Bryant v. 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.

I

The fundamental issue in this case is which type of boundaries are entitled to more respect under the law: the boundaries to which the adjacent landowners have themselves agreed, or the boundaries assertedly described in legal documents. The agreed-boundary doctrine is intended to give the former priority over the latter. “The object of the [agreed-boundary doctrine] is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable” by giving legal effect to boundaries that adjacent landowners have designated by building some physical barrier— *62 such as a fence—and leaving that physical barrier in place for many years. (Young v. Blakeman (1908) 153 Cal. 477, 482 [ 95 P. 888 ]; see also Mello v. Weaver, supra, 36 Cal.2d 456, 459-460 ; Martin v. Lopes (1946) 28 Cal.2d 618, 622-627 [ 170 P.2d 881 ]; Hannah v. Pogue, supra, 23 Cal.2d 849, 856-857 ; Finley v. Yuba County Water Dist. (1979) 99 Cal.App.3d 691, 699 [ 160 Cal.Rptr. 423 ].) The doctrine is premised on the belief that the expectations and understandings of adjacent landowners regarding the location of their boundary are vitally important and that courts should defer to these expectations and understandings whenever possible; it does not contemplate that courts should disregard landowners’ expectations merely because there is some legal document that purports to place the boundary in some other location. The agreed-boundary doctrine thus reflects the notion expressed by Oliver Wendell Holmes over a century ago that “The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, . . .” (Holmes, The Common Law (1881) at p. 41.)

The majority’s holding guarantees that a contrary result will occur. By requiring direct evidence of uncertainty and agreement in cases in which some document purports to describe the true boundary, the majority are ensuring that in most cases an agreed boundary will not prevail. Often it will be virtually impossible to prove that the individuals who built a physical barrier did so expressly to resolve a dispute about the location of their common boundary; indeed, as in this case, it will often be uncertain who actually constructed the physical barrier, much less whether it was built to resolve a dispute regarding the location of a boundary. (See Backman, The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy (1986) B.Y.U. L. Rev. 957, 964-965 [direct evidence of agreement is often unavailable because most agreements are oral and the original owners may no longer be in possession, may not remember the agreement, or may not admit they made it].) The majority’s holding therefore does much more than modify the subtleties of the standards of proof; it ensures that in most cases deeds and maps will be given priority over agreements long accepted between adjacent landowners. For this reason, in cases in which a legal description is available, the majority’s newly created rule turns on its head the central policy underlying the agreed-boundary doctrine, i.e., that agreements between adjacent landowners are entitled to deference.

The majority also put too much faith in legal descriptions. The mere fact that a deed or map contains a legally adequate written or pictorial description of a boundary does not mean that an actual physical boundary assertedly laid out in accordance with that description will so accurately reflect the “true” *63 boundary that courts should give it priority over the agreed boundary. The degree to which a physical boundary assertedly laid out in accordance with an abstract written or pictorial description in a deed or map reflects the true boundary depends a great deal on the individual who actually marks the physical boundary on the land. Even if this task is performed by a surveyor, both courts and experts in the field acknowledge that the resulting physical boundary may not accurately reflect the true boundary.

Surveying is a profession that depends to a great extent on the skill of the surveyor. (Robillard, Clark on Surveying and Boundaries (6th ed. 1992) p. 23; Brown, Boundary Control and Legal Principles (3d ed. 1986) p. 1.) To perform a legally reliable survey, the surveyor must be skilled in “the science of land measurements, ... the laws and customs that define the boundaries of real property, and ... the art of evaluating the evidence needed to prove the location of a boundary.” (Brown, Boundary Control and Legal Principles, op. cit. supra, at p. 1; see Killian v. Hill (1990) 32 Ark.App. 25 [ 795 S.W.2d 369, 370 ] [“Surveying has been described both as an art . . . and as a science, . . .”].) The surveyor’s task is particularly difficult if important landmarks or comer monuments have been “lost” or “obliterated” with the passage of time. (See Maplesden v. United States (9th Cir. 1985) 764 F.2d 1290, 1291-1292 [noting the distinction between “lost” and “obliterated” comer markers and illustrating the difficulties posed by each]; Vinyard v. Vaught (1985) 138 Ill.App.3d 641 [ 92 Ill.Dec. 888 , 485 N.E.2d 1131 ] [illustrating difficulty of procedures for reestablishing obliterated comers]; Milligan v. Milligan (Me. 1993) 624 A.2d 474 [although deed was not ambiguous, surveys conflicted because of missing monument]; Robillard, Clark on Surveying and Boundaries, op. cit. supra, at pp. 490-578 [discussing at length the complex techniques used to locate missing landmarks and comer monuments]; Brown, Boundary Control and Legal Principles, op. cit. supra, at p. 372 [to locate lost monuments a surveyor may need to “interview [] former landowners or parties who have . . . knowledge [of the location of the landmarks], interview[] other surveyors, or examin[e] public records”].)

