Boundary By Agreement Requires Specific Circumstances

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Boundary By Agreement Requires Specific Circumstances

by Bob Hunt
Thursday, July 25, 2013

Many years later, when a subsequent owner acquires one of the properties, he questions the location of the fence and orders a survey. The survey shows that the fence is inaccurately placed and that it encroaches on the new owner's property. The new owner wants the surveyed boundary to be established. His neighbor argues that the doctrine of boundary by agreement should control, and that the fence should remain. Who is likely to prevail?

If the property is in California, it's probably the new owner who will prevail. The case of Martin v. Van Bergen (Second Appellate District) is instructive.

Martin owned a 240 acre parcel of land, improved with a residence and a vineyard, that they acquired in 2005. Van Bergen and Alsudiary owned a contiguous parcel consisting of a residence and an almond orchard. Alsudiary had obtained title in 1997; Van Bergen was added to title in 2005. The common boundary between the parcels is about 1,300 feet long. A fence runs over Martin's parcel for part of that 1,300 feet. The area between the boundary and the fence is planted with almond trees. In other words, Van Bergen's almond orchard encroached onto Martin's parcel.

A former occupant of the Van Bergen property testified that she moved there with her family in 1945, when she was 15 years old. In 1947 her family planted the almond orchard. At the time the orchard was planted, there was a cattle fence where the present fence is located. They and their neighbor worked to replace that fence with a deer fence. Both property owners were certain that the fence marked the boundary.

The property was surveyed in 2005. Surveys showed the fence was not on the boundary. According to the surveys, establishment of the true boundary would result in a loss of 8 to 10 percent of the almond orchard. The orchard produced about 400 pounds of almonds a year, of which 25 percent were sold commercially. Relocation of the boundary would have resulted in a loss of about 40 pounds of almonds annually.

Martin brought a quiet title action. The court found in his favor and quieted title on the basis of the surveys. Van Bergen appealed.

Van Bergen contended that the facts showed that a boundary by agreement had been created. But the appellate court rejected this argument and affirmed the trial court's decision.

The appellate court looked to an earlier California Supreme Court ruling which had said, "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." Application of the doctrine requires three circumstances:

  • There must be an uncertainty as to the true boundary line.
  • There must be an agreement between the owners establishing the line.
  • There must be 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.

    The Supreme Court had held that the agreed boundary doctrine "should not be applied where there is no evidence that the neighboring owners entered into an agreement to resolve a boundary dispute and where the true boundary is ascertainable from a legal description contained in an existing deed or survey."

    In this case, there was no evidence of such an agreement (resolving a boundary dispute) between the owners more than 65 years ago. As the court pithily put it, "Missing from defendants' case, among other things, is an essential element - an agreement." Moreover, it was and is possible to determine the correct boundary. Finally, the court found that Van Bergen would not suffer substantial loss. So the doctrine does not apply.

    The New Englander told us that "Good fences make good neighbors." It might be added that the fences should be well placed.





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