Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV065145
Pollak, Acting P. J.
Defendants and cross-complainants William Dixon and Milena Belloni appeal from a judgment entered in favor of plaintiff and cross-defendant Judith Kliban in this dispute between neighbors regarding the boundary between their adjacent properties. Dixon and Belloni contend the trial court erred in finding that under the agreed boundary doctrine a fence built in 1982 by Kliban’s deceased husband and the previous owner of Dixon and Belloni’s property represents the boundary. We conclude that the court properly applied the doctrine and shall affirm the judgment.
Factual and Procedural History
In November 2006, Kliban filed a complaint against Dixon and Belloni seeking, among other things, to quiet title based on an agreed boundary. The following evidence was presented at a court trial in September 2009:
Kliban’s complaint included additional causes of action for declaratory and injunctive relief, adverse possession and prescriptive easement that were not prosecuted through trial. Dixon and Belloni also filed a cross-complaint against Kliban for quite title, ejectment and injunctive relief that is not at issue in this appeal.
In 1979 Kliban moved into the home of her husband, Bernard Kliban, at 206 Baltimore Avenue in Corte Madera. She inherited the property from her husband when he died in 1990. The adjacent property located at 214 Baltimore Avenue was owned by Timothy Temple from at least 1979 until his death in 1989. Dixon and Belloni purchased the property at 214 Baltimore Avenue in 1990.
In 1982, Mr. Kliban and Mr. Temple had a fence built between their two lots. Prior to constructing the fence, there were no physical markings of the boundary between the two properties. Kliban testified that she was present at a conversation between her husband and Mr. Temple during which the fence construction was first discussed. During that conversation Mr. Kliban and Mr. Temple indicated that they wanted to build a fence to increase their privacy and to keep deer off the property. Both stated that they did not know where the property line was located but that they wanted to build the fence on the boundary between the two properties. Approximately one to two months after this conversation, the three met with an architect on the property to discuss the location of the fence. Referring to a map of the property, Kliban testified, “we went to the back of the property where that Cypress trunk is marked off. And we and [the architect] pulled a string line from another point on the northwestern point part of my property and ran it to the tree marking off the exact amount.” When the string landed in the middle of the Cypress tree, Mr. Kliban stated that he did not want to harm the tree and agreed to “give that tree” to Mr. Temple. Further along, Mr. Temple and Mr. Kliban agreed to build the fence around a large stump rather than incur the expense of removing it. Kliban continued, “From that point, we ran the string down to the street, taking into consideration that there were several elm trees that were along that run, and... because we had been spending money every year to have the elm trees treated for elm leaf beetles so they wouldn’t get Dutch Elm disease, [Mr. Temple] felt that we should have the elm trees on our side of the property.” Thereafter, the fence was built in conformity with these agreements.
Dixon testified that when he purchased the property in 1990 he assumed the fence was on the property boundary. Sometime after 2000, however, he realized his lot was about three feet narrower and Kliban’s lot was about three feet wider than county records indicated. When he asked Kliban about the discrepancy, she said that they had a survey done to establish the location of the fence and would get him a copy of the survey. Despite his repeated requests, Kliban did not produce a survey. In 2002 or 2003, Dixon and Belloni hired a surveyor who confirmed that the fence is located approximately 15 inches from the recorded property line in the rear of their property and approximately 30 inches from the property line in the front of their property. An expert witness testified on behalf of Dixon and Belloni confirming the results of the survey.
The court entered judgment in favor of Kliban quieting title along the fence line. The court’s statement of decision explains that Kliban’s testimony satisfied each of the necessary elements of an agreed boundary, and that “[u]nder the agreed boundary doctrine, once established, the boundary becomes in legal effect the true boundary between adjacent properties, regardless of its accuracy, and is binding upon parties to the agreement and their successors by subsequent deeds.”
Dixon and Belloni filed a timely notice of appeal.
Discussion
Dixon and Belloni contend that the court erred in finding in favor of Kliban under the agreed boundary doctrine. They argue that (1) Kliban’s testimony regarding the agreement between her husband and Mr. Temple as to the agreed boundary of the property was inadmissible, and (2) the agreed boundary doctrine is inapplicable as a matter of law where, as in this case, the recorded title documents readily permit identification of the true boundary between the properties. We disagree.
