BRYANT v. BLEVINS (1993)

This is an appeal from a judgment after a court trial resolved a boundary dispute on the ground that a fence line was an agreed boundary.   E. Jackson and Theressa Bryant (the Bryants) appeal contending, among other things, (1) that the trial court erred in applying the agreed boundary doctrine when it has always been possible to fix the boundary from the deed descriptions by means of a survey and (2) that if the doctrine is applicable there is insufficient evidence of elements of an agreed boundary to uphold the judgment.

We will apply the settled California Supreme Court case law and decline to follow the disparaging comments on that law in Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 228 Cal.Rptr. 779 and Armitage v. Decker (1990) 218 Cal.App.3d 887, 267 Cal.Rptr. 399.   We will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

The defendants in the action, Reed and Jean Blevins (the Blevinses), own a parcel adjoining that owned by the Bryants.   The adjoining parcels resulted from a 1909 division of a 10–acre lot in a 64–lot subdivision of a rural portion of Sacramento County east of Galt.   The original lot is configured as shown in the following diagram:

The original lot is not a rectangle.   The east and west boundaries are not parallel and neither runs exactly north and south.

The owner of the lot at the time the subdivision was established conveyed the west half of the lot to members of the Hock family, the Bryants' predecessors in interest.   The deed was not adduced and its exact language is not in the record.   After a series of transfers the Bryants acquired their portion of the land in November 1986.   In June 1987, Mr. Bryant, in the course of laying out a fence line around the perimeter of the land, discovered a discrepancy between the 5.32 acres to which he believed he was entitled (based upon a description on the tax assessor's map) and the area enclosed by the fence.   He hired a surveyor, Monty Seibel, to ascertain the boundaries of the property.

Seibel testified as follows.   He is the owner of a local land surveying business.   In surveying the Bryants' property he used “the standard method which is used to determine where a boundary line exists when a certain parcel has been split up in a subdivision.”   Seibel could not say “what law says” that this is the manner of determining the boundary.   He determined the boundary between the parcels by dividing the property into two portions of equal area by means of a line drawn parallel to the outside boundary of the first parcel conveyed.   As shown in the diagram, using Seibel's methodology the boundary between the two parcels is east of the existing fence, approximately 42 feet east on the north border and approximately 11 feet east on the south border.

The tax assessor's map shows the parcels as if the original lot were divided along a line running between the midpoints of the north and south borders.

The original owners of the 10–acre lot conveyed the Blevinses' parcel to the Reynoldses in 1965, under a deed describing the parcel as “the East one-half of [the original lot].”  The Reynoldses conveyed it to the Blevinses in 1977.   Mrs. Blevins had lived in the area more than 50 years.   She had ridden by the parcel many times with her family riding group in the 1950's and 1960's and had noted perimeter fences of barbed wire.   When the Blevinses acquired the parcel from the Reynoldses an old rusty barbed wire fence ran along a line of eucalyptus trees and posts, ostensibly dividing it and the Bryants' parcel.   The Blevinses were told by the Reynoldses that the fence marked the boundary line.   The Blevinses replaced the barbed wire fence with a pipe panel fence in the same location.

When the Blevinses acquired their parcel a 10 to 12–foot strip on the east border was fenced off.   They were told that this was a fire lane required for fire department access to cope with the fire danger from the eucalyptus trees.   Mrs. Blevins testified that it had been her understanding that, of these two fences, the west fence marked the boundary of the property.

While the Reynoldses owned the parcel they constructed a septic tank and leach field in approximately the middle of the ostensible western border on the portion of land between the claimed boundary fence and the boundary line as determined under Seibel's methodology.   They used the facility to service a recreational vehicle in which the caretaker of the property resided.

The Blevinses used portions of the land up to the claimed boundary fence for a horse corral, to pasture horses, as a woodlot, to house a storage trailer, and used the septic system to service a recreational vehicle occupied by their disabled adult son.

The trial court found, among other things, that the Blevinses had title to the disputed area up to the claimed boundary fence under the doctrine of agreed boundaries.

DISCUSSION

I

 The Bryants contend that the trial court erred in applying the doctrine of agreed boundaries.   They argue the doctrine can never be applied when, as they claim here, the true boundary had always been ascertainable from deed descriptions resting upon an adequate survey.   Their argument rests on comments disparaging use of the doctrine of agreed boundaries in Mesnick v. Caton, supra, and Armitage v. Decker, supra.   The Bryants' contention has no merit.

