Opinion
C076188
03-02-2017
ORMISTON FAMILY ASSOCIATION, Plaintiff, Cross-defendant and Appellant, v. BEAN ESTATES, INC., Defendant, Cross-complainant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 156528)
In this boundary dispute between neighboring landowners, plaintiff and cross-defendant Ormiston Family Association (Ormiston) appeals from a judgment after a bench trial, entered in favor of defendant and cross-complainant Bean Estates, Inc. (Bean). Ormiston contends the trial court erred by allowing a property line described in deeds for many years and an old survey to be supplanted by a new survey showing a different boundary. Ormiston fails to provide us with any supporting legal authority.
Ormiston also argues the boundary between itself and Bean was established by our unpublished opinion in prior litigation between Ormiston and the owner of land to the west of Bean's land. As we shall explain, that is not correct.
Ormiston's opening brief also presents a substantial evidence argument, but Ormiston expressly withdraws that argument in its reply brief.
We affirm the judgment.
FACT AND PROCEEDINGS
Ormiston's presentation of this appeal does not demand a detailed recitation of the evidence.
Ormiston and Bean own adjoining parcels of rural land in Clipper Mills, with a common boundary line on the southern border of Ormiston's parcel and the northern border of Bean's parcel. They disagree as to the boundary line. They filed cross-complaints against each other, each claiming ownership of a three-acre strip of land between their parcels.
Ormiston, which acquired its parcel in the early 1940's, claims the property line is the "McCoy line" as determined in a survey conducted by a Butte County surveyor in 1927. We accept, for purposes of this appeal, Ormiston's assertion that this is the property line shown in all deed descriptions for over 138 years. We also accept, for purposes of this appeal, that Ormiston has used the disputed strip as a dump site and tree farm for logging timber.
Bean claims the boundary line is the "Wulfert line" (110 feet north of the McCoy line), as established by a survey conducted by Thomas M. Wulfert and Company, apparently in 2007, but not recorded until May 2013 -- two weeks before this trial started.
Ormiston's southern border adjoins not only Bean's property but also a parcel to the west of Bean's property. In 2010, Ormiston got involved in a boundary dispute with William Prater, owner of land to the west of Bean's land. Ormiston's southern boundary separated its property, not only from Bean's property, but also from Prater's property. Ormiston and Prater entered into a dispute whether the true boundary was the McCoy line or the Wulfert line. A jury found Ormiston owned the disputed property, but the verdict form did not indicate whether the jury reached its decision based on a deed or on a claim of adverse possession. We affirmed the judgment in an unpublished opinion, Ormiston Family Association v. Prater, filed October 7, 2011, C065502. Our opinion, which was submitted to the trial court in this case, specifically stated we could uphold the verdict if substantial evidence supported either theory -- deed or adverse possession. We briefly noted there was evidence from which the jury could find an error in the deed, but we went on to discuss in more detail that Prater failed to show insufficiency of evidence as to adverse possession.
After our opinion in the Ormiston-Prater litigation, this litigation followed. After the bench trial, the trial court concluded the true boundary was as determined by the Wulfert Survey and entered judgment in favor of Bean.
DISCUSSION