Even if the surveyor is diligent, he may nevertheless fail to find the correct location of a landmark or comer. (See Albrecht v. U.S. (10th Cir. 1987) 831 F.2d 196, 199 [sufficient evidence to support finding that surveyor incorrectly marked “meander comers” and “meander lines”]; Hansen v. Stewart (Utah 1988) 761 P.2d 14, 18-21 (dis. opn. of Howe, Associate C. J.) [illustrating the complexity and uncertainty of the techniques used to locate comers].) For example, one expert cites an instance in which 12 different surveyors located a comer at a particular spot, and only after the 13th surveyor used a metal detector to locate the original comer monument *64 was it discovered that the comer was in fact some 70 feet away. (Brown, Boundary Control and Legal Principles, op. cit. supra, at p. 372.) According to this commentator, such incidents have occurred in every state. (Ibid.) In addition, as we have noted, the exact physical locations of a boundary may be uncertain even if the true locations of the landmarks and comers are known. (See Young v. Blakeman, supra, 153 Cal. 477, 480-481 [When boundary is located a specific distance from a fixed object, “Experience shows that . . . measurements [of that distance], made at various times by different persons with different instruments, will usually vary somewhat. . . . If the position of the line always remain[s] to be ascertained by measurement alone, the result [is] that it [is not] a fixed boundary, but [is] subject to change with every new measurement. Such uncertainty and instability in the title to land [is] intolerable."].)

In light of the complexity of the mies of surveying, the skill necessary to apply them correctly, and the possibility that different surveyors will reach different conclusions about the location of a boundary even if there is a precise description of its location in a deed or map, it is impractical to disregard adjacent landowners’ long-standing agreements regarding the physical location of the boundary merely because such a document is available. Also, if the boundaries set by surveyors were to be given priority over those agreed to by the landowners, courts and perhaps juries could often be compelled to determine which of two or more conflicting surveys was the most accurate. Both courts and juries have been forced to settle such disputes in the past, and experience reveals it is no easy task. (See, e.g., Finley v. Yuba County Water Dist., supra, 99 Cal.App.3d 691, 695 ; Link v. Cole Investment Co. (1962) 199 Cal.App.2d 180, 182 [ 18 Cal.Rptr. 441 ]; Hansen v. Stewart, supra, 761 P.2d 14, 15 [jury trial devoted solely to identifying the physical location of a single comer].)

II

The majority state that their holding is meant to “reaffirm the vitality” (maj. opn., ante, p. 54) of our holding in Ernie, supra, 51 Cal.2d 702, 707 , that a party asserting an agreed boundary must prove that there was “[1] an uncertainty as to the tme 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.” Curiously, however, the majority do so by limiting the application of our statement in Ernie that “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 *65 their lands.” ( Ernie, supra, 51 Cal.2d 702, 708 ; see also Mello v. Weaver, supra, 36 Cal.2d 456, 460 ; Hannah v. Pogue, supra, 23 Cal.2d 849, 856 [citing earlier cases].)

I too would reaffirm our holding in Ernie-, however, I would reaffirm it in its entirety, including the inferences of uncertainty and agreement. These inferences were sound when we announced our decision in Ernie in 1959, and they remain sound to this day, whether or not a legal description is available. When an individual erects a physical barrier in approximately the same location as the boundary between his property and that of his neighbor, one of three matters is likely to occur. First, the adjacent landowner may determine that the physical barrier is actually on his own property. Second, the adjacent landowner may erroneously believe that the physical barrier accurately represents the true boundary between the two parcels. Third, the adjacent landowner may not be sure where the true boundary is, but may believe that it is in approximately the same place as the physical barrier.

In the first scenario, the adjacent landowner would almost certainly demand that the barrier be removed; therefore, there would be no acquiescence. In the second and third scenarios, the adjacent landowner probably would allow the physical barrier to remain; therefore, there would be acquiescence. Accordingly, if there has been long-term acquiescence in the presence of a physical barrier, it is reasonable to infer that, at the time it was built, either the second or third scenario occurred. Under either the second or third scenario, there is sufficient uncertainty regarding the true physical location of the boundary to satisfy the first element of Ernie . (See Nusbickel v. Stevens Ranch Co. (1921) 187 Cal. 15, 19 [ 200 P. 651 ] (Nusbickel) [“The word ‘uncertainty’ . . . convey[s] the idea that at the time of the location of the division line neither of the coterminous owners knew the true position of the line on the ground” and the requirement is satisfied if the landowners believe they know where the physical boundary is but are mistaken.]; Kunza v. Gaskell (1979) 91 Cal.App.3d 201, 209 [ 154 Cal.Rptr. 101 ] [“it has been consistently held that a ‘dispute or controversy is not essential’ to the required ‘uncertainty’ ”]; see also Ernie, supra, 51 Cal.2d 702, 708 [“The line may be founded on a mistake.”], citing Nusbickel, supra, 187 Cal. 15, 19 .)

