Lead Opinion
Opinion
Whеn coterminous landowners are uncertain as to the true location of their common boundary, they may establish that boundary by agreement, pursuant to a legal theory commonly referred to as the “agreed-boundary” doctrine. This case presents the question whether a court should
I.
Plaintiffs E. Jackson and Theressa Bryant and defendants Reed and Jean Blevins own adjoining parcels of real property in Herald, located in a rural portion of southern Sacramento County, east of Galt. The parcels resulted from a division of “Lot 57,” a 10.88-acre lot contained within a 1-square-mile tract of land that was divided in 1909 into 64 parcels, each approximately 10 acres in size. Lot 57, the largest lot within the subdivision, is configured as shown in the following diagram (which is not drawn to scale):
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The original owners of Lot 57, Sheldon and Melda Brandenburger, also were the developers and subdividers of the entire 64-lot subdivision. The subdivision was surveyed in 1909 and was recorded in 1910. The parties to the present dispute do not dispute the accuracy of the 1909 survey. At the
Defendants testified they were familiar with the property for many years prior to purchasing it. Mrs. Blevins, who had lived in the area for more than 50 years, recalled having seen the property many times while riding a covered wagon with her family riding-group in the 1950’s and 1960’s. She recalled from as early as the 1950’s seeing barbed wire perimeter fencing in the area, although the particular barbed wire fence dividing Lot 57 apparently was erected by the Reynoldses at some point after they acquired the east half of Lot 57 in 1965. After defendants acquired the property in 1977 from the Reynoldses, who had informed defendants that the barbed wire fence marked the boundary line, defendants replaced the fence with a sturdier, pipe panel fence erected at the same location.
Shortly after purchasing the west one-half of Lot 57, plaintiffs, in the course of laying out a fence line upon the perimeter of their parcel, discovered a discrepancy between the approximately 5.3 acres to which they believed they were entitled (based upon a description on the tax assessor’s map depicting Lot 57 as 10.63 acres in size, and divided along a line running between the midpoints of the lot’s north and south borders) and the area actually enclosed by the fence, which appeared to be approximately 4.9 acres in size. Defendants were unable to explain the discrepancy. Plaintiffs hired a surveyor, Monty Seibel, the owner of a local surveying business, to identify the true boundaries of the property.
Upon surveying Lot 57, Seibel discovered that the fence erected by defendants, at the same location as the previous barbed wire fence, was not located on the true boundary between the eastern and western halves of the property. In reaching this conclusion, Seibel verified his survey measurements against those set forth on the 1909 subdivision map, finding no significant discrepancies. Employing what he testified was the standard method for locating a property boundary where there has been a subdivision, Seibel identified the location of the boundary separating the parties’ parcels
Seibel’s survey thus identified a strip of land, comprising approximately 0.4 acres, bordered on the east by the true boundary separating the parties’ parcels, and on the west by the fence constructed by defendants. The rightful ownership of this strip of land, contested by the parties, is the subject of the present proceedings. When the Reynoldses owned the east portion of Lot 57, they used this land as the site for a septic tank and leach field, in order to service a recreational vehicle parked there. After acquiring title from the Reynoldses, the defendants made similar use of the land, employing it for the additional purposes of siting a horse corral and pasture, a storage trailer, and a woodlot. Defendants regularly trimmed the eucalyptus trees to which the barbed wire fence had been attached, and maintained the property so as to reduce the risk of fire.
After making unsuccessful attempts to persuade defendants to move the location of the fence that divided Lot 57, plaintiffs sued to recover possession of the disputed strip of land, to quiet titlе, for trespass, and for damages. Defendants cross-complained for declaratory relief to establish the boundaries, to quiet title, for a prescriptive easement, and for damages and fees. After a court trial on the parties’ respective claims, the trial court, among other findings, tentatively found no evidence to support application of the agreed-boundary doctrine to the facts of the present case, stating, at the conclusion of closing arguments: “[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.” Ultimately, however, despite the absence of such evidence, the trial court found that an uncertainty existed as to the location of the true boundary line, and that an agreement to fix the boundary at the fence also existed, so as to support application of the agreed-boundary doctrine, based upon the long-stаnding acceptance of, and acquiescence in, the location of the fence. As a consequence, the trial court concluded that, under the agreed-boundary doctrine, defendants should be awarded title to the disputed area up to the claimed boundary fence. The Court of Appeal affirmed as to this issue and, in view of that disposition,
II.
