Decided GuidanceŚCase Examinations: Tresemer v. Albuquerque Public School Dist. 619 P.2d 819 (N.M. 1980)
Written by Jason E. Foose, PS   
Saturday, 30 June 2018

A 1.785Mb PDF of this article as it appeared in the magazineŚcomplete with imagesŚis available by clicking HERE

This month we're off to the land of enchantment and that is the most truthful state slogan I know. Amidst the vast natural beauty and vistas grandes are steaming pots of green chili stew and warm fresh tortillas. This has nothing to do with land surveying except this land surveyor has got to eat and there is nothing more heaven sent than a huge bowl of green chili stew and warm tortillas after a long hard windburned day of surveying. Okay, okay, okay, enough about food let's dive into the case.
Tresemer v. Albuquerque Public School District (School) was heard by the New Mexico Supreme Court in 1980. The case was "...an appeal from the district court's decision to apply the doctrine of acquiescence to establish plaintiff's boundary along the line where the vestiges of an old fence lay."...and "spoiler alert" the Supreme Court reversed the lower court's decision. This appeal was pretty "cut n' dried". Surveys were employed, legal descriptions were included, chains of title were offered, natural monuments were recognized and an old fence was introduced in court. Let's see how this evidence package played out.

Starting with the plaintiff's chain of title the Supreme Court observed that the plaintiff's surveyor maintained the historic description as follows: "A certain tract of land in School Dist. # 7 Cedar Crest of Bernalillo County, State of New Mexico, bounded on the North by the Tijeras Canyon Arroyo, on the East by Elfigo Sanchez, on the South by the Cedro Canyon Arroyo and on the West by State Road # 10, and being a triangular piece of land, containing 2 acres more or less." The Court went on to point out how the surveyor employed the description further noting "There was no mention of an old fence in any of these deeds. Consequently plaintiff's surveyor followed the deed descriptions and set the boundary to one-half the width of the arroyo." So the plaintiff has a functional legal description that is "re-traceable" on the ground and has some solid calls. Let's flip sides and talk about the defendant's survey for a minute. The Supreme Court said this "...that the survey done by the Land Grant's surveyor was based in part on the location of an old barbed wire fence, not standing when the survey was done..." I gather from the evidence that there may have been "vestiges of an old fence" when this survey was done. So in hindsight it looks like the defendant's surveyor did not retrace Tresemer's description but arbitrarily chose a position for the line, sound reasonable?

We all see the same legal description here and there's not a lot of ambiguity in the words. We are looking for a road, two arroyos, and Elfigo Sanchez' west line all balled up into about two acres. In truth I believe this is a very strong description...as long as everything fits between, oh I don't know, maybe an acre and a half to somewhere under three? It's pretty hard to miss an arroyo, and if roads do change there's a good chance of having some public record. Sanchez' line might not be apparent but we'll find the deed and, of course ask the owner, who also happens to be a witness, for permission to enter his land as well as if he knows where the line might be. Easy peasy and no math involved.

Okay, so back on point, what or who created this conflict? It's time to stop, drop, and roll here folks. The evidence points to...ugh...the first step is admitting it...ohh..the evidence points to a...ouch...you guessed it, a surveyor. It appears that somehow the defendant's surveyor jumped the gun an applied the doctrine of acquiescence without the act acquiescence or a court's recognition of the act. I said it that way because he could have gotten lucky and been right if the evidence actually demonstrated the act. He's still outside of his authority and regardless, the surveyor for some reason felt compelled to profess that all of the conditions were met and he apparently reapportioned the land accordingly. That "reapportion" part sounds more like "conveyance" or "re-platting" to me than "retracement". It also sounds like the surveyor did more than identify the differences between deed calls and evidence of occupation. He adjusted a boundary without authority. I'm not judging here, I respect the surveyor's opinion and I'm sure he believed he was doing the right thing without fraud or deceit. I will however, capitalize on his mistakes and with hindsight advance our professional knowledge base.

Okay, back to the plaintiff's surveyor. Please get a drum roll going in your head.... Aaaaand now it's time time present The Monte Seibel Hole in One Retracement Award tooooooo...the plaintiff's surveyor! I'm sorry I don't know this guy's name but he nailed it! Tresemer is another example of things working right because of the surveyor. So Decided Guidance has now unearthed two examples of a survey "gone right" and examples to follow rather than avoid. Dilly Dilly!

Needless to say the Supreme Court overturned this decision to the plaintiff. It appears that the record description was strong and that the evidence of predecessors in title acquiescing to a fence line did not meet the standard of care. From our perch we also may be seeing over reach in a survey through a non-authoritative application of a legal principle. I like the way the case text lays out the details. Like good green chili stew there's a bunch of flavors in every bite. The decision contemplates acquiescence, water boundaries, natural v. artificial monuments, chains of title, bounds descriptions, and the quasi-judicial function of a surveyor in retracement work all in one steaming bowl o' jurisprudence.

So we wrap things up in the land of enchantment with a little bit of name dropping in "the ABQ". God bless you Mr. Anthony D. Trujillo for your civic dedication. Among many community activities, Mr. Trujillo started and raised funding for the very first of its kind in the nation--The Symphony for Autism; a private concert for children and parents who are managing life with Autism. The Trujillo family has also been a part of our surveying and mapping support system for over half a century! Our profession offers it's heartfelt appreciation to Anthony, his family and all the folks of Holmans, Inc. for their benevolence and philanthropy.

