Doctrine of boundary by agreement: good fences don't make good neighbors absent an agreement.

September 17, 2012
By Justice Steven Vartabedian (Ret.) on September 17, 2012 6:00 AM |

fences.jpgWith apologies to Robert Frost and his poem "Mending Wall," there might be a circumstance when a good fence does make a good neighbor: that is where the fence marks an agreed-upon boundary between two neighbors. In Martin v. Van Bergen (filed September 6, 2012) 2012 DJDAR 12577, the Van Bergens contended the fence that had been built between the Van Bergens' property and that of the Martins defined the boundary between the two properties because their predecessors who owned the two properties when the fence was built created a "boundary by agreement." The Court of Appeal, Second Appellate District, Division Six, recognized this doctrine, but found one all too obvious element missing in the Van Bergen's proof: an agreement. It affirmed the quiet title judgment in accordance with the Martins' survey of the true boundary.

The Martins own a 240-acre parcel in Paso Robles that include their residence and a vineyard. The Van Bergens own a contiguous property consisting of their residence and an almond orchard. A fence runs over Martin's parcel for a portion of the 1300 feet parallel to the boundary. The area between the boundary and the fence has almond trees farmed by the Van Bergens, encroaching on the Martin parcel. The almond orchard was planted in 1947; the Van Bergens' predecessor-in-interest was assisted by Martin's predecessor, who possessed some survey equipment, in the planting. No one recalls any survey equipment actually being used; the "deer" fence constructed at that time marked the extent of almond trees simply replacing and matching the location of an old fence used to contain cattle.

In 2005, upon acquiring their property, the Martins had professional surveyors perform a survey for them. The survey established the boundary as showing the Van Bergen orchard and fence encroached on the Martins' property. The boundary indicated that 8 to 10% of the Van Bergens' almond crop was being grown on the Martins, property. The Van Bergens sold only about 25% of their crop commercially. The Van Bergens also had a professional survey performed which showed the boundary line to be different than both the fence line and the Martins' survey.

The Court of Appeal acknowledged the doctrine of boundary by agreement. It incorporated the analysis found in Bryant v. Blevins (1994) 9 Cal.4th 47. The doctrine requires (1) an uncertainty as to the true boundary line, (2) an agreement between the coterminous owners fixing the line, and (3) acceptance and acquiescence by the parties for the statutory period. The Bryant court found on the evidence before it that there was no evidence of any dispute between the parties leading to an agreement that the fence marked the boundary; deference needs to be given to accurate legal descriptions.

The Van Bergens argued the boundary was ambiguous especially in light of the competing recorded surveys, and that an agreed boundary must control because the true boundary would cause substantial financial loss compared to the parties' mutually mistaken assumption consistent with the fence. The court rejected both contentions. The question is whether a survey can accurately locate the true boundary, not whether the boundary is uncontradicted. Additionally, the test is not based on mutual mistake or financial loss (which here was minimal anyway in terms of crop that went to market). The Van Bergens failed to show any agreement that the fence location resolved any dispute or uncertainty as to the true boundary.

While Frost's advice was: "[B]efore I build a wall I'd ask to know [w]hat I was walling in or walling out, [a]nd to whom I was likely to give offence;" the advice here (though less poetic) is don't build that wall between you and your neighbor unless the two of you agree that is the correct boundary.

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