Opinion
A146577
09-27-2018
BERTOLLI PROPERTIES, LLC, Plaintiff and Appellant, v. HEADWATERS RANCH, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV-255040)
This appeal involves a boundary dispute between neighbors. Plaintiff and appellant Bertolli Properties LLC (Bertolli) and defendant and respondent Headwaters Ranch Inc. (Headwaters), each own hundreds of acres of land in Sonoma County. The parties disputed the precise location of a common boundary based on a section corner established by the original surveyor. During a bench trial, the parties offered conflicting expert testimony on which of two locations re-established the original section corner. The court quieted title in favor of the location offered by Headwaters. The trial court's determination of the boundary line was supported by substantial evidence, so we affirm.
BACKGROUND
The property involved lies in Township 9 North, Range 11 West Mount Diablo Base and Meridian, an unincorporated area off of Skaggs Spring Road near Geyserville in Sonoma County. Bertolli, a real estate investment company, and Headwaters, a nonprofit corporation formed in 1949, are neighboring landowners, each owning over a thousand acres of land in the township. Frank Bertolli (Mr. Bertolli) bought the Bertolli land in 1987 and subsequently transferred ownership of the property to the family investment company. Headwaters acquired its land throughout the 1950s. Its approximately dozen members use the land for recreational purposes.
The parties disagree on the north-south line that separates their properties. The dispute arises from wholly different views of the location of the section corner set by the original surveyor in the nineteenth century that established the line between their sections. That section corner is the one common to sections 8, 9, 16, and 17 of the township (Disputed Corner). The north-south section line extending from this corner separates Bertolli's property in section 16 east of the line and Headwaters land in section 17 west of the line. The location of the section line determines ownership of approximately 300 acres of disputed land.
The line in dispute was first established in 1879 by D.D. Brown on behalf of the United States Government Land Office (GLO). As part of his survey, Brown established the Disputed Corner (also referred to as the Brown Corner for clarity as context requires). Brown generated field notes which marked the corners between sections and described the natural features of the terrain with their distances and bearings from section corners. For the Disputed Corner, Brown's field notes indicated a number of witness points: "a Black Oak 8 inches in diameter, south 26 degrees west, 118 links distant; a Maple 12 inches in diameter, north 26 degrees east, 90 links distant, a Tan Oak 10 inches in diameter, south 18 degrees east, 176 links distant, and a Tan Oak 10 inches in diameter, north 51 degrees west 170 links distance." The land is described as "mountainous [and] steep." Brown's field notes were memorialized into the original and supplemental maps for the township. A note from the Surveyor General's office on the 1879 township map indicates, "The above Map of Township No. 9 North Range No. 11 West of Mount Diablo Meridian is strictly conformable to the field notes of the surveys thereof on file in this Office, which have been examined and approved."
We grant Bertolli's request for judicial notice as to Brown's field notes, a more legible copy of what was admitted as Trial Exhibit 11 in the case.
In 1906, the area was resurveyed by Joe Cox, a private surveyor. Cox's field notes indicate that he found the Black Oak witness tree noted by Brown at south 26 degrees west 41 links, instead of 118, with clear marks indicating that it was the witness tree that Brown had identified. Cox also found a maple tree, which he described as being in bad condition, fallen down, and decaying but with still faintly visible markings at north 26 degrees east 90 links.
In 1936, another survey was conducted by W.H. Williams. Whether Williams found the original Brown Corner, as he purported to do, is disputed. Williams's work was memorialized in a recorded Record of Survey, but there are no field notes to indicate the reasons Williams fixed the Disputed Corner where he did.
In 1998, another surveyor, Robert Curtis, was hired by Tony Caughey (Mr. Caughey) to locate the Disputed Corner. The Caughey Family Trust (Caughey) owned land in section 17 between Headwaters's and Bertolli's lands. Mr. Caughey wanted to build a cabin on his family's property but had been advised by Bertolli that under his initial plans the cabin would encroach on Bertolli land. Sonoma County instructed Mr. Caughey that if he wished to proceed he needed to establish the boundary line between the Caughey and Bertolli properties. As part of his work for Mr. Caughey, Curtis reestablished the Brown or Disputed Corner based on where Williams fixed it in 1936 and recorded his result (the "Curtis Corner").