Similarly, in the first scenario there would be no express or implied agreement between the landowners that the physical barrier represented the true physical boundary between the parcels, and the second element of Ernie would not be satisfied. However, if the second and third scenarios occur and the adjacent landowner allows the physical barrier to remain, it is reasonable to infer that he has agreed, either expressly or impliedly, that it represents *66 the true boundary, thereby satisfying the second element of Ernie . (See Kraemer v. Superior Oil Co. (1966) 240 Cal.App.2d 642, 651 [ 49 Cal.Rptr. 869 ] [“It is not necessary that the agreement between the parties be an express one. It may be inferred or implied from their conduct, . . .”].)

Of course, the evidentiary force of these inferences will vary depending on the facts of each case. For example, they would be entitled to less weight if the physical barrier was a substantial distance from the true boundary given the size of the parcels. They may also be entitled to less weight if there is evidence that the physical barrier was built for some purpose other than to mark a boundary. (See maj. opn., ante, p. 59 [suggesting that a physical barrier may be erected for “aesthetics, the control of livestock, and the need to constrain young children from wandering too far from a residence," and its location may be influenced by “the suitability of the terrain to accept the fence, the presence of nearby landscaping, the skill of the builder, and even the subsequent movement of the fence through disrepair, pressure exerted by livestock, or loss of lateral or subjacent support”].) Finally, these inferences may be less persuasive if the material used to build the physical barrier is not of a type likely to be used to mark a boundary. However, unless there is contrary evidence sufficient to outweigh the evidentiary force of these inferences, they must prevail.

III

The majority suggest that an “expansive interpretation of the agreed-boundary doctrine . . . clearly would add unnecessary expense and stress to the prospect of real property ownership in California .... [and would] encourage coterminous landowners to resolve their disputes ... by erecting imperfect barriers, ‘drawing lines in the sand,’ or hauling neighbors into court, [and not] by resorting to title searches, deed descriptions, and othér objectively certain methods that afford the parties a superior opportunity to reach amicable, nonlitigious resolution of their disputes.” (Maj. opn., ante, p. 60) The majority also conclude that such an interpretation would “tacitly encourage[] a lack of due diligence on the part of property owners by tempting them not to consult legal descriptions in an effort to reach amicable resolution of their disputes, and instead [would] induce[] property owners to resort to the courts to resolve their boundary disputes.” (Maj. opn., ante, p. 60, italics in original.)

I do not believe that the reading of Ernie proposed in part II of this dissent would produce the results described by the majority. If a dispute arises between adjacent landowners regarding the location of their common boundary, they could take one of two steps. First, as the majority seem to suggest, *67 they could hire a surveyor—or, more likely, each could hire his own surveyor—to determine the “true” location of the boundary based on the descriptions in their respective deeds. If the surveyors agree on the location of the boundary, the dispute would be resolved. As discussed in part I of this dissent, however, each surveyor may reach a different conclusion and neither survey may be accurate. The landowners would then either have to litigate the matter—in which case they would incur substantial legal expenses and the courts would be required to determine which survey is accurate—or reach a settlement, which the landowners could have done in the first place. In either case, the landowners would have incurred the expense of hiring a surveyor to locate the true physical boundary.

Second, the landowners could simply agree to build some physical barrier in a location that reflects a compromise between their respective understandings regarding the physical location of the true boundary. A broad reading of the Ernie requirements facilitates such informal dispute resolution by ensuring that the landowners’ agreement will be given legal effect even though there is no direct evidence that a dispute and settlement occurred. Under such a rule, the landowners would incur only the expense of building the physical barrier, which may serve a variety of other useful purposes, and would not be forced to incur the additional expense—in the form of legal costs—of making a record of their dispute and agreement so that they or their successors in interest could sustain their burden of proof in court many years in the future. In addition, the landowners’ successors in interest would not suffer prejudice because, even without documentation of the dispute and resolution, the presence of a physical barrier would put them on notice of the location of the agreed boundary.

Far from encouraging a “lack of due diligence” or a resort to “frontier justice,” the second approach, which the broader reading of Ernie facilitates, thus allows adjacent landowners to resolve their disputes easily without resort to attorneys, to surveyors, or to the courts, and ensures that their mutual understanding regarding the location of their boundary, as evidenced by their long-term acquiescence in a physical barrier, will be respected and given legal effect.

IV

In this case, it is undisputed that the physical barrier between plaintiffs’ and defendants’ property stood in the same location for many years in excess of the applicable statute of limitations, thereby satisfying Ernie's long-term acquiescence requirement. It was therefore reasonable to infer the two remaining Ernie requirements—uncertainty and agreement. Notwithstanding *68 any contrary evidence in the record, the inference of agreement and uncertainty arising from the parties’ long-term acquiescence is sufficient to support the judgment. (See Hannah v. Pogue, supra, 23 Cal.2d 849, 856-857 [inference of agreement and uncertainty arising from long-term acquiescence sufficient to support judgment]; see generally, Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [ 45 P.2d 183 ].)

I would affirm the judgment of the Court of Appeal.

Kennard, J., concurred.