The contention is antithetical to the settled law.   It does not require that the true boundary not be readily ascertainable by an accurate survey following the deed descriptions.  (E.g., Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707–708, 336 P.2d 525;  Mello v. Weaver (1950) 36 Cal.2d 456, 460, 224 P.2d 691.)  Mesnick and Armitage cannot repudiate a doctrine of real property law established by the California Supreme Court.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

 As Armitage notes, once the boundary line has been established under the agreed boundaries doctrine it does not convey title to the land between that boundary and the boundary subsequently determined by survey;  rather, it fixes the line and under the descriptions in the deeds carries title up to the agreed line, regardless of its accuracy as measured by survey.  (See 218 Cal.App.3d at p. 900, 267 Cal.Rptr. 399.)   A change in the legal criteria of an agreed boundary under Mesnick and Armitage would transfer title to land away from those whose ownership is measured by the settled criteria of the agreed boundary doctrine.   Such changes in real property law are the most strongly disfavored under the doctrine of stare decisis.  (See 9 Witkin, Cal.Proc. (3d ed. 1985) Appeal, § 787.)   If applied retroactively, they raise a significant constitutional concern regarding the deprivation of vested property rights.   To the extent that the Bryants' argument finds support in Mesnick and Armitage we part company with those opinions.

In Mesnick the trial court held that a meandering 25–year–old grape stake fence, standing between two residential lots in Los Angeles, did not mark an agreed boundary.  (183 Cal.App.3d at pp. 1254, 1257, 228 Cal.Rptr. 779.)   The court of appeal agreed, noting the irregular shape and contour of the fence and the residential urban context.   It principally relied upon the opinion of this court in Finley v. Yuba County Water District (1979) 99 Cal.App.3d 691, 160 Cal.Rptr. 423, an affirmance of a case involving a similar meandering fence.   In Finley we noted:  “[T]he mere fact that a landowner allows his neighbor to occupy or use part of his land does not automatically fix the boundary between them or give the neighbor a right to use or take the property in perpetuity.   The doctrine rightfully rests on the intent of the parties, and determining such intent is the province of the trier of fact.”  (Id. at p. 700, 160 Cal.Rptr. 423.)   We have no quarrel with the holding or the foregoing reasoning in Mesnick.

But the Mesnick opinion also suggests, in dicta, that the doctrine of agreed boundary should only be applied “[w]here no reliable legal description exists․”  (183 Cal.App.3d at p. 1257, 228 Cal.Rptr. 779.)   As noted, this suggestion is inconsistent with binding precedents and we cannot follow it.  (Also see, e.g., 5 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 14:1.)

Unfortunately, this dicta has been repeated and endorsed in Armitage.   The opinion acknowledges that the views expressed in Mesnick are “somewhat inconsistent” with the agreed boundaries doctrine;  however, it finds them “a far better approach to resolution of present day boundary disputes.”  (218 Cal.App.3d at p. 903, 267 Cal.Rptr. 399.)   Such an approach should find better avenues of relief.   If there is now less factual justification for uncertainty than at earlier times, it may be expected that the agreed boundary doctrine will wither away at the hands of triers of fact less inclined to infer agreed boundaries.   Changed conditions may warrant prospective legislative alteration of the doctrine.   But the settled criteria of the doctrine are not open to retroactive alteration by a court of appeal on the basis of its view of the better rule of law.

Accordingly the Bryants' first contention has no merit.

II

 The Bryants contend that, in any event, the trial court erred in finding that the fence line was an agreed boundary as there is no substantial evidence of two elements required for application of the doctrine.   They argue that the boundary could not have been uncertain when the fence was first installed because the (then) owners of the Blevinses parcel were the original subdividers who must have been aware of the true boundary line.   They also argue that the Blevinses failed to carry their burden of proof that the fence was located by agreement between the contiguous owners.   Neither argument is persuasive.

“The requirements of proof necessary to establish a title by agreed boundary are well settled by the decisions in this state.  [Citations.]   The doctrine requires that there be an uncertainty as to the true boundary line, an agreement between the coterminous owners fixing the line, and 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.   It is not required that the true location be absolutely unascertainable [citation];  that an accurate survey from the calls in the deed is [im]possible [citation], or that the uncertainty should appear from the deeds [citation].   The line may be founded on a mistake.  [Citation.]  [¶]  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.  (Hannah v. Pogue [ (1944) ] 23 Cal.2d 849, 856, [147 P.2d 572], and cases cited.)”   (Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d at pp. 707–708, 336 P.2d 525.)

Under these criteria the trial court did not err in finding an agreed boundary.

