Carl Kanowsky, Esq.

Jim and Joan Sunset came to see me the other day. It seems they were in a major argument with their neighbors, Kyle and Katy Moonlight. The battle was over exactly where the fence dividing their two properties should be located.

A few decades earlier, things were a lot more neighborly when Becky and Bill Daze lived where the Sunsets do now and Mary and Mike Knight had the Moonlights’ property. The Dazes and Knights simply put up a fence where another one had previously been located. Why pay for surveyors? The old and new fences worked for what the Knights and Dazes wanted, so no one really questioned the fences’ locations.

Things went along smoothly until the Sunsets and Moonlights moved in. The Sunsets believed the fence was wrong; they thought they should have more land than they did. So they hired a surveyor. Sure enough, the fence took away a significant portion of their land.

They had tried to work things out with the Moonlights, but to no avail. The Moonlights had put up a tree house for their kids, along with an elaborate swing set-jungle gym. The Moonlights were not inclined to move everything. After all, this boundary had worked fine for more than one generation.

Who do you think should win? The Sunsets, who can establish that the fence is in the wrong place? Or the Moonlights, who argue that year after year, there’s been no argument about the fence’s location? Moreover, they’ve relied upon the where the fence is now to put their kids’ play equipment.

The Court of Appeal dealt with a case just like this. It had to decide which trumps the other, boundary by survey or boundary by agreement.

In the case handled by the Court of Appeal, back in the ’40s there were these two neighbors in lush, wine grape-rich Paso Robles. Each owned a vast tract of land (in excess of 100 acres) on which cattle roamed. (Sounds like a song?)

Well, to keep one man’s cows from contaminating the others, a fence was erected. Later that fence was replaced by a deer fence. Relying on this fence as the boundary, one neighbor planted almond trees, which proved to be a good cash crop.

And so things remained until the 21st Century. The new owners, not trusting anecdotal history, had three surveys done. The one thing all the surveys agreed on was that the deer fence was not the true boundary between the two properties.

When the new neighbors couldn’t come to an agreement about where the boundary was, they sued each other. The case went to the Court of Appeal, which issued an opinion in Martin v. Van Bergen.

The court ruled that there are three essential elements to a boundary by agreement. “The 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.”

In this case, there was no dispute but that two of the elements were present. No one could agree where the boundary actually was, and one neighbor would lose money on an almond orchard if the property line were moved.

The problem was that there was no actual agreement, written or otherwise, about the deer fence actually marking the boundary between the neighbors. There were only assumptions and acquiescence.

The court showed “deference to accurate legal descriptions and a reluctance to allow such descriptions to be invalidated by implication through reliance on boundaries created by fences, foliage or other inexact means of demarcation.”

So, if you and your neighbor can’t agree on where the boundary between your properties is, don’t rely on assumptions. Either agree in writing and get it recorded, or hire a surveyor.

Carl Kanowsky is an attorney in Santa Clarita. He can be reached at cjk@kanowskylaw.com. Visit him online at www.kanowskylaw.com.