Mr. Bertolli then hired Curtis and asked him to create a "Work in Progress" map showing the section boundaries based on the Curtis Corner. Mr. Bertolli circulated this Work in Progress Map to neighbors illustrating potential modifications to the existing property lines in the area. He informed at least one of his neighbors that he intended to resurvey the area and build a road based on the new survey. A map comparable to the Work in Progress map showed Headwaters lands shifted westward so that lands Headwaters believed to be its property were greatly reduced.
In 2010, Bertolli and Headwaters unsuccessfully tried to reach an agreement about their common boundaries.
In 2013, Headwaters found a road it had built on its purported property had been disrupted. Bertolli thought the road was on its property. Counsel for Headwaters sent a letter to Bertolli demanding it to cease and desist from destroying its roads and demanding the road be rebuilt.
In 2014, Bertolli brought this action to quiet title and determine its boundary with Headwaters. It also added claims for injunctive relief, declaratory relief, and trespass. Headwaters was the only named defendant, though Bertolli also included doe defendants described as "all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest" in the property at issue. Headwaters cross-complained seeking essentially the same relief as Bertolli. Headwaters alleged that Bertolli was seeking to rewrite the boundary lines between their properties "to a point at least 1,320 feet to the west of where said common property line is truly located and has historically been used by [Headwaters]."
Headwaters hired land surveyor Ray Carlson to perform a retracement survey to reestablish the original Brown Corner. In February 2015, Carlson recorded a Record of Survey which re-established the Brown Corner in the location he believed Brown originally set (the "Carlson Corner"), but was different from the corner identified by Curtis. The Carlson Corner was located over a mile east of the Curtis Corner.
Carlson's Surveyor's Notes on the Record of Survey explain:
"The section corner to 8-9-16-17 was reestablished using the original Government Land Office (GLO) field notes of the subdivision of T9N, R11W, M.D.M. by D.D. Brown . . . . A search of county records found that in 1905 and 1906, surveys were performed for future mining claims and 4x4 cedar post monuments were set at the corners of these claim sites. The Vera and Trent mining claims . . . were tied to the 8-9-16-17 Section Corner.
The Northeast Corner of the Vera Claim was recovered and erroneously identified as the 8-9-16-17 section corner by W.H. Williams in 1936 . . . . Subsequently in 1998, this claim corner was reset by Robert W. Curtis as shown on Corner Record CR401. . . . CR401 attempts to associate the monument reset with field notes from a retracement survey by Joe Cox in 1906. Review of the Cox notes compared to the actual ground conditions at the site of the Vera claim corner make it clear that Cox was not in the location of the Vera claim monument when describing the 8-9-
16-17 Section Corner. Cox's notes indicate that he traversed "south 1.73 chains" from the section corner and then triangulated north for "18.68 chains to the top of a rocky point." Standing at the point south 1.73 chains from the Vera claim corner, there is no northerly line-of-sight for 18.68 chains to the top of a rocky point. The location for the 8-9-16-17 section corner reestablished hereon does have a line-of-sight to the top of a rocky point and additionally fits Cox's topo calls followed northerly. To further support this location, a bearing tree called for in Cox's notes, a black oak, south 26 degrees west, 41 links (GLO notes 8" B.O., south 26 degrees west, 11 links) was located as well as a maple sapling, Cox: 26 degrees east, 90 links (GLO notes north 26 degrees east, 90 links), that was accepted as a regrowth of the original maple bearing tree."
The case was tried to the court over the course of 11 days in April, May, and June 2015. Each side presented expert testimony based on its favored corner. Bertolli's expert, Howard Brunner, concluded that the Curtis Corner accurately recovered the original Brown Corner based on the 1936 Williams survey. Carlson, who was Headwaters's expert, opined that the Curtis Corner did not re-establish the Brown Corner. He asserted that Curtis found the corner fixed by Williams, but Carlson did not believe Williams located the original Brown Corner. Carlson concluded the corner he identified and recorded was the original corner set by Brown.
The court also heard testimony from neighboring landowners, many of whom owned properties bordering or near Bertolli lands, and had knowledge of the property boundaries for decades. In addition, the trial court spent a day with the parties, attorneys, and experts visiting the disputed area and examining the various witness points and topographical calls relied on by each side's experts.
The court's statement of decision observed that after visiting the area and examining the various witness points and topographical calls, the Brown Corner marked could not be ascertained with certainty. Neither could the court locate the "original witness trees identified by D.D. Brown." The trees no longer existed with the possible exception of a black oak whose trunk was rotting to such an extent that any markings Brown made on it were obliterated. Nor did the court feel that either side was able to prove Cox's "call to a rocky ridge to the north" of its proffered corner.