As to the first contention, Dixon and Belloni argue that Kliban’s testimony regarding the conversations between Mr. Temple and Mr. Kliban should have been excluded as inadmissible hearsay. They acknowledge that Kliban’s testimony “concerning the uncertainty by Mr. Kliban and Mr. Temple about the location of the boundary line” was admissible under Evidence Code section 1323, which provides a hearsay exception for statements “concerning the boundary of land.” But they argue that other portions of Kliban’s testimony, “particularly the testimony concerning the alleged agreement as to where the fence would be located, is clearly hearsay.” However, Kliban’s testimony regarding the discussion between her husband and Mr. Temple is not hearsay. Her testimony was not introduced to establish the fact that the fence was placed on the recorded boundary line. Rather, the testimony was introduced as evidence of the two speakers’ state of mind, to show their uncertainty as to the location of the property line and their intention to treat the fence as the boundary between their properties. Moreover, if any of the testimony were to be considered hearsay, it would fall within the exception in Evidence Code section 1323. Neither declarant was living at the time of trial, Kliban was present and overheard their 1982 conversations, and there is no reason to doubt the trustworthiness of what they said to each other. Accordingly, the trial court did not abuse its discretion in overruling Dixon and Belloni’s hearsay objections.
Evidence Code section 1323 provides: “Evidence of a statement concerning the boundary of land is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and had sufficient knowledge of the subject, but evidence of a statement is not admissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”
Alternatively, Dixon and Belloni assert that Kliban’s testimony regarding the agreed boundary should have been excluded on the ground that it is contrary to alleged judicial admissions in her verified complaint. Kliban’s complaint alleges that her husband and Mr. Temple entered into an agreement to construct a fence “in the vicinity of the border of the parties’ respective properties.... [¶] The property line as agreed to and established by the construction of the fence is the property line that has been acknowledged by all the predecessor owners of 206 and 214 Baltimore since the early to mid 1980’s. [¶]... [¶] In or about 1990, [Kliban] advised [Dixon and Belloni] of the correct location of the property line dividing their respective properties. [¶] The portion of the property constituting the subject matter of this lawsuit (‘the disputed area’) is comprised of a roughly rectangular area lying toward the west of [Dixon and Belloni’s] property at the east side of [Kliban’s] property. The disputed area measured approximately 150 linear feet running roughly south to north. Located within the disputed area is the fence designed, constructed and/or maintained by [Kliban] and her predecessors in interest.... [¶] Despite [Kliban’s] repeated communications to [Dixon and Belloni] to acknowledge the correct boundary line and to acknowledge [Kliban’s] right to the disputed area, [Dixon and Belloni] have refused, and continue to refuse to do so.”
In their opening brief, Dixon and Belloni argue that Kliban’s testimony that she did not speak with her neighbors in 1990 regarding the property boundary was contrary to these allegations in her complaint. Any discrepancy with respect to whether or not Kliban discussed the boundary with Dixon or Belloni in 1990 is irrelevant, however, to the formation of an agreed boundary. In their reply, Dixon and Belloni clarify their argument by stating “Obviously, [Kliban] under penalty of perjury alleged in her verified complaint that there was a correct boundary line and that the fence erected by Mr. Kliban and Mr. Temple was in the disputed area, i.e., [Kliban] acknowledged that the fence was not on the correct boundary line and that there could have been no uncertainty concerning the boundary line.” This latter argument is based on an erroneous reading of the allegations in the complaint. The only reasonable reading of the complaint is that when Kliban claimed to have advised her neighbors of the “correct” boundary, she was advising them that the fence was the “correct” boundary, not the boundary described in the recorded deeds. The court did not err in admitting Kliban’s testimony.
Finally, the trial court did not err in finding, based on Kliban’s testimony, that the agreed boundary doctrine is applicable. “The agreed-boundary doctrine constitutes a firmly established exception to the general rule that accords determinative legal effect to the description of land contained in a deed. One early case thus explains the basis for the agreed-boundary doctrine: ‘[T]he rule has been established that when such [coterminous] owners, being uncertain of the true position of the [common boundary described in their respective deeds], agree upon its true location, mark it upon the ground, or build up to it, occupy on each side up to the place thus fixed and acquiesce in such location 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, such line becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location, as it may appear by subsequent measurements.... [¶]... [¶] The object of the rule is to secure repose, to prevent strife and disputes concerning boundaries, and make titles permanent and stable.... If a measurement is made and the line agreed on and acquiesced in as required by this rule, it is binding on and applicable to all parties to the agreement and their successors by subsequent deeds.’ ” (Bryant v. Blevins (1994) 9 Cal.4th 47, 54-55 (Bryant).) Although well established in California, “the doctrine properly may be invoked only under carefully specified circumstances.” (Id. at p. 55.) The elements required to prove title by agreed boundary are “ ‘[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.’ ” (Ibid., quoting Ernie v. Trinity Lutheran Church (1959) 51 Cal.2d 702, 707.) In this case, Kliban testified that the her husband and Mr. Temple did not know the precise location of the boundary and they “decided to meet between the two properties and determine where the boundary would be.” Kliban’s testimony provides substantial evidence of uncertainty, an agreement to settle the boundary and the passage of time sufficient to support application of the agreed boundary doctrine.