Plaintiffs’ contention that the disputed area belongs to them is premised upon the uncontroverted survey performed by Monty Seibel in 1987, which, as noted, was not at variance with either the original subdivision map drawn in 1909, when Lot 57 was drawn and subdivided, or with the undisputed deed descriptions of the respective parcels, each of which refers to the ownership of one-half of Lot 57. Plaintiffs further contend that, in the present era of sophisticated surveying techniques and ready access to legal descriptions of real property aided by computer networks and other modem technology, the justification for the agreed-boundary doctrine, upon which the Court of Appeal relied in concluding the disputed area belonged to defendants, has withered and all but disappeared. Plaintiffs argue that the Court of Appeal’s expansive application of the doctrine undermines the significance of legal descriptions and encourages litigation and that, therefore, as a matter of policy, the agreed-boundary doctrine should not apply when the tme boundary is objectively certain—that is, when a reliable legal description of the tme boundary exists. Accordingly, they urge this court to narrow the aрplication of the doctrine to only those cases in which “legal records fail to settle a boundary dispute.” (Mesnick v. Caton (1986)
In response, defendants contend the disputed area rightfully belongs to them, noting that the barbed wire fence separating the parcels had stood for several years without controversy as the apparent boundary between the west and east “halves” of Lot 57. Defendants contend the Court of Appeal correctly held it was reasonable, in view of the long-standing presence of the fence, to infer that the parties’ predecessors in interest were uncertain as to the location of the tme boundary separating the parcels, and agreed to rely upon the fence as the boundary. Thus, defendants contend, the Court of Appeal properly applied the agreed-boundary doctrine.
As we shall explain, we reject defendants’ contentions. In our view, the Court of Appeal adopted an unduly expansive interpretatiоn of the agreed-boundary doctrine and improperly rejected the analysis set forth in other, well-reasoned Court of Appeal decisions that have held the doctrine is not properly applicable in cases, such as this one, in which there is no evidence
Notwithstanding the conclusion we reach in this case, we decline to limit application of the agreed-boundary doctrine to instances in which existing legal records are inadequate to settle a boundary dispute. As previous cases have explained, such an inflexible rule would risk destabilizing long-standing agreements—made in good faith by coterminous property owners in order to resolve uncertainty as to the location of their common boundaries— that might, for any one of several reasons, be at variance with legal property descriptions or survey results. Instead, we reaffirm the vitality of the requirements necessary to establish the applicability of the agreed-boundary doctrine, set forth in Ernie v. Trinity Lutheran Church (1959)
A.
The agreed-boundary dоctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed. One early case thus explains the basis for the agreed-boundary doctrine: “[T]he rule has been established that when such [coterminous] owners, being uncertain of the true position of the [common boundary described in their respective deeds], agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location 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, 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
Although the agreed-boundary doctrine is well established in California, our case law has recognized that the doctrine properly may be invoked only under carefully specified circumstances. As this court stated in Ernie v. Trinity Lutheran Church, supra,
In the years since we reiterated in Ernie v. Trinity Lutheran Church, supra,
B.
In the present case, because defendants claimed title to the disputed strip of land under the agreed-boundary doctrine, they had the burden of proving each element necessary to establish the agreed boundary, including an agreement between the coterminous landowners to fix their common boundary at an agreed-upon line. Plaintiffs contend defendants failed to meet their burden of proving the existence of such an agreement. The Court of
Armitage v. Decker, supra,
The court in Armitage, like the court in a similar case, Mesnick v. Caton, supra,
In our view, the Court of Appeal in the present case incorrectly dismissed the sound logic set forth in Armitage. Although in certain circumstances the long-term acceptance of a fence as a boundary, in conjunction with the other pertinent factors we identified in Ernie v. Trinity Lutheran Church, supra,
A comparison of the facts of the case before us with those underlying Ernie v. Trinity Lutheran Church, supra,
In the present case, by contrast, 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. Although the presence of the fence since at least 1977 suggests a lengthy acquiescence to its existence (on the part of plaintiffs’ predecessors in interest), that circumstance alone did not nullify Ernie’s other requirements—namely, that there be an uncertainty as to the location of the true boundary when the fence was erected, and an agreement between the neighboring property owners to employ the location of the fence as the means of establishing the boundary. (
C.