However, based on a number of "reliable indicia," the trial court found that the Carlson Corner most accurately reflected the Brown Corner. The court considered the section line established by the Carlson Corner to be consistent with the original plat maps of the township and testimony of nearby property owners and their historic understandings of the location and configurations of their parcels in accord with the mesne conveyances of their aliquot parts.
On the basis of its findings, the trial court concluded "that the boundary between the Bertolli Ranch and the Headwaters Ranch is located as indicated by Ray Carlson, and consequently the approximately 313.83 acres at issue in this case fall within the lands owned by Headwaters." The trial court awarded judgment to Headwaters on its cross-complaint quieting title to the disputed acreage. It dismissed all other causes of action in both Bertolli's complaint and Headwaters's cross-complaint "as neither party presented evidence as to any cause of action other than quiet title."
In September 2015, the trial court entered judgment. The judgment located the Disputed Corner as reestablished by Carlson's February 2015 Record of Survey, attached as an exhibit to the judgment and incorporated by reference. The court also established the boundary line between Bertolli's and Headwaters's properties to be "consistent with the location established" in Carlson's Record of Survey and "provid[ed] a visual representation of the boundary lines" in another exhibit incorporated by reference. It further decreed a legal description of "the lines to define the boundary of the lands between [Headwaters'], and the lands of Caughey (Assessor's Parcel 111-010-002-000, Sonoma County Records), with [Bertolli lands]." Bertolli now appeals from the judgment.
The line is described as follows:
"Line 1
Beginning at a 2" iron pipe and brass cap set for the section corner common to 8, 9, 16 and 17 of Township 9 North, Range 11 West, M D M as shown on that Record of Survey filed in Book 769 Maps, Page 3, Sonoma County Records; thence along said line South 1 degree 15 minutes 53 second West, 1281.93 feet; thence South 89 degrees 17 minutes 51 seconds East 1320.00 feet; thence South 1 1 degree 15 minutes 53 seconds West, 2563.86 feet; thence North 89 degrees 17 minutes 51 seconds West, 1320.00 feet; to the line common to Section 16 and 17 as shown on said Record of Survey; thence South 1 degree 15 minutes 53 seconds West, 1281.93 feet; thence continuing South 1 degree 15 minutes 53 seconds 15 West, 2563.86 feet to a found 1-1/4" iron pipe stamped S20-21 on east side accepted for the 1/4 corner for sections 20 and 21.
"Line 2
Beginning at a 2" iron pipe and brass cap for the section corner common to 8, 9, 16 and 17 of Township 9 North, Range 11 West, M D M as shown on that Record of Survey filed in Book 769 Maps, Page 3, Sonoma County Records; thence along said line North 3 degrees 16 minutes 45 seconds East, 1472.72 feet; thence North 89 degrees 59 minutes 36 seconds West, 2600.33 feet; thence North 3 degrees 16 minutes 45 seconds East 1387.13 feet; thence South 88 degrees 07 minutes 41 seconds West, 1394.15 feet; thence North 0 degrees 42 minutes 09 seconds East, 1320.00 feet; thence South 88 degrees 07 minutes 41 seconds West, to the section line common to section 7 and 8 of said Township."
ANALYSIS
A. Applicable Law
"Under California law, the location of a disputed boundary line is proven by retracing, as nearly as possible based upon existing evidence, the footsteps of the original surveyor whose survey fixed the boundaries. (See Pauley v. Brodnax (1910) 157 Cal. 386, 396-397 . . . [' "The survey as made in the field and the lines actually run on the surface of the earth . . . must control." [Citation.]']; Kimball v. McKee (1906) 149 Cal. 435, 462 [Kimball] [Trial court correctly instructed that ' ". . . . any surveyor, who for private parties thereafter undertakes to re-establish or relocate lines or corners, should endeavor as nearly as possible to follow in the footsteps of the surveyor who made the last-accepted government survey and place the corners and lines where they were placed by him." ']; Yolo County v. Nolan (1904) 144 Cal. 445, 448-449 ["[A later surveyor] should endeavor to retrace the steps of the man who made the original survey. If by so doing the line can be located, it must be done, and, when so located, it must control."]; Harrington v. Boehmer (1901) 134 Cal. 196, 199, . . . ["The question in all cases similar to this is, where were the lines run in the field by the government surveyor? A government township lies just where the government surveyor lines it out on the face of the earth.' "].) (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 736-737, as modified on denial of reh'g (Aug. 27, 2014) (Bloxham).)