Contrary to the contention of Dixon and Belloni, the existence of an adequate description of the boundary in the recorded deeds does not defeat Kliban’s showing. In Armitage v. Decker (1990) 218 Cal.App.3d 887, 900, the court explained, “Since the critical question is the parties’ intent to create a boundary to settle their subjective uncertainty as to the true line, the weight of authority has considered it immaterial that the true line could have been ascertained by a proper survey.” (See also Ernie v. Trinity Lutheran Church, supra, 51 Cal.2d at pp. 707-708 [“It is not required that the true location be absolutely unascertainable”]; Silva v. Azevedo (1918) 178 Cal. 495, 498 [rejecting the argument that “since the true location of the line could always have been determined by a correct measurement, ” the agreed boundary doctrine is inapplicable].) In Bryant, supra, 9 Cal.4th at page 54, the California Supreme Court confirmed this long-standing rule when it expressly declined “to limit application of the agreed-boundary doctrine to instances in which existing legal records are inadequate to settle a boundary dispute.” The court explained that “such an inflexible rule would risk destabilizing long-standing agreements-made in good faith by coterminous property owners in order to resolve uncertainty as to the location of their common boundaries-that might, for any one of several reasons, be at variance with legal property descriptions or survey results.” (Ibid.)
In Bryant, the court refused to infer an agreement to settle a disputed boundary based solely on the existence of a fence that had been constructed between the properties. The court observed that “there is no evidence that the original barbed wire fence... was erected to resolve uncertainty as to the location of the property boundary that separated the west and east halves of the original lot. The record is silent as to when, or why, the fence was built. Although the presence of the fence since at least 1977 suggests a lengthy acquiescence to its existence (on the part of plaintiffs’ predecessors in interest), that circumstance alone did not nullify [the] other requirements-namely, that there be an uncertainty as to the location of the true boundary when the fence was erected, and an agreement between the neighboring property owners to employ the location of the fence as the means of establishing the boundary.” (Bryant, supra, 9 Cal.4th at p. 58.) The court reiterated that “when existing legal records provide a basis for fixing the boundary, there is no justification for inferring, without additional evidence, that the prior owners were uncertain as to the location of the true boundary or that they agreed to fix their common boundary at the location of a fence.” (Ibid., italics added.) Unlike the situation in Bryant, Kliban’s testimony, which the trial court accepted, established that the former property owners did not know where the property line was located and agreed to the placement of the fence to resolve their mutual uncertainty.
For the same reason, Mesnick v. Caton (1986) 183 Cal.App.3d 1248and Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296, both cited by Dixon and Belloni, are also distinguishable. In Mesnick, the court held that the requirements of the agreed boundary doctrine were not satisfied where the only testimony about the original fence builder’s intent was from a neighbor who testified that the prior owners “had not engaged in any argument or discussion concerning the boundary line.” (Mesnick, p. 1254.) Likewise, in Mehdizadeh, the court found that there was no substantial evidence to support an agreed boundary where “[n]o evidence indicates that [the original fence builders] had any uncertainty about the location of the boundary when the fence was built. No evidence indicates that [the fence builders] agreed to locate and build the fence to resolve that uncertainty.” (Mehdizadeh, at p. 1304.) The court explained, that “without more, ... [the] lengthy period of acquiescence does not satisfy the agreed-boundary doctrine.” (Ibid.) Here, the evidence that was missing in those cases was provided by Kliban’s testimony. Substantial evidence thus supports the court’s findings, under which the agreed boundary doctrine was properly applied.
Disposition
The judgment is affirmed. Kliban shall recover her costs on appeal.
We concur: Siggins, J., Jenkins, J.