A 758Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE
Okay, the first time I read this case I thought the majority opinion was just plain wrong and the dissenting Justice Mosk best represented the law. How could these honorable Justices of the majority just whimsically set aside the facts on the ground in favor of some ambiguous deed language? Well, I’ve been gnawing on this thing for months and have concluded that the majority opinion is actually a rather brilliant reflection of the evidence.
What made me turn Pi on this? Well for starters was Monte Seibel’s "hole in one" retracement survey. He did a bang up job and both parties agreed that it accurately represented the original grants carried forward through the relatively short chains of title on the ground. We covered that last month.
Although it’s not a point in the Majority’s opinion I can’t help but to focus on the chain of title. Bryant took title from the direct beneficiary (grantee) and witness to the original senior lot split. Blevins was only one owner away from the original grantor in their chain. However, Blevins took and held title to a junior half while the original grantee of the senior half maintained title commonly for a decade thereafter. Where it appears that the Haak family may have permitted the fence, without testimony to the contrary, it just doesn’t seem likely that the original grantee would be so uncertain of his 330′ corner that he would call it lost or agree to a fence corner 87% of the length down the line.
I hold the context of being close to the original grants as important. Although three quarters of a century elapsed since the senior split there were only four operative parties in this chain of title not counting Bryant who was confused shortly after taking title and threw up the red flag. There was the original subdivider of both halves (Brandenburger), the senior grantee (Haak), the junior grantee (Reynolds), and Blevins, the successor to Reynolds. Haak held title to the west half throughout the entire span of Reynolds’ and Blevins’ tenures over the east half. There’s just not a lot of motion in the chains of title which in itself naturally curbs the opportunity for uncertainty and conflict in the record. It seems like a subsequent junior fee holder would need a big stick to upset the established rights of a longstanding and original grantee of the senior right. Again, I point out that Bryant had just acquired title from Haak so the ripened senior claim still seems to have Haak’s aroma…for whatever that’s worth. Keep in mind this is "context" not necessarily evidence.
At any time after the 1909 split it seems like a competent surveyor could have been called upon to reliably identify the true corners. I don’t think the owners’ can skimp out on a survey because "they are expensive", either. Apparently the paternal evidence of Lot 57 was strong enough that any ol’ Johnny Deedstaker could have tossed a few lawn darts and hit the halfway mark. Monte Seibel easily recovered the boundaries without a doubt and he seemed quite certain about it. Big whoop, right? Well it is a big deal in the sense that if two adjoiners are uncertain of their boundaries they better shake loose with the shekels and hire a surveyor to either substantiate their claim of "uncertainty" or find evidence to relieve the owners’ of that uncertainty. That’s a focal point of this case. Owners simply cannot whimsically invoke the agreed boundary doctrine. The position must be truly lost which makes an expert opinion invaluable to the Court’s evaluation of evidence. The standard(s) of evidence for the agreed boundary doctrine can be summed up as uncertainty, agreement, and acceptance. The crux of this case is the standard to prove the "uncertainty" part of things. The majority of the Supreme Court felt that the lower Courts misapplied the standard and that’s the basis of the appeal. Just to be clear, there ain’t no problems with the rope stretchin’ and bob danglin’: this is a matter of law. So let’s stroll down that path and don the flak vest of professional inquisition.
When I first read this case I confused the owner’s acquiescence "of" the fence’s existence with a boundary agreement "up to" the fence so naturally the lower Courts and dissenting Justice Mosk seemed like they got it right. Notice I say acquiescence "of" the fence rather than acquiescence "to" the fence. Apparently an owner has an obligation to defend his property or lose it (i.e. through adverse possession). So when a fence goes up that resembles a boundary an impacted owner should object to the placement and/or permit the fence to encroach. In this case there’s little if any evidence to prove the fence was built to mark the boundary. Haak apparently acquiesced to the existence of the fence but I think that’s about it. Who knows, in Haak’s mind the true half line and fence line could have been so obviously different that nobody could mistake the two as the same. At that point we could just as easily assume that he quietly permitted the fence as we could that he acquiesced to the fence being the property line. Haak may have very well known where the true line was and no evidence surfaced that he equated the fence with the true boundary. This is reinforced by the trial Court’s observation "[I] don’t believe that there has been any testimony … to indicate there is any sort of dispute that arose when the persons got together and made an agreed fence." That notion itself seemed to be a deal breaker to The Supreme Court of California which said "(The defendants)…failed to demonstrate that an uncertainty as to the true boundary line led the prior coterminous owners to agree to fix the boundary separating the parties’ respective parcels of real property at the location of the barbed wire fence,"
So if no dispute exists then are we looking at consenting owners attempting to reconfigure boundaries and convey land? The best that I know is that agreed boundary doctrine should not affect the chain of title as the line is simply being fixed to the ground and the intent is not to reconfigure or convey property. The Supreme Court of California cited this precedent "such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements…. [¶] … [¶] The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable…. If a measurement is made and the line agreed on and acquiesced in as [9 Cal. 4th 55] required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds".