When the trial court is confronted with an uncertain boundary location, its task is to "decide from the data appearing in evidence its approximate position," and "upon all the evidence, to fix the [common sectional corner] at a point where it will best accord with the natural objects described in the [original] field notes as being about it, and found to exist on the ground, and which is least inconsistent with the distances mentioned in the notes and plat." (Weaver v. Howatt (1911) 161 Cal. 77, 84, 86; Bloxham, supra, 228 Cal.App.4th at p. 737.) " '[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual location of the monuments, corners or lines as actually laid out on the ground by the official surveyor.' [Citation.] 'The questions where the line run by a survey lies on the ground, and whether any particular tract is on one side or the other of that line, are questions of fact. [Citation.]' " (Bloxham, supra, 228 Cal.App.4th at 737.) " 'Surveyors and civil engineers, like other experts, may give testimony on questions involving matters of technical skill and experience with which they are peculiarly acquainted. [Citations.]' [Citation.] The weight and credence to be given an expert's testimony is a question for the trier of fact. [Citation.]" (Id. at pp. 737-738.)
B. Standard of Review
We review the trial court's findings to determine whether they are supported by substantial evidence. Under this standard, "we are not called upon to say whether the testimony of plaintiff's experts would have supported a conclusion in favor of his theory, but to determine whether there is any substantial support for the adverse finding of the court." (Golden v. City of Vallejo (1919) 41 Cal.App. 113, 116-117.) In reviewing the evidence for its sufficiency, we resolve all evidentiary conflicts and indulge all reasonable inferences in favor of the judgment. (Bloxham, supra, 228 Cal.App.4th at p. 739.) This court has no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences that may be drawn from that evidence. (See, e.g., Daluiso v. Boone (1969) 269 Cal.App.2d 253, 260 [in boundary dispute, weight of the evidence and credibility of surveyors are exclusively within the province of the trial court and binding on appeal].)
C. Substantial Evidence
Here, it is not difficult for us to conclude the trial court's determination of the Disputed Corner's location is supported by substantial evidence. After noting that the Brown Corner could not be fixed with certainty, the trial court's statement of decision set forth multiple reasons why the Carlson Corner and its resulting boundaries most closely positioned the original Brown Corner. The trial court identified the evidence which served as "the most reliable indicia of the actual location of the Brown corner" and which it relied upon to fix it.
The first indicator the trial court found compelling was the "direction and distance calls made by the surveyor of the mining claims which tie into the D.D. Brown corner, as reestablished by Cox in 1906." Sonoma County historic records included Government Land Office surveys performed in 1905 and 1906 for future mining claims located west of Headwaters's and Bertolli's properties and 4x4 cedar post monuments that were set at the corners of these claim sites. The mining surveys done around the same time of the Cox survey, were tied to the original Brown Corner by Carlson and used as a point of reference. From established and known corners identified in the mining surveys, Carlson was able to retrace a line to ascertain a probable location for the original Brown Corner. Monuments and measurements taken by Carlson lined up with Cox's 1906 field notes. The point Carlson fixed for the Brown Corner had "[a] line-of-sight to the top of a rocky point" described in Cox's field notes and fit Cox's topographical calls going northerly. Cox noted an 8-foot black oak, south 26 degrees southwest from the Brown Corner. Carlson located a blazed, 19-foot black oak in the same direction. Other topographical calls from the original government surveys, such as creeks 33 feet to the north and 109 feet to the west, lined up with Carlson's chosen corner.
Carlson explained that a blaze is "a surveyor's mark on a tree where you take an axe and cut in at the top of the blaze tree area and down to the bottom."
The second indicator relied upon by the trial court were "[t]he topographical calls made by Carlson retracing the northerly section line of section 17 from the mining claims back to the approximated corner established by the reference in the mining parcel deeds for the Vera and Trent claims." Carlson explained that he had placed on a map the topographical calls from a Government Land Office survey for the east-west section line from the northwest corner of section 17. Carlson testified these topographical calls "fit reasonably enough that [he] was able to go in there and look at the corner between 8, 9, 16, and 17 where [he] reestablished it."
The third indicator the trial court relied upon was "[t]he evidence of a quarter corner to the north of the section corner found by Carlson, i.e. the charred remains of a 2 inch stake and the 2 foot circle of stones, which is consistent with the Cox survey." Carlson testified that his placement of the Brown Corner was corroborated by the location of another nearby corner documented by Brown and Cox. After he recovered what he believed to be the Brown Corner, Carlson ran the topographical calls from Cox's survey north and observed "they fit the topography." Carlson then sought to find the quarter corner on the line between sections 8 and 9, which was north of the Brown Corner and recovered by Cox in 1906. Carlson explained his team successfully recovered this quarter corner when it located the remains of a two-foot-diameter rock mound and decayed remains of a two-inch-by-two-inch stake at the expected location based on Cox's survey. Based on this quarter corner, which Cox recovered 26 years after it was originally set by Brown, Carlson testified that he was reasonably comfortable he had found the original Brown Corner.
The trial court further found that the Carlson Corner and the resulting section line between sections 16 and 17 were "consistent with . . . all of the historic maps that have been submitted in evidence with the exception of the Williams survey." Admitted into evidence were copies of original and supplemental government plats generated in the early 1900s from the government survey of the area which were certified by the surveyor general and accepted into the government's records. Carlson testified that these plats comported with the results of his retracement survey.
In addition, the trial court found that the Carlson Corner and the resulting section line between sections 16 and 17 were "consistent with the historic testimony presented by neighboring property owners as to the location and configuration of their parcels."
Neighbor Kenneth Murray's grandparents homesteaded and owned a 160-acre parcel in the southern part of section 21. Murray testified that Bertolli's Work in Progress map was contrary to his understanding of the parameters of the property. By his estimation, the hypothetical section lines in Bertolli's Work in Progress map moved the Murray lands west, and reduced those lands by 40 acres.
Neighbor Maureen O'Hare and her father John Peterson co-owned 80 acres of land which the Petersons bought in 1985. Their property was located south of Bertolli's and Headwaters's properties in the southwestern part of Section 16. O'Hare testified that she found a 1956 map in her dad's closet which was given to him by the prior owner. She stated the 1956 map accurately reflected the use and pattern of use her family exercised over the years. Other than Mr. Bertolli, no one has ever challenged the rectangular configuration of her family's property, or has suggested that the boundary orientation of their parcel is other than in a north-south direction.
Neighbor Donald Popp owned a 60-acre parcel in the area since 1970 but became familiar with the land years earlier, because he pig hunted there beginning in the early 1950s. Referring to the neighboring Peterson lands, Popp testified, "I was there when they set—when we set the stakes" marking the corners of that property in 1955. Based on the help he gave to the prior owner with his survey of that property, he knew where three of the four corners on the Peterson property were located. It was his understanding that the Peterson properties always followed the north-south lines, up and down, rather than in a diagonal northwesterly direction.
Another neighbor, William Forney acquired property in Section 17 which bordered Headwaters's land in 1983. When he purchased his land, the realtor provided him an aerial map "with an overlay with indelible marker marked on a clear piece of plastic insert over—over this piece of property." A copy of the overlay admitted into evidence showed his parcel sitting alongside a north-south section line between sections 17 and 16 and the parcels to the east configured in rectangles consistent with the original and supplemental plats. Forney added that there were markers—like "[p]retty crude water pipes"—placed in the ground as markers he associated with the boundary lines, and these markers were consistent with the map the realtor had given him. He said he had communications with his eastern neighbors (Peterson and Murray), and they shared the same understanding with respect to the boundary lines. Other than Mr. Bertolli, no one has ever challenged his understanding of his property boundary.
As a final and further indicator, the trial court found "that most of the properties in the immediate vicinity of the section line between sections 16 and 17 were originally patented and through mesne conveyances ultimately conveyed to the present owners as aliquot parts of sections and quarter sections. Thus, instead of a metes and bounds description, the conveyances were of nominal acreages, calculated by the description of the aliquot part conveyed. For well over 100 years landowners have relied on these conveyances and all of the historic maps that adjacent owners have testified to show the properties in a configuration and of comparable acreage to the original Government plat based on the D.D. Brown survey of 1879. The Carlson Corner and resulting section line between Sections 16 and 17 are consistent with this configuration and the resulting acreages." The court included two tables comparing the deeded acreage resulting from the "Carlson Section line" with the "Curtis Section line," which indicated Bertolli stood to gain over 300 acres based on the Curtis Corner. Carlson testified that considering the "practical effect determination" on the various owners was part of his study.
Collectively, this evidence substantially supported the trial court's determination that the Carlson Corner reasonably recovered the Brown Corner as well as the other findings and the trial court's judgment.
D. Bertolli's Counterarguments
None of Bertolli's arguments challenging the trial court's boundary determination warrants reversal.
Historical Surveys
First, Bertolli contends the trial court erroneously "discarded" the controlling historical surveys performed by Brown, Cox, Williams, and Curtis and "[relocated the boundary from its original location.]" It asserts it was erroneous for the court to "not pay proper credence to the historical surveys that control this case." We disagree with how Bertolli characterizes the trial court's approach.
The trial court's statement of decision cited to Chandler v. Hibberd (1958) 165 Cal.App.2d 39 (Chandler), and observed that " 'the location of a disputed boundary line must be proven by retracing the original survey that fixed the boundary. [Citation.] Based on the testimony of expert witnesses and lay witnesses, the Court must determine as a question of fact the actual location of corners and boundary lines.' " The trial court recognized the importance of the historical record, citing to the surveys completed by Brown, Cox, Williams, and Curtis and noted at the outset of its legal analysis that "[t]he critical issue to be decided is the location of the section Corner for sections 8, 9, 16, and 17 . . . set by D.D. Brown in 1879 and reestablished by Cox in 1906." The court ultimately concluded that "the Carlson Corner is an approximation, within reasonable limits, of the [original Brown] Corner." In doing so it neither disregarded the historical surveys nor did it create a different boundary as Bertolli contends.
Bertolli criticizes both the trial court and Headwaters for not addressing Reid v. Dunn (1962) 201 Cal.App.2d 612 (Reid), which Bertolli cites for the proposition that "historical survey evidence takes precedence in the determinations of corners and sections lines." Reid stands for the unremarkable position that historical survey evidence takes precedence and must be considered along with every other means of identifying an original boundary before it may be considered a "lost corner" and reestablished by proportionate measurement. (Id. at pp. 614-615.) The dispute before the court was whether the Curtis or the Carlson Corner properly re-established the Brown Corner. The court was not bound to assume the truth of Bertolli's expert's conclusion that the Curtis Corner was in fact the original corner designated by Brown. It was permissible for the court to rely on historical evidence from which the original corner can be located in addition to the surveys subsequent to Brown's. (See Chandler, supra, 165 Cal.App.2d at p. 55.)
Insufficient or Conflicting Evidence
Bertolli also claims various evidentiary deficiencies with respect to the court's conclusion. It argues there was an "absence of evidence substantiating" the boundary. Bertolli also contends that Carlson's opinions cannot be squared with actual field conditions and were inconsistent with the natural objects described in the original field notes. To support this argument, Bertolli contrasts Carlson's work with several examples from Curtis's 1998 work for Caughey, the neighboring landowner, which it contends reflected "definitive evidence" of the natural features identified in the original field notes.
These arguments are not grounds for reversal. In reviewing for the sufficiency of the evidence, "[i]t is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the [trier of fact]." (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) "[A]ll conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible." (Ibid.) "When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]" (Ibid.; Chandler v. Hibberd, supra, 165 Cal.App.2d at p. 60.) "The fact that it is possible to draw some inference other than that drawn by the trier of fact is of no consequence. [Citation.]" (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) These rules apply " 'in reviewing the findings of a judge as it is when considering a jury's verdict.' [Citation]." (Bloxham, supra, 228 Cal.App.4th at p. 739.) Because substantial evidence supported the trial court's decision, the evidentiary gaps or inconsistencies Bertolli identifies are not grounds for reversal.
Retracement
" '[A]ny surveyor, who for private parties thereafter undertakes to re-establish or relocate lines or corners, should endeavor as nearly as possible to follow in the footsteps of the surveyor who made the last-accepted government survey and place the corners and lines where they were placed by him.' " (Kimball v. McKee (1906) 149 Cal. 435, 462.) "[A later surveyor] should endeavor to retrace the steps of the man who made the original survey. If by so doing the line can be located, it must be done, and, when so located, it must control." (Yolo County v. Nolan (1904) 144 Cal. 445, 448-449.)
Bertolli contends the trial court erred because it entered judgment without adequate evidence that Carlson attempted to retrace the original government survey. Bertolli contends that "[e]xperts must actually retrace the disputed boundary" and that they need to "follow in the footsteps" of the government surveyor. It says there was not even an attempt here to find the operative monuments and natural objects.
As we have discussed above, Carlson's work for Headwaters complied with Bureau of Land Management standards and the case law. Carlson explained what a retracement entails: "[P]er the Bureau of Land Management Manual, we're supposed to look at and recover all kinds of evidence to recover the original government corners; that includes . . . the government notes for that section, the Township [plats], any historical information that we can recover, any witnesses that can recover for us information." In accordance with these standards, Carlson studied the original field notes, and attempted to locate the disputed corner by reference to the natural objects and topography described in the field notes. To aid him, he also consulted homestead records, plats, maps, and other records of the original government surveyors and others. He further considered related mineral surveys by federal government surveyors who conducted additional retracement surveys by federal government surveyors in the vicinity as they related to the relevant sections. We conclude Carlson conducted a proper retracement survey to establish the disputed boundary line between the parties.
Carlson's work adhered to applicable standards, and the court properly relied on it. "[T]he question presented to the court in a boundary dispute is not that of making a resurvey but one of determining as a question of fact from the preponderance of expert and nonexpert evidence (as in all other civil cases) the actual location of the monuments, corners or lines as actually laid out on the ground by the official surveyor. (Chandler, supra, 165 Cal.App.2d 39, 55.) "The trial court's duty is "to ascertain, if possible, the true position of the corner, accurately, if it could be done, or approximately within reasonable limits if the exact position could not be ascertained with absolute certainty." (Curtis v. Upton (1917) 175 Cal. 322, 333.) The standard expressed in case law authorizes to a trial court to base its determination on "expert and nonexpert evidence" without any need for a field visit. The case law also entitles a trial court to ascertain a boundary "approximately within reasonable limits" if no absolute certainty is possible. The trial court acceptably proceeded in this manner.
Proportional Measurement
Bertolli also claims that the trial court erroneously resorted to a proportionate split on the basis of acreage to determine the controverted boundary. Not so.
Above, we explained the location of a disputed boundary line is first proven by retracement (see Bloxham, supra, 228 Cal.App.4th at pp. 736-737), and where monuments are obliterated and undiscoverable, corners should be reestablished wherever possible in accordance with natural objects described in the original survey's field notes of the original survey. (Reid, supra, 201 Cal.App.2d at p. 615.) However, in circumstances where a corner is "lost" such that it cannot be located on the ground, a court may "as a last resort" use the proportional method, which "redistributes an excess or shortage proportionately between all owners along the particular line." (Chandler, supra, 165 Cal.App.2d at p. 51.) The proportional method "is not to be used 'if the line can be retraced as it was established in the field' and it " 'must not be resorted to unless all other prescribed methods fail.' [Citation]." (Ibid.)
" 'A lost corner is one which cannot be replaced by reference to any existing data or sources of information .' " (Chandler, supra, 165 Cal.App.2d at p. 52.) A corner is not lost if there is some acceptable evidence of the original location. (Ibid.) In contrast, an obliterated corner is defined as one of which no visible evidence remains of the work of the original surveyor in establishing it but of which the location may be shown by competent evidence. (Ibid.) --------
Here, the trial court did not determine the boundary line based on a proportionate split. The court's statement of decision recognized that certain original markers referenced in Brown's field notes could not be found and were obliterated, but it never concluded the Brown Corner was lost. The statement of decision makes clear that in accordance with its duty, the court determined the "actual location of the D.D. Brown Corner" based on a preponderance of the evidence. It declared the "Carlson Corner is an approximation, with reasonable limits, of the [Brown] Corner." Thus, it re-established the Corner based on evidence of its original location, including the testimony of competent surveyors, historic mining surveys and plat maps. (See Chandler, supra, 165 Cal.App.2d at p. 53 [" ' "In cases of disputed boundary, all evidence, whether documentary or parole, which bears upon the point in issue and which is not inadmissible on general principles, may be received in evidence, including records of original proprietors, their plans and maps and the location of lands by ancient settlers." ' "].) Notwithstanding this explanation, Bertolli contends the trial court "did in fact resort to 'proportionality,' by splitting the properties proportionally on the basis of acreage because a portion of the statement of decision compares the resulting acreages of the properties based on both the Carlson Corner and the Curtis Corner. However, Bertolli never articulates how these acreage comparisons actually reflect a proportionate split, and we reject his conclusory argument. In any event, as we indicated earlier, these comparisons simply provided the court more support for its resolution because Carlson's opinion was consistent with the historic configurations and resulting acreages.
Bertolli also points out that during trial the court "opined" about proportionality. As an initial matter, such oral comments from the bench are insufficient to serve as the basis of reversible error. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 268.) Moreover, the comments were made at a status conference on the fifth day (May 22, 2015) of an 11-day trial, not in conjunction with the ultimate statement of decision that followed months later (August 27, 2015). The court did not rely on the proportionate method but was only articulating the applicable law in the event the disputed corner was lost.