Note: A pdf copy of this case is available at http://www.amerisurv.com/PDF/TresemerVersusAlbuquerquePublicSchoolDist.pdf

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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:
The Barbershop Barrister

So what the heck is an arroyo? Well, in other places it's called a gully or ravine. I describe it as the place that water runs when it rains...and boy howdy when it rains in the southwestern desert it's a real gully washer! Yeah, see what I did there? Here's how an arroyo works. They are cut fast from erosion so they have a really square cross section and near vertical walls as deep as a person is tall or even deeper. Long story short, they are little canyons.

The arroyos in Tresemer are more than just drainage features and here we unwrap this month's plate full of steaming tamale powered knowledge. The New Mexico Supreme Court deemed these as non-navigable waterways which places the ownership to the center of the arroyo. We may not find a lick a' water runnin in September but we are dealing with a waterway. Yes, right in the middle of the desert and drier than a popcorn fart.

Arroyos are natural monuments and thus hold precedence over artificial monuments like fences, but why? Well, before we google this or search wiki-media for sub-professional op-ed blog blather, let's check with an authoritative source. Donald A. Wilson authored the book Interpreting Land Descriptions. This is a must have for every retracement surveyor. Don assembled and references sixteen cases and numerous sub referenced cases that demonstrate many courts preference for natural monuments over artificial monuments. I quote Don's citation tied to Vermont Marble Co. v Eastman 101 A. 151, 91 Vt. 425 "The reason is that there is greater certainty and less likelihood of a mistake in calls of this nature." Now before we go all "ding-dong-the-witch-is-dead" we need to read the fine print. The citation continues on with the following: "This rule, like any of other rules, is not imperative, absolute, or inflexible, nor is it of universal application. It is a rule of construction, adaptable to circumstances, or one of evidence." So there you have it. To all of you engineery type surveyors looking for the AASHTO Manual on Uniform Boundary Retracement Survey Control Devices, newsflash: There ain't one and that's why the state licenses me, over you, to perform boundary retracements. The heavy hitters of our profession Wilson, Robillard, Brown, and many others have spent countless hours, nay, years compiling and studying case law that might just help us poor bob danglers shore up the evidence packets supporting our conclusions.

So a few thoughts on Tresemer. What's missing from this legal description? Well, I'm pretty sure the paperheads and monitor monkeys down at the tax map office are going to blow an o-ring because there are no dimensions. I'll admit there's some entertainment value when paraprofessionals are pushed beyond the limits of their software. It's like trying to buy something at Big Box Mart that won't run through the scanner. All hell breaks loose, lines back up, tempers flare, and you and your client are the poor guys in line waiting on the price check. All fun and games until somebody loses an eye, right? Anyway, we don't really need dimensions to understand a legal description, now do we?

We recall Monte Siebel's survey of a functional description in October 2017 TAS. In my case research I am repeatedly drawn back to some notion that if the legal description ain't broken then there's no need to agree on an alternate description. Perhaps it's better stated in a question. Ask yourself "Is the legal description broken?" The evidence you apply surrounding this question might just help the lawyer folk sort through the larger question surrounding a cause for an agreement. Perhaps, identifying a dysfunctional legal description prior to you signing a contract will prompt your client to find resolution before you finalize your survey...or at least keep you out of a bad contractual arrangement.

I'm almost offended that the lower court in Tresemer did not respect the plaintiff's survey but the court understandably was threshing through the evidence and making its best effort. "The district court found that the old fence described in defendant's survey constituted the boundary under the doctrine of acquiescence." I know, I know, you're thinking "look at old goody two shoes Foose on his high horse", right? Well, think about this una momento and I quote: "Since defendant is relying on the doctrine of acquiescence to establish its boundary line, it has the burden of proving each of the elements of the doctrine." The plaintiff presented a valid legal description, supported by a good survey, founded on sound principal and readily identifiable on the ground. The legal description had some longevity in the chain of title as well. That's really strong medicine right there and at least in my pea brain indicates "it ain't broke, there's no need to fix it" and thus offers no motive to acquiesce to anything. Furthermore, and anybody feel free to jump right in and tell me I'm full of McDonald's here, but doesn't it seem like the court is figuratively shredding all of the plaintiff's evidence in order to prop up the defendant's marionette show? I mean this is like paper, scissors, rock stuff here except the plaintiff has a flame throwing jackhammer. I'm not sure how the lower court saw the defendant overcoming this burden on an argument of a soft doctrine like acquiescence, but what do I know?

I'm not sure acquiescence is achieved if either party knows where the true boundary line falls. Gnaw on this a while. Even if an owner doesn't mind accepting an alternate line, isn't he knowingly transferring property and obligated to follow the laws of conveyancing? So I can't quite wrap my head around the doctrine of acquiescence standing without uncertainty. I don't think casual uncertainty or abandoning the value of a land survey to save a few bucks meets the standard. I also see that acquiescence to some degree needs agreement although the two words are not synonymous in boundary law. Perhaps it's better to flip polarity and say that acquiescence is nurtured in the absence of objection. It also seems like the folks who acquiesced should not even be in court. After all, they are acquiescing so they probably don't even have a foul smell about the boundary. It seems like the fight happens farther down in the chain of title after someone breaks the chain of acquiescence. So I suppose that's the evidence the court is weighing in the fight. So if you think you're good enough to call out acquiescence on your survey you better show all of the evidence and be prepared to show up in court to seal the deal. Even if a surveyor has the quasi-judicial know how to identify acquiescence on the ground, it still takes a court to affirm the evidence.

For further reading google James H. Backman's "The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy".

A 1.785Mb PDF of this article as it appeared in the magazineŚcomplete with imagesŚis available by clicking HERE