Forty Year Old Fence Did Not Establish an Agreed Boundary

  In a boundary dispute between adjoining landowners defendants attempted to rely on the doctrine of boundary by agreement, based upon the location of a fence, in defense of plaintiffs’ quiet title action. They lost.

  The two properties shared a boundary approximately 1,300 feet long. In 1947 there existed a cattle fence, which was replaced by a deer fence. The prior owners of each parcel believed the fence was on the boundary between each parcel. Until 2005, when three surveys were performed to establish the boundary between the two parcels, there had never been any disagreement about the fence or any uncertainty between the neighboring property owners as to the location of the boundary: it was where the fence was located.

  Two of the three surveys performed to establish the boundary between the two parcels came to the same conclusion: the fence was not on the boundary line; the defendants’ parcel encroached on plaintiffs’ parcel. The third survey agreed the fence was not located on the boundary but placed the boundary in a different location.

  The trial court concluded defendants did not establish the fence as the boundary under the doctrine of boundary by agreement.  The court found the two surveys which were in agreement accurately established the true boundary, and that the third survey was in error.  The court quieted title in plaintiffs based on the boundary established by the two surveys. The relocation of the boundary resulted in a loss to defendants of 8% to 10% of an almond orchard producing 400 pounds of almonds annually.

  The Court of Appeal affirmed in Martin v. Van Bergen. The doctrine of agreed boundary 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.

  Unless there was an agreement to resolve a boundary dispute the only question to be asked is “whether a survey can accurately locate the true 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.”

  Take-away: Unless the fence was built to resolve a dispute regarding the boundary, the long acquiescence in the location of the fence is insufficient to prove an agreed boundary. Deference is required to the sanctity of true and accurate legal descriptions. “[A] boundary is not uncertain if it can be ascertained by an accurate survey.”


  I consult with clients and accept cases involving quiet title actions, including those involving easement and boundary disputes. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude
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