Bertolli's reliance on Weaver, supra, 161 Cal. at 84, is unavailing. There, the Supreme Court reversed a trial court judgment which relied on the proportional method. (Id. at p. 84.) Finding it impossible to find the location of monuments, the trial court measured a disputed line into four equal parts and disregarded a government survey. (Id. at pp. 79-80.) The Supreme Court determined there was enough evidence to locate a corner and the proportionate method should not have been used. (Id. at p. 84.) Here, the trial court found enough reliable indicia to locate the Disputed Corner and never resorted to the proportionate method. Weaver is inapplicable.
Joinder of Indispensable Parties
Bertolli also argues the judgment must be reversed because the trial court failed to join indispensable parties to the lawsuit. This is so, Bertolli contends, because "the Judgment purports . . . to decree the boundaries of the lands" of four neighbors: Caughey, Forney, Peterson and Nott. Thus, Bertolli argues the adjudicated boundary "impermissibly affects the property rights of neighboring owners" who were not parties to the suit, and the failure to compel joinder is reversible error. No. None of these neighbors is affected by the judgment or is bound by the court's boundary determination. (See Kraus v. Willow Park Public Golf Course (1977) 73 Cal.App.3d 354, 368 [judgment cannot bind absent parties]; cf. People v. Superior Court (1969) 1 Cal.App.3d 167, 170-171.) The dispute here was to determine a boundary between Bertolli and Headwaters, not to determine Bertolli's property lines against the world. (See id. at p. 171.)
The judgment makes clear that the court confirmed the properties of Bertolli and Headwaters by assessor's parcel numbers, re-established the disputed corner as fixed by the Carlson survey, declared that Bertolli and cross-defendants who were named or served have no interest in the Headwaters property, and enjoined and restrained such cross-defendants or anyone claiming through them to claim any of the property adverse to Headwaters. All unnamed and fictitious defendants were dismissed from suit.
The trial court's adjudication of the line to define the boundary between Headwaters and Bertolli references the lands of Caughey, but does not do so in order to adjudicate or quiet title of Headwaters against Caughey or as between Caughey and Bertolli. Rather, the judgment refers to the lands of Headwaters and Caughey on the one hand and Bertolli on the other because a segment of the metes and bounds description of the Headwaters and Bertolli boundary lies along the lands of Caughey. The judgment does not quiet title in the Caughey lands or adjudicate Caughey's boundary.
Substantive Due Process
Bertolli also contends the trial court's judgment deprived it of its property in contravention of Fourteenth Amendment substantive due process. It states, "The Trial Court's judgment neglected the historical evidence before it and discarded the law it is bound to apply when creating a property boundary." Even assuming arguendo that substantive due process applies to this type of case, the court did not engage in any arbitrary or irrational conduct in determining the common boundary line and fixing the Disputed Corner.
Adverse Possession
Finally, Bertolli argues that the trial court erred by not ruling on its "[unquestioned evidence of adverse possession.]" We disagree. Bertolli never properly presented an adverse possession claim for the trial court to adjudicate. While it raised adverse possession as a basis for affirmative relief, apparently the first time in its trial brief, it did not plead a cause of action for adverse possession in its complaint. Nor did its answer to Headwaters's cross-complaint assert adverse possession as an affirmative defense. Nothing in the record indicates Headwaters ever amended these pleadings.
Even if Bertolli had properly plead an adverse possession claim at trial, it would not be grounds for reversal. Adverse possession requires that the claimant's possession of the disputed property be exclusive. (Strauss v. Canty (1915) 169 Cal. 101, 105; Welsher v. Glickman (1969) 272 Cal.App.2d 134, 137.) There was abundant evidence that Headwaters used the disputed property continually, and that it vigorously rebuffed any attempt by Bertolli to exclusively occupy the property. Frank Bertolli's own testimony revealed Bertolli did not have exclusive possession. He had numerous encounters with Headwaters people on the property for a long time. He testified that Headwaters placed new roads on the property, told Headwaters people not to come onto the property, but they persisted. He erected a gate to keep Headwaters people out, but they kept cutting the lock, so eventually he just gave them the combination. In addition, there was evidence Headwaters put up "no trespassing" signs on the property. Such evidence would have been sufficient to defeat any adverse possession claim asserted by Bertolli.
DISPOSITION
The judgment is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Pollak, J. /s/_________
Jenkins, J.