispute cases.[footnote]3 Miller & Starr Cal. Real Est. ?:2 (4th ed.): ?omment: The courts do not always make the distinction explicit, but as a general rule, evidence extrinsic to the deed is more readily admitted in the construction of a legal description of the property conveyed than it is in the construction of the quality, extent or duration of the estate granted.?/footnote]Direct, circumstantial, and secondary evidence is admissible in California to prove the locations of the original monuments.[footnote]Bloxham v. Saldinger, 228 Cal.App.4th 729, 745 (2014): ??ines actually run and marked on the ground may be proved by any evidence, direct or circumstantial, competent to prove any other disputed fact, and where markers of the original survey have been destroyed, secondary evidence as to the authenticity of their relocation is admissible.?California recognizes these rules to be sound.?(Chandler v. Hibberd, supra, 165 Cal.App.2d at p. 55, 332 P.2d 133.) The Saldingers have not provided legal authority establishing that a monument ?alled to be on the Rancho line by common report?of a number of documents could not be considered by surveyor Jensen in locating the Rancho line established by the original survey.?/footnote]

It is well settled that these rules apply to the original monuments set by the G.L.O. at the section corners, and quarter section corners. Apparently in Justice Cooley’s[footnote]Thomas McIntyre Cooley, LL.D., (January 6, 1824 ?September 12, 1898), Justice of the Michigan Supreme Court, 1864-1885[/footnote]time, the only original monuments were thought to be the section corners and quarter section corners of the PLSS. He rejected this idea in 1878 in Diehl v. Zanger[footnote]Diehl v. Zanger, 39 Mich. 601, 605 (1878)[/footnote], ?othing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.?r

He goes on to explain, ?ut no law can sanction this course. The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance,–a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights…As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are, and it would have been surprising if the jury in this case, if left to their own judgment, had not so regarded them.?footnote]Diehl v. Zanger, supra at 605 & 606.[/footnote]

In Weaver v. Howatt[footnote]Weaver v. Howatt, 161 Cal. 77, 83 & 84 (1911), 118 P. 519[/footnote]the trial court divided 2 miles of Section line into 4 equal parts (single proportionate measure). The Supreme Court reversed the Judgment ruling that the corners must be relocated as nearly as possible to their original locations using the best evidence available; in this case topographic calls found in the official Government Field Notes. The Court notes ?his is not an action to vacate the government survey.? Although proportionate measure may be used where no other reasonable means exists to locate the corners or where the resultant positions approximately agree with the official Field Note record, but in this case the proportionate positions conflicted with the field notes which indicated the Section corner was set in the bottom land, not up a steep hill in thick forest.

The sole task of the Surveyor in a retracement Survey of an existing, settled boundary is to follow in the footsteps of the original Surveyor using the available and existing evidence according to the Appellate Court in Bloxham.[footnote]Bloxham v. Saldinger, supra, at page 736[/footnote]Bloxham involved a retracement of almost 7 miles of Rancho Grant Boundary and part of the dispute centered upon whether the line is to be run straight between original monuments at the extreme ends of the line or can existing (and newer) evidence of the footsteps of the original surveyor be used to show that the line is not perfectly straight. The Court accepted the guidance of expert testimony that old lines run with magnetic compass are not likely to be perfectly straight. They note the original survey is 150 years old and it is reasonable to accept evidence of mesne Surveys conducted through time to determine the fact of where the line is located.

This is not to say measurements can not be used as an aid to following the footsteps of the original surveyor. In Reid v. Dunn[footnote]Reid v. Dunn, 201 Cal.App.2d 612 (1962)[/footnote], the County Surveyor attempted to approximately reestablish two section corners by the topographic calls in the field notes[footnote]Reid v. Dunn, supra, at p.617[/footnote]but found large discrepancies on the order of 300′ to 700′. He also talked with neighbors and timber cruisers in the area to no avail. He did find other original Section corners and used those to established the lost corners by double-proportionate measurement. Mr. Reid, the plaintiff in the case, contended that the County Surveyor should have conducted a search of 500′ in radius looking for the charcoal set by the original surveyor; the Court disagreed with this contention presumably because it is unreasonable.[footnote]Reid v. Dunn, supra, at p.615[/footnote] The County Surveyor thoroughly exhausted all avenues of evidence before concluding the corners were lost; in other words, he found a problem and investigated it thoroughly.

The general work flow of retracing original boundaries is one of research, investigation, and inferring facts from the best evidence available. Research is undertaken to obtain copies of relevant recorded Deeds, Surveys, and other documentary evidence; Sam Spade is correct, the research ?etter begin back as far as you can;?when an old Deed boundary is surveyed it is best to find the original Deed which created it. The investigation begins by reading the Deed and studying the Surveys and other documentary materials; the title history is compared to the survey history. Surveys conducted at or near the time of Deed conveyances are very good evidence of what the Parties intended or relied upon in good faith. The described lands are plotted where the original parties would have placed them; for example, using the monument for the point of beginning that they would have used. The boundary locations indicated by the Deed descriptions are investigated in the field for physical evidence of original boundaries and established boundaries. The physical evidence of boundaries and occupation are measured and plotted on a map. Finally, a well-reasoned opinion of the boundary location is developed from the evidence and applicable legal principles.

Established Boundaries

Thou shalt not remove thy neighbour’s landmark, which they of old time have set in thine inheritance, which thou shalt inherit in the land that the LORD thy God giveth thee to possess it.[footnote]Deuteronomy 19:14, King James Version[/footnote]

The Courts have declared Establishment Doctrines in order to find ways to settle boundary conflicts. The common doctrines, which vary by State, are mutual recognition and acquiescence, implied boundary line agreements, boundary by estoppel and practical location. California has combined mutual recognition and acquiescence and implied boundary line agreements together as one in the Agreed Boundary Doctrine.[footnote]Bryant v. Blevins, 9 Cal.4th 47 (1994); Ernie v. Trinity Lutheran Church, 51 Cal.2d 702 (1959); Young v. Blakeman, 153 Cal. 477 (1908) and numerous others.[/footnote] Boundary by Estoppel is described in Grants Pass Land & Water Co. v. Brown.[footnote]Grants Pass Land & Water Co. v. Brown, 168 Cal. 456 (1914)[/footnote] Practical Location, which applies to new boundaries as between Grantor and Grantee, was first adopted by the California Supreme Court in 1963 in French v. Brinkman.[footnote]French v. Brinkman, 60 Cal.2d 547 (1963)[/footnote] The foregoing doctrines employ the fiction that the boundary has not moved; the established boundary is the boundary per the Deeds and the possessor is paying the taxes up to the established boundary. Finally, boundaries can be established by Adverse Possession[footnote]For Boundary by Adverse Possession see, for example, Price v. De Reyes, 161 Cal. 484 (1911) and Frericks v. Sorensen, 113 Cal. App. 2d 759 (1952)[/footnote], however, it is not discussed here because it is not a true boundary establishment doctrine being more concerned with title and current California Judicial interpretation severely limits its use in boundary cases.

The purpose of the establishment doctrines, and the doctrine of original boundaries, is to secure repose and stability of boundaries.[footnote]Young v. Blakeman, supra, at 482[/footnote] The Courts have repeatedly stated that the stability of land boundaries is highly desirable. They are reluctant to disturb settled boundaries if at all possible. Surveys that attempt to correct past mistakes, and in so doing disturb long-settled boundaries have been called ?a] maverick…survey?footnote]Adams v. Hoover, 196 Mich.App. 646, 654; 493 N.W.2d 280, 284 (1992): ?o give effect to the technically correct but maverick Cole survey would not merely deprive plaintiff of a significant piece of land, but could unsettle boundaries throughout the entire Section 16.?/footnote], ?istaken entirely,?footnote]Diehl v. Zanger, supra at 605: ?he surveyor has mistaken entirely the point to which his attention should have been directed.?/footnote], and a ?holesale disregard?footnote]Weaver v. Howatt, 161 Cal. 77, 84 (1911)[/footnote]of the original survey.

Agreed Boundaries

The Agreed Boundary doctrine has been discussed, modified, tinkered with, and generally variously understood and misunderstood by the Courts, Attorneys, and Land Surveyors. The Doctrine was labeled a ?esidual doctrine?and a ?ast legal resort?in Mesnick v. Caton[footnote]Mesnick v. Caton, 183 Cal.App.3d 1248, 1257; 228 Cal.Rptr. 779 (1986): ?here no reliable legal description exists, the courts have resort to the agreed boundary doctrine. It is better than nothing. But the law should not employ a residual doctrine, a last legal resort, to dispossess an owner of his land when a legal means of establishing an accurate boundary lies quite readily and conveniently to hand.?/footnote]and this commentary was approved by the Supreme Court in Bryant v. Blevins[footnote]Bryant v. Blevins, 9 Cal.4th 47, 53; 884 P.2d 1034, 36 Cal.Rptr.2d 86 (1994)[/footnote]. The Court in Bryant did somewhat blunt the affect of criticism of the doctrine by Mesnick. The Bryant decision limited its application by changing the standards of proof in certain evidentiary scenarios.

The requirements of proof necessary to establish a boundary location pursuant to the agreed boundary doctrine are well settled by the decisions in this state. The doctrine requires that there be [1] an uncertainty as to the true boundary line, [2] an agreement between the coterminous owners fixing the line, and [3] 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[footnote]Bryant v. Blevins, supra, at 55[/footnote].

Uncertainty means the property owners did not know where the true boundary was located when they agreed to establish it.[footnote]Kunza v. Gaskell, 91 Cal.App.3d 201, 209; 154 Cal.Rptr. 101 (1979)[/footnote] The property owners may be mistaken. California allows either subjective or objective uncertainty. Subjective uncertainty means a Surveyor’s opinion of the line is not required. The California Courts are requiring that there be direct evidence of mutual uncertainty and a mutual agreement to uphold an agreed boundary[footnote]Since Bryant 7 cases have affirmed a trial court judgment ruling for the agreed boundary. My count is 6 are subjective uncertainty cases and 1 is an objective uncertainty case. All of these cases are unpublished, they are: Garrison v. Hodge, 2003 WL 1996048 (2003-Subjective); VanSandt v. Trivedi, 2007 WL 1290223 (2007-Subjective); Kempton v. Cooper, 2009 WL 1553653 (2009-Subjective); Kliban v. Dixon, 2011 WL 244816 (2011-Subjective); Best v. Breaker, 2012 WL 1985691 (2012-Subjective); Soroush-Azar v. Palmer, 2013 WL 5293692 (2013-Subjective); and Boulder Skies Limited Partnership v. Prazma, 2014 WL 1087875 (2014-Objective)[/footnote]in subjective uncertainty cases.

Objective uncertainty means two Land Surveyors could reasonably reach materially different opinions on the loction of the true boundary or the descriptions are not specific about location (see Truett v. Adams[footnote]Truett v. Adams, 66 Cal. 218, 219; 5 P. 96 (1884): ?xcepting therefrom all the land comprehended in the Encinal of Temescal sold on the 13th of March, 1852, to John Caperton and others.?/footnote]for an example). If the boundary is objectively uncertain then the property owners can resolve the uncertainty by agreeing to a location[footnote]Bryant v. Blevins, supra, at 54[/footnote]; the Court can infer that when the boundary was established there was uncertainty and an agreement to establish it in order to settle the uncertainty.[footnote]Bryant v. Blevins, supra, at 61 (dissenting opinion by Justice Mosk)[/footnote]

If the property owners know where their common boundary is located then a parol boundary line agreement is invalid because it transfers title without a written instrument. However, if they are truly uncertain, then a parol boundary line agreement is not within the Statute of Frauds[footnote]Young v. Blakeman, 153 Cal. 477, 482; 95 P. 888 (1908) ?ut that [the boundary line agreement] fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title?/footnote]. It is important to understand that valid boundary line agreements do not move the boundary, they merely define its location.

The acceptance and acquiescence period in California is five years[footnote]Code Civ. Proc., g 318, 319, 321 to 322[/footnote]which is the statute of limitations for adverse possession. The acquiescence period may be waived if a party relying upon an agreement would suffer substantial loss if the boundary line agreement is not enforced. In McCormick v. Appleton[footnote]McCormick v. Appleton, 225 Cal.App.2d 591 (1964)[/footnote]adjoining property owners were uncertain of the location of their common boundary so they agreed on a location in 1959 and then McCormick built a split rail fence and planted trees. In 1961 several property owners in the area commissioned a survey of the area boundaries which determined McCormick’s fence and part of his bedroom was on Appleton’s property. McCormick prevailed in the ensuing litigation on the agreed boundary theory and Appleton appealed claiming the required five year statutory period was not met. The Court ruled that McCormick would suffer a substantial loss if the boundary line agreement was not upheld and affirmed the trial court judgment.[footnote]McCormick v. Appleton, supra, at 595: ?hus, while the general rule requires that the period of acquiescence in the agreed boundary must be equal to the period of the statute of limitations [citation], an exception has long been recognized where substantial loss would result unless the agreement were upheld.?/footnote]

Land Surveyors should investigate the possibility of a valid boundary line agreement when occupation lines do not match the surveyed boundary. Making inquiries of the neighbors and anyone who might know the history of an occupation line is prudent and could avoid unnecessary, and costly litigation. A review of the title history and survey history may reveal a pattern of occupation lines being established as a result of old surveys. The purpose of the Agreed Boundary Doctrine is to secure stability and repose in land boundaries[footnote]Young v. Blakeman, supra at 481: ?f the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.?/footnote].

Boundary by Estoppel

Estoppel is an equitable rule where a person may be prevented or estopped from making or denying certain allegations of fact in Court to prevent an injustice[footnote]Garner, Black’s Law Dictionary, Eighth Edition, ?strong>estoppel. A bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established as true.?/footnote]. Where an adjoiner had informed a prospective purchaser that a certain fence was the boundary of a parcel of land, and the purchaser acquired the property in reliance on the adjoiner’s statements, the adjoiner was estopped from claiming their common boundary was located elsewhere[footnote]Grants Pass Land & Water Co. v. Brown, supra, at 461[/footnote].

Estoppel is not a common boundary establishment doctrine and it requires an uncommon and specific set of facts to operate. Equitable doctrines, such as estoppel, can only truly be invoked by a trial court Judge sitting in equity but there is no reason adjoining property owners could not agree that the boundary is established in a certain location, whatever the reason.[footnote]For a complete discussion of Boundary by Estoppel see Boundary Litigation in California, 11 Stan. L. Rev. 720, 728 (1959) and 6 Miller & Starr Cal. Real Est. ?17:46 (4th ed.)[/footnote]

Practical Location

The Doctrine of Practical Location applies when an owner of a large tract of land conveys a portion to another person and there is a physically established boundary not precisely in compliance with the Deed description but it is accepted by the parties as the boundary. Note the phrase ?ractical location?to denote a physical boundary is also often used in explanations of other establishment doctrines. The California Supreme Court adopted the Doctrine of Practical Location from other jurisdictions in French v. Brinkman[footnote]French v. Brinkman, 60 Cal.2d 547, 387 P.2d 1, 35 Cal.Rptr. 289 (1963)[/footnote].

In French, Horace French owned two subdivision lots in Ridgecrest, California. He had his house, swimming pool, and bath house on one of the lots. French couldn’t find the lot corner monuments so he built a block wall based on a guess on where the lot line was located (he owned both lots). He sold the adjoining vacant lot by Lot number to Brinkman. French and Brinkman had discussions at the time of the sale and French testified that he was selling the lot up to the block wall.

About a year after Brinkman purchased the lot he discovered the wall was about 3-1/2′ on the lot he thought he purchased. Brinkman took down the wall (probably greatly annoying the Court) and the litigation ensued. The Court ruled that the Deed description did not reflect the true intentions of the parties to convey only the land north of the visible monuments (the wall)[footnote]French v. Brinkman, supra, at 552: ?n the present case, however, special rules come into effect allowing the admission of parol evidence on the facts presented. Under plaintiffs’ theory, they intended to sell, and defendants intended to buy, only that parcel north of the visible monuments, i.e., the wall and bathhouse; through mutual mistake the deed did not truly express their intention (Civ. Code, ?3399) 1 ; therefore, the evidence was admissible in order that the deed might be reformed to conform to such true intent. [citations]?/footnote]. Therefore the Doctrine of Practical Location (and Agreed Boundaries) was invoked to carry into effect the true intentions of the parties.

The Court also explains the Parol Evidence Rule’s prohibition again admitting extrinsic evidence when the Deed is unambiguous does not apply to this case[footnote]French v. Brinkman, supra, at 552[/footnote]. They reason that the rule applies as to the nature of the estate transferred (for example, fee vs. easement) but, by implication, not to boundary cases.

The Doctrine of Practical Location appears to be another way to uphold boundaries established by the original parties to the Deed. Perhaps the distinction is that here there is a palpable difference between the lot line called for by the Deed and the physical boundary actually intended by the parties. In contrast, an original boundary was established as the Deed boundary.

Conclusion

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.[footnote]Abraham Lincoln, quoted in Collected Works of Abraham Lincoln, see http://abrahamlincolnonline.org/lincoln/speeches/lawlect.htm[/footnote]

Abraham Lincoln was speaking to lawyers when he advised them to encourage compromise and discourage litigation but Land Surveyors should take his words to heart too. Land Surveyors can discourage needless litigation, first, by properly investigating and determining boundaries in accordance with law and, second, by proposing equitable solutions to resolve boundary conflicts.

When reading cases I often consider ways the Land Surveyors involved could have helped end the conflict rather than just highlight the issues. In Bryant v. Blevins, discussed above, the dispute was over a fence an average of 30′ west of the true boundary per the Deed measurements. In a nutshell, Blevins wanted the strip between the true boundary and the fence partly because he had an R.V. pad and leach field in the strip and Bryant wanted acreage which amounted to half the lot (approximately 5.3 acres versus their occupation of 4.9 acres). One solution that might have been proposed is to adjust the boundary so that Blevins keeps his R.V. pad and leach field while Bryant would receive compensating land in the rear of the two properties.

Another example is a 19th century Deed which calls for a 1/16th corner for the point of beginning. An examination of the Deed conveyances reveals the description first appeared in a Deed in 1897 which was three years after a Surveyor set a redwood post marking the corner. Plotting the Deed from that post instead of the theoretically correct location of the 1/16th corner harmonized with the ancient fence 400 feet east of the post. In this case proper Deed interpretation and following in the footsteps of the 19th century property owners would avoid costly litigation and possible damage to one of the property owners established rights.

If the case reaches a trial court then the Boundary Surveyor should provide a well-reasoned opinion of the boundary location rather than a simple diagram showing a Deed line based on measurements versus the lines of occupation and possession. Proper Deed interpretation in accordance with the Deed descriptions with a view to the objective intentions of the parties should be required so that the trial court has useful opinions and advice towards finding the best solution to the conflict.

Finally, Boundary Surveyors must become familiar with the Law; the information is readily available. In California, I recommend Miller & Starr California Real Estate, Chapter 8 Deeds, Chapter 15 Easements, Chapter 17 Adjoining Land Owners, and Chapter 18 Adverse Possession to start. National resources are American Jurisprudence 2d, and Corpus Juris Secundum (C.J.S.) under Boundaries, Deeds, and Easements. A National Real Estate treatise is Tiffany Real Property 3d which has sections covering boundaries, establishment, easements, and deeds among many others. There is no substitute for reading case law to get an understanding of how the Courts decide these cases; if Boundary Surveyors follow their lead as much as possible it would solve a lot of problems.


Copyright ?2016 David B. Karoly.

David B. Karoly asserts his right to be identified as author of this work in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. Without limiting the rights under copyright reserved above, you may share this article with your friends provided it remains in its complete original form, including this copyright statement, and no charge is made. You may quote this article in your own work with attribution; quotes should be limited to no more than one paragraph. This article must not be sold or distributed for commercial purposes by any person or persons other than the seller or sellers authorized by the above author and publisher.

Dave Karoly

Dave Karoly

Chief of Point Cloud Wrangling and Sanitation

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