I would hope that a Court’s decision or owner’s boundary line agreement would be recorded in all states but I can’t say that for sure. Your homework assignment is to find a boundary line agreement in your local records and review your local statutes. For example Colorado Revised Statutes § 38-44-112 says this: Any uncertain line, uncertain corner, or uncertain boundary of an existing parcel of land that is recorded in the real estate records in the office of the clerk and recorder for the county where the land is located and that is in dispute may be determined and permanently established by written agreement of all parties thereby affected, signed and acknowledged by each as required for conveyances of real estate, clearly designating the same, and accompanied by a map or plat thereof that shall be recorded as an instrument affecting real estate, and shall be binding upon their heirs, successors, and assigns. If the map or plat is prepared by a licensed professional land surveyor, monuments shall be set for any line, corner, or boundary included in the agreement.
Next month we will dive into the dissenting opinion. Feel free to send your homework results and thoughts to me at rls43185@gmail.com or the editor.
Jason Foose is the County Surveyor of Mohave County Arizona. He originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian.
Sidebar:
Barbershop Barrister
I like the English tradition of the Barrister’s wig although I just don’t see it working in the USA. Invariably we would end up with a rainbow array of Mohawks, mullets, corn rows, Princess Leia buns, NFL logos, and corporate sponsorship of "NASCAR-ian" proportions. It’s just a bad idea, right? Well apparently asserting the agreed boundary doctrine with strong record evidence is a big stinker as well…except that the spaghetti almost stuck to the wall in this case and two lower Courts bought into the argument.
The agreed boundary 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. In this case the burden of proof is on the defendant because he cross claimed with the agreed boundary doctrine. The Supreme Court said "there is no evidence that the original barbed wire fence dividing Lot 57 was erected to resolve uncertainty as to the location of the property boundary that separated the west and east halves of the original lot. The record is silent as to when, or why, the fence was built." That statement alone deflates two-thirds of the claim. I can’t help but to wonder why adverse possession was not the primary cross-claim? There’s about 21 years of fence evidence and possibly taxable and/or building permit-"ish" improvements installed by the encroacher. Perhaps a peek at the assessor’s historic improvement records may reveal evidence of Tammany Hall sticking their meathooks into the improvements and getting them on the tax roll? That might help an adverse possession claim, no? Regardless, the lower Courts apparently felt that in effect not objecting to the fence was a boundary line agreement despite the fact that both parties agreed that Seibel’s Survey accurately reflected the legal descriptions. I call bull snot! The agreed boundary doctrine doesn’t change the legal status of the line it simply fixes it to the ground. Blevins boldly accepted Seibel’s survey as accurately fixing the record boundary to the ground and yet claims the fence accurately fixes the record description to the ground. How can it be both? I think you gotta go one or the other and I’d roll the dice with adverse possession. I suspect that the only reason the fence was out of place was because nobody really cared at the time but that’s only my $.02 before taxes.
Now, here’s our mindbender of the month. The agreed boundary doctrine is the double proportion method across private domains. The primary requirement for both is that the corner is lost or uncertain. I equivocate the two terms for this discussion. The differences are the public domain is under singular custody and Congress has created a uniform method to refix the corner as the same legally. Conversely private landowners are not bound to strict procedure but are respected when harmony is achieved between them. The end result is stability of boundaries and no change in the legal description.
Now hold up there Tex, before you explain how it’s done in Tejas! The measurements may vary from the original record I suppose but the legal bounds of the description are maintained and best I can tell you shouldn’t have to record a new legal description, `cept maybe in Texas? In theory no title is transferred, right? So, that being said, don’t you think that before you proportion across private domains, that the owners should also be in agreement that the corners are lost and the refixed position is acceptable? You know, just like a boundary line agreement.
A 758Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE