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  The American Surveyor     

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Written by Our Readers   
Saturday, 24 February 2018

A 50Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

Bryant v. Blevins
I am reading your column about Bryant v. Blevins with interest. I think that you judge Justice Mosk too harshly. I tend to stand with the dissenting opinion. It is not the role of the Court to guide the Plaintiff and Defendant on what to argue. This is especially true at the Appellate Court and Supreme Court level. The case of Bryant v. Blevins was brought to trial on the basis of the Doctrine of Agreed Boundary and that is how it was decided.

I'm not sure about California, but in my home state of Illinois (the Land of Taxes), when a case is reviewed by the Appellate Court, the case is not retried. The decision is based on the premise of "did the lower court get it right". In other words, did the Circuit Court apply the correct laws and come to the correct conclusion based on those laws. In a very real sense, it is the lower court that is on trial at the Appellate level, and only in very rare cases where an extreme miscarriage of justice would occur will they allow the point of law being argued to be changed. In line with this procedure, the Appellate and Supreme Courts do not hear witnesses or take testimony except in cases where they feel it is necessary to understand the lower court findings. With that background, the California Supreme Court ruled on the applicability of Ernie v. Trinity Lutheran Church and other cases cited to the theory of the Doctrine of Agreed Boundary.

Therein may lay the difference of opinion. I think that we can all agree that the "Common Grantor" principal applies since Brandenburger was the apparent original owner of Lot 57. Since he was the original divider, the intent of this division is paramount. While it would result in an absurd result, he would have achieved a "Half" (by area) division by drawing a diagonal across the lot. The deed is silent about that point. The Supreme Court decision is also silent about the possibility of an "original survey" dividing the lot and setting forth the intent of Brandenburger and Haak.

I agree with you that I would have divided the lot exactly how Monte Seibel did it, except to call this a retracement survey is to assume facts that are not in evidence--that there was an original survey dividing Lot 57. We are therefore left with at least some uncertainty as to the intent and location of where a "half" line should be placed. In Illinois, as in California, the word "half" is construed to mean by area except when referring to PLSS divisions. The division line in Lot 57 does not yield an equal area division and therefore it is easy for the Court to jump to the conclusion that it is not the division line intended by the original grantor. Since the fence was erected during the possession of the original Grantee, I think that the argument should have been Adverse Possession or Acquiescence.

Jeff Lucas and Knud Hermanson state that "What a boundary is is a matter of Law, Where a boundary is, is a matter of Fact". You will get no argument from me that what the boundary line is is a line that divides Lot 57 into two equal halves. Where that line is on the ground is where the original divider placed it. For lack of evidence to the contrary, I think that the fence takes on the character of an original monument. This in fact does not change title; the fence merely defines the location that the original parties intended title to run to. I have enclosed several cases from Illinois that are precedential and frequently cited in other opinions.

In McLeod v. Lambdin the Illinois Supreme Court said that a boundary "may be established, first by parole agreement and possession; second by an agreement implied from unequivocal acts and declarations of the parties and acquiescence for a considerable period of time; and third, in the absence of any agreement, by undisturbed possession for more than twenty years." What I found most interesting is that the Court takes notice of the "true Government Line" but does not reform the deed or discuss the legal descriptions. They only deal with the fact that the parties have acquiesced to the hedge fence and later the stump and "stob" as the boundary line between them. Personally, I would look carefully at the possibility that the occupation line was the intended PLSS division line. Your call.

Kandlik is another Illinois Supreme Court case dealing with acquiescence to a fence line that was determined to be the best evidence of the intent of The original Common Grantor. In his specially concurring opinion, Justice Stone states "It is a familiar doctrine of law, that title to real estate cannot be transferred by parole...It is settled, however, that proprietors of adjoining tracts of land may, by parole agreement, settle a disputed boundary line between them. Such an adjustment of the boundary, if followed by corresponding possession, may be binding on the parties, not because it passes title, but because it determines the location where the estate of each is supposed to exist."

And last the Illinois Supreme Court case of Ginther v. Duginger is one where the Court appears frustrated with the attorneys pleading the case and instructs them how to represent their clients. This is only one of the reasons that I like this case--that the Court is truly seeking justice. The second reason that I like this case is that the Court makes a very clear statement that where a boundary line is unascertained or in dispute (in other words there is a clear element of uncertainty in location) that it may be settled by agreement and occupation in accordance with that agreement. Further, the Court states "But this rule also applies only where there is a dispute as to the line or where the line is unascertained. If the line is not in dispute and the intention of the parties was merely to determine the exact or true line, and in so doing an erroneous line is agreed upon by accident or mistake, the agreement will not be established merely because of the agreement previously entered into between the parties."

This is why I believe that arguing a case based on Agreement is on shaky ground. The argument in Bryant v. Blevins should have been based on the Doctrine of Acquiescence or Adverse Possession. Also, there should have been some discussion to indicate how the original split into two halves took place. Were their original monuments? Did Haak walk the boundary with Brandenburger? Was there ever any indication of intent other than a deed? How's that for Monday morning quarterbacking?

The other thing that I find many times perplexing is why surveyors find occupation seriously out of position with deeds and do nothing to keep their clients out of court. Clearly Bryant and Blevins spent a king's ransom to argue this dispute to the California Supreme Court for about 0.4 acres of what could arguably be rural agricultural land. It is my considered opinion that when a surveyor has done reasonably prudent research and finds reasonable harmony within the deeds (part being surveyed and adjoiners) and occupation is elsewhere, he is not finished with his responsibility. Before setting that monument that ignites the conflagration, he should start carefully asking questions of both parties. There are several better ways of solving an uncertain or disputed boundary including exchanging quit claim deeds or executing and recording a boundary line agreement if there truly is uncertainty.

In the case of Bryant v. Blevins, I believe that there was enough uncertainty to justify the conclusion that the fence was the long-time acceptance of the fence as the boundary line described in the deeds. I agree with Justice Cooley that long settled boundaries should not be disturbed. Even though Monte Seibel's survey was technically correct, and I may have done exactly what he did, it is time that we put on our "big boy" pants and started acting like professionals and quit expecting that the Courts are going to clean up the mess. Surveyors are not empowered to settle boundary line disputes, and neither are attorneys. But guess who is--the owners themselves can with professional help settle an uncertain or disputed boundary in a lot shorter time and at a minimum of expense if we stand up as guardians of the land boundaries and understand that the Courts don't always get it right either.

I enjoy your column and I think that by better understanding what the Courts think and decide that we can have challenging discussions and thereby become better surveyors. Keep up the good work.
Jim Hankins, PLS
Via the Internet


Note: Ginther v. Duginger can be found at http://wwwamerisurv.com/docs/GintherVersusDuginger.docx
Kandlik v. Hudek can be found at http://www.amerisurv.com/docs/KandlikVersusHudek.docx
McLeod v. Lambdin can be found at http://www.amerisurv.com/docs/McLeodVersusLambdin.docx

Foose responds:
Thanks for taking the time to share your thoughts. I appreciate the opportunity to hear your take on the case.

I too felt like I was being a bit hard on Justice Mosk. He really was a man of equity as I found out in my research. The biggest challenge I seem to face with the column is that often I am limited to just the info in the case text. I try to filter out any assumptions on my part but I'm sure things appear different to different eyes and minds. Monte Seibel's survey is a great example and you shed an unforeseen perspective on my assumption that it was a retracement survey.

I believe that Seibel's survey was a faithful retracement of the original deeds issued by Brandenburg. I think we've both stretched enough rope to know a difference between deed retracement and a survey retracement as well as understand the original grantor's authority to delineate boundary lines and how that may happen in accordance with a deed. So that's how I arrived at "faithful retracement". I'm not sure I "assumed facts not in evidence" but rather the contrary. My assumption was that there was not an original professional survey of the split where the deeds created the record parcels and the owners were left to their own devices. If I'm reading correctly the fence apparently was not present or part of those original deeds. Your perspective is good and there is an assumption on my part either way.

When I originally read the case I felt that the majority was off base and Justice Mosk hit the mark. I read the case many times and started writing in that flavor until a lightbulb went on. I sensed that the majority sought to protect the stability of boundaries and preserve the integrity of the land records. After all, the descriptions were not broken. Conversely, I also got the sense that occupation followed neither description which seems requisite to an agreement. Regardless, Haak never acknowledged or admitted uncertainty or agreement. That seemed to be Blevin's missing piece of evidence supporting the agreement "claim" or whether it happened inside or outside the courtroom. I also sense from Loeb's work that boundary agreements are somewhat of a last ditch effort to preserve harmony. It seems logical that a competent survey would be an appropriate step to clarifying uncertainty before owners resort to practical locations. I guess that's a "rose colored glasses" sentiment but that was my big "take away" from this case.

Jim Frame, a reader from California offered this regarding my sentiment of "However, I just can't figure why adverse possession was not the primary challenge?" Frame responded "My guess is because California requires payment of property taxes in order to perfect a claim of adverse possession. Since the assessment is made on the land as described, and the description as surveyed does not include the claimed land, the claimant would not have been able to demonstrate payment of taxes and the claim would fail." Regardless, in principle anyway, I think we all caught on to acquiescence as perhaps being a stronger argument than agreed boundary.

Thanks again for your thoughts and please keep in touch!
Jason Foose

A 50Kb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

 
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