A.

As noted, the Bryants claim that the uncertainty of the true boundary could not have been established.   They argue that the fence must have been installed during the ownership of the Blevinses parcel by the original subdividers and it would be absurd to conclude they were uncertain because they had caused the subdivision to be surveyed when it was originally divided.

The trial court was not compelled to find that the fence in issue was sited and first constructed during the period when the original subdividers owned the Blevinses' land.   The testimony of Mrs. Blevins concerning the fences she observed in the 1950's is equivocal.   She testified that she saw perimeter barbed wire fences.   She was not asked questions specifically addressed to the existence or location of the fence line separating the two parcels.   Hence, the ultimate fact of agreed boundary can be sustained on an implied finding that the fence line was sited during the tenure of the Reynoldses.

 In any event, uncertainty concerning the boundary could arise from two sources:  uncertainty as to the location of boundaries of the original lot, or uncertainty as to the meaning of the grant deed regarding the first portion of that lot which was conveyed.   Neither variety of uncertainty is precluded on this record if the fence was sited during the time the original subdividers owned the Blevinses parcel.

 A subdivider is not necessarily acquainted with the boundaries of each of the lots and may lose such knowledge through the passage of time.   A conveyance described as “half” of an irregular parcel of land is patently ambiguous.   It could signify an equal area as construed by Seibel, determined by a line parallel to an original border, or a division from the midpoints of the north and south borders, as in the assessor's map.  (See Robillard and Bouman, Clark on Surveying and Boundaries (5th ed. 1987) § 16.20.)   It is also possible the grant was intended to divide the irregularly shaped lot in half after discounting from the Blevinses' parcel the portion for a fire road on the eastern border.  (Cf. Mello, supra, 36 Cal.2d at pp. 460–461, 224 P.2d 691.)   For these reasons the trial court was not compelled to conclude that there was certainty concerning the boundary at the time of location of the fence line in issue.

B.

 The Bryants' remaining argument is that the trial court erred because the Blevinses failed to produce evidence that the boundary was the product of an agreement by their predecessors in interest.   They claim the court could not infer an agreement from the long acquiescence in the use of the fence as a boundary.   Again, they rely upon Armitage.   The established law is to the contrary;  an agreement can be inferred from long acquiescence in a boundary line in the absence of compelling evidence to the contrary.

In Armitage a straight picket fence had been in place prior to 1906 when the witness, who was the earliest owner of one of the disputed parcels, came to the land.   He “assumed” that it was the boundary, as did his successors in interest, until a dispute arose in 1984.   He repaired the fence at times to contain animals.   He had a conversation with an owner of the adjacent parcel in which they “discussed the fence as being the boundary at the southeast corner of the property but had no other discussions about the fence as a boundary.”  (218 Cal.App.3d at pp. 894–895, 267 Cal.Rptr. 399.)

Armitage holds that erroneous jury instructions concerning the doctrine of agreed boundary were harmless because there was no substantial evidence permitting an inference of uncertainty and agreed boundary.   The perceived evidentiary deficiency was that the proponent of the fence as a boundary failed to establish that landowners on both sides of the fence “accepted the fence as a boundary.”  (218 Cal.App.3d at 901, 267 Cal.Rptr. 399, orig. emphasis.)   The gist of the Armitage reasoning is as follows:  “Absent proof of acceptance of the fence as a boundary by owners on both sides, there was no basis for an inference of uncertainty and agreement.  (Compare Clapp v. Churchill [1913] 164 Cal. 741 [130 P. 1061] [assumption that hedge marked boundary by plaintiffs;  no evidence of agreement with defendants] with Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d at p. 708 [336 P.2d 525] [evidence that adjoining owner acquiesced in substantial improvements encroaching over true boundary for 26 years]․)”  (Armitage, at pp. 901–902, 267 Cal.Rptr. 399, brackets are in the original except for the date, citations of three court of appeal opinions upholding application of the agreed boundary doctrine omitted.)

The sole authority to which Armitage points in support of its rationale is Clapp v. Churchill, supra.   But Clapp is inapposite.   It addressed a border strip four or five feet wide containing a pomegranate hedge.   The proponent of the claimed boundary relied upon remnants of a wire fence supported partly by the pomegranates and partly by two or three old posts.   He assumed that this was the boundary;  he was not so informed by his predecessor in interest.   He erected a new fence and used the land by trimming the hedge and planting seeds in the disputed strip during the six years prior to the litigation.   He offered no evidence that the neighbor opposing the claim of an agreed boundary believed or declared the boundary was uncertain, or agreed to fix the hedge as the boundary.   There was no uncertainty as to the boundary on the face of the deed.   The Supreme Court held there was insufficient evidence to support an inference that the hedge was an agreed boundary.

The sole basis for the claim of agreed boundary in Clapp was acquiescence in the maintenance of the fence during the six-year tenure of the proponent of the agreed boundary, who made no claim that he was a party to an implied or express boundary agreement on his own part.   There were no circumstances suggesting uncertainty concerning the boundary.   The pomegranate hedge row might sensibly have been planted just inside the border of the property of the opponents of the agreed boundary claim.   There was no evidence of long previous acquiescence under former owners in the hedge row and dilapidated fence as the boundary line.   For these reasons Clapp does not support the broad proposition for which it is cited in Armitage.

On the other hand, Hannah v. Pogue (1944) 23 Cal.2d 849, 857, 147 P.2d 572, conflicts with the view that the proponent of an agreed boundary, based upon long acquiescence in the maintenance of a fence line, must adduce direct evidence that the holders of the land disadvantaged by application of the doctrine acceded to the fence as a boundary.   The proponent of the doctrine adduced evidence that an old fence was in existence when her husband acquired the land in 1917, that it remained standing until the time of trial, sometime after 1939, and that she believed it marked the boundary.   The Supreme Court found this evidence supported an inference of agreed boundary.  “This testimony establishes her acceptance of the fence as the boundary, in all likelihood reflecting the belief of her husband and former owners on the other side of the fence.”  (Ibid.)  This implies that if the circumstances reasonably lead the proponent of the agreed boundary to believe that a fence line is the boundary, a similar belief can be inferred as to the other holders of the subject properties.¹

This is not to say that long acquiescence in the existence and maintenance of any fence in the vicinity of a border compels an inference of agreed boundary.   The matter is one that may turn upon local customs and sensibilities concerning the uses of the lands and fences.  “Of course, the acquiescence must consist in acquiescence in the fence or monument as a boundary line and not mere acquiescence in the existence of the fence or monument as a barrier.  (Staniford v. Trombly [1919] 181 Cal. 372, 373, 375 [186 P. 599];  Phelan v. Drescher [1928] 92 Cal.App. 393 [268 P. 465].) ”  (Roberts v. Brae (1936) 5 Cal.2d 356, 360, 54 P.2d 698.)

 Where the trier of fact finds that a fence was not built upon an agreed boundary line, but only at a convenient place to prevent the staying of stock, it cannot predicate an agreed boundary based upon subsequent sufferance of the fence.  (Staniford, supra, 181 Cal. at pp. 374–375, 186 P. 599.)   The following has been said regarding long acquiescence given to a fence not built in a straight line, where the boundary is straight and clearly marked by monuments, and an agent of one of the proponents of the agreed boundary claim has admitted the fence is not on the boundary:  “Whether these and other similar circumstances are sufficient to overcome the inference from long acquiescence and occupancy of an agreed boundary, under the other circumstances shown, involves the weighing of conflicting evidence, a functionexclusively of the trial court, and is not a question of law within the province of a reviewing court.”  (Phelan, supra, 92 Cal.App. at p. 398, 268 P. 465.)   The matter is ordinarily governed by the conflicting inferences doctrine.  (Also see, e.g., McKinney v. Kull (1981) 118 Cal.App.3d 951, 173 Cal.Rptr. 696.)

In this case, under the established doctrine the circumstances permit an inference of an agreed boundary.   Insofar as Armitage supports the Bryants' argument that the Blevinses' agreed boundary claim is not supported by substantial evidence because they offered no direct evidence that their predecessor in interest acknowledged the fence as a boundary line we decline to follow Armitage.   The construction and use by the Reynoldses of the corral and septic system on the disputed land and the continuation of those evident and substantial uses plainly warrants a finding that the fence was treated as a boundary by all concerned.

CONCLUSION

None of the Bryants' other contentions survive since the finding of an agreed boundary is upheld.   Accordingly, the other points they raise require no discussion.   Their motion for judicial notice as to matters bearing on these other points is denied as immaterial.

The judgment is affirmed.

FOOTNOTES

1.   Admittedly, in Hannah, as the Supreme Court noted, the circumstances favored the application of the doctrine of agreed boundaries because uncertainty about the true boundary was palpable, continuing even until the time of trial.  (Ibid.)

BLEASE, Associate Justice.

PUGLIA, P.J., and DAVIS, J., concur.