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Keith Martin et al v. Alexandra Van Bergen et al

September 6, 2012

KEITH MARTIN ET AL., PLAINTIFFS AND RESPONDENTS,
v.
ALEXANDRA VAN BERGEN ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. CV098387) (San Luis Obispo County) Martin J. Tangeman, Judge

The opinion of the court was delivered by: Gilbert, P.J.

CERTIFIED FOR PUBLICATION

This case arises from a boundary dispute. The defendants rely on the doctrine of boundary by agreement in defense of the plaintiffs' quiet title action. Missing from defendants' case, among other things, is an essential element - an agreement. We affirm.

FACTS

Plaintiffs Kenneth Martin, Tamara Martin and Adam Vali (collectively "Martin") own a 240-acre parcel of land in Paso Robles. The property is improved with a residence and a vineyard. Martin acquired the property in 2005.

Alexandra Van Bergen and Layth Alsudiary (collectively "Van Bergen") own a contiguous parcel consisting of a residence and an almond orchard. Alsudiary obtained title to the parcel in 1997. Van Bergen was added to the title in 2005.

The common boundary between the parcels is approximately 1,300 feet long. It runs along the eastern edge of the Martin's parcel and the western edge of Van Bergen's parcel. A fence runs over Martin's parcel for at least part of the 1,300 feet parallel to the boundary. The area between the boundary and the fence is planted with almond trees. In other words, Van Bergen's almond orchard encroaches onto Martin's parcel.

Ruth Scovell testified she moved with her family onto Van Bergen's parcel in 1945, when she was 15 years old. In 1947, her family planted the almond orchard that exists today. Her family was assisted by Martin's predecessor-in-interest, who reportedly performed survey work for the Army and possessed some survey equipment.

At the time the Scovells planted the almond orchard, there was an existing cattle fence where the present fence is located. They replaced the cattle fence with a deer fence. They worked with their neighbor in doing so. Scovell did not remember her neighbor using survey equipment to locate the fence. The new fence simply replaced the old fence. Scovell never heard any disagreements with her neighbor about the fence. As far as Scovell knew, there was no uncertainty between the neighboring property owners as to the location of the boundary. Both property owners were certain the fence was located on the boundary.

In 2005, three surveys were performed to establish the boundary between the parcels. Surveys by EMK & Associates ("EMK") and Daniel J. Stewart & Associates ("Stewart") came to the same conclusion, that the orchard encroached onto Martin's parcel. A survey by Vaughan Surveys, Inc. ("Vaughan") placed the boundary in a different location. The existing fence is not on any of the surveyed boundaries.

Dan King, owner of EMK, testified that his and Stewart's surveys were accurate. He stated the Vaughan survey is inaccurate because it is based on a mistaken identification of the south quarter corner of section 13. Vaughan was deceased at the time of trial.

John Sanders, a licensed surveyor, testified as Van Bergen's expert. He said he had no opinion of the accuracy of any of the three surveys. He said he could, if asked, conduct his own survey, and accurately determine the boundary between the parcels. He was not, however, asked to do so. He testified that because all three surveys had been recorded, they create an inherent uncertainty about the true boundary.

The boundary established by the EMK and Stewart surveys would result in a loss of 8 to 10 percent of the almond orchard. The orchard produces approximately 400 pounds of almonds a year, of which only 25 percent are sold commercially. Thus, the relocation of the boundary would result in a loss to Van Bergen of a small percentage of her orchard, producing 40 pounds of almonds annually.

The trial court concluded Van Bergen did not establish the fence as the boundary under the doctrine of boundary by agreement. The court found that the EMK and Stewart surveys accurately establish the true boundary, and that the Vaughan survey is in error. The court quieted title in ...


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