We are aware of certain judicial authority, emanating from other jurisdictions, supporting the proposition that a conveyance of the “west half” and “east half” of real property does not necessarily signify that a mathematically equal division has been created, and that therefore such terminology may create an “uncertainty” as to the locatiоn of the common boundary of the parcels. Yet these decisions are patently distinguishable from the present case. (See Brewer v. Schammerhom (1958)
As noted previously, the record contains absolutely no evidence supporting the premise that the barbed wire fence was erected to resolve uncertainty on the part of the parties’ predecessors in interest as to the true location of the boundary separating the properties. As others aptly have observed, barriers are built for many reasons,
Thus, a fence—which, in Ernie v. Trinity Lutheran Church, supra,
Were we to hold that, in the absence of the explicit requirements set forth in Ernie v. Trinity Lutheran Church, supra,
For the foregoing reasons, we reject the Court of Appeal’s application of the agreed-boundary doctrine to the facts of this case. In our view, an unduly broad application of the doctrine tacitly encourages 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 induces property owners to resort to the courts to resolve their boundary disputes. We should not promote such a potentially litigious alternative. Guided by the principles set forth in Ernie, and mindful of the objectively certain legal description of defendants’ property and the absence of any evidence suggesting that uncertainty as to the true boundary led to the creation of a “fence-made” agreed boundary, we approve the reasoning set forth in Armitage v. Decker, supra,
The judgment of the Court of Appeal is reversed. Because, in view of its disposition of the agreed-boundary issue, that court did not reach plaintiffs’ other challenges to the judgment of the trial court, the case is remanded to the Court of Appeal with directions to address plaintiffs’ remaining сontentions.
Lucas, C. J., Arabian, J., Baxter, J., and Werdegar, J., concurred.
Notes
Although the deed evidencing the Brandenburgers’ conveyance of the west half of Lot 57 to the Haaks is not contained in the record, and therefore its exact language has not been adduced, the parties do not dispute that the Haaks received the west one-half of the parcel. Nor is there any dispute as to the accuracy of subsequent deeds, which are contained in the record and refer to the “west half” of Lot 57.
Monty Seibel’s survey revealed Lot 57 to be 10.88 acres in size; as noted above, the assessor’s map indicated the lot was 10.63 acres in size. This discrepancy fails to establish that prior owners were uncertain as to the location of their common boundary, or that they agreed to rely upon the barbed wire fence to identify that boundary. Seibel opined that the discrepancy resulted simply from the assessor’s not possessing sufficient information as to the location of the true boundary, thus causing the assessor to draw a north-south line at the center of Lot 57 as a matter of “convenience” for assessment purposes. An employee of the county tax assessor’s office, who testified on behalf of plaintiffs, in substance confirmed this view. Therefore, the discrepancy between Seibel’s survey and the county tax assessor’s information has no bearing upon defendants’ contention that the fence dividing Lot 57 constitutes the actual boundary between the west and east halves of the lot.
See Frost, Mending Wall (1914) (“Before I built a wall I’d ask to know/What I was walling in or walling out.”).
Dissenting Opinion
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 uncеrtain 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)
I
The fundamental issue in this case is which type of boundaries are entitled to more rеspect 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—
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”
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)
Even if the surveyor is diligеnt, he may nevertheless fail to find the correct location of a landmark or comer. (See Albrecht v. U.S. (10th Cir. 1987)
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,
II
The majority state that their holding is meant to “reaffirm the vitality” (maj. opn., ante, p. 54) of our holding in Ernie, supra,
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)
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
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 strеss 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,
Second, the landowners could simply agree to build some physical barrier in а 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 loсation 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
I would affirm the judgment of the Court of Appeal.
Kennard, J., concurred.