By Glen Hansen
In Martin v. Van Bergen (September 6, 2012, B232570) ___ Cal.App.4th ___, the Court of Appeal for the Second Appellate District held that a property owner who unknowingly had raised almond trees up to a common fence located on a neighboring parcel could not raise the doctrine of boundary by agreement as a defense to the neighbor’s quiet title action, because there was no evidence of an actual agreement to locate the fence as the boundary between the parcels.
In Martin, plaintiffs owned a 240-acre parcel of land that contained a residence and vineyard. Defendants owned a contiguous parcel consisting of a residence and an almond orchard. The common boundary between the parcels was approximately 1,300 feet long. A fence ran over plaintiffs’ parcel for at least part of that distance parallel to the boundary. The area between the boundary and the fence was planted with almond trees. In other words, defendants’ almond orchard encroached onto plaintiffs’ parcel. The fence that was installed in 1947 simply replaced an earlier fence in that same location, without any stated disagreements or uncertainty between the neighboring property owners as to either where the boundary was located or whether the fence was located on the boundary. However, in 2005, three surveys were performed, two of which demonstrated that the orchard encroached onto plaintiffs’ parcel, and that the true boundary would result in a loss of 8 to 10 percent of the almond orchard. Defendants’ orchard produced approximately 400 pounds of almonds a year, of which only 25 percent are sold commercially; therefore the relocation of the boundary would result in a loss to defendants of a small percentage of the orchard, producing 40 pounds of almonds annually.
The trial court concluded that defendant did not establish the fence as the boundary under the doctrine of boundary by agreement, that defendants would not suffer “substantial loss” if the fence was moved to the true boundary, and that plaintiffs were entitled to quiet title based on the boundary established by the two surveys. The Court of Appeal affirmed.
Relying on the Supreme Court’s analysis in Bryant v. Blevins (1994) 9 Cal.4th 47, the Court of Appeal in Martin noted that the agreed-boundary doctrine requires that there be (1) an uncertainty as to the true 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. The 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. Proof of the acquiescence in the existence of a fence without evidence of an agreement to take the fence as a boundary is not sufficient to establish an agreed boundary. If a survey derived from a deed or other legal document can accurately locate the boundary, the policy favoring certainty in real property title militates against establishing a boundary by agreement. In this case, the defendants’ expert conceded that, if asked, he could accurately survey the boundary between the properties. Also, while the neighboring property owners long acquiesced in the location of the fence, “Bryant makes clear that such acquiescence is not sufficient to prove an agreed boundary. There must be evidence of an actual agreement.” Finally, defendants provided no basis for overturning the trial court’s finding that defendants would not suffer substantial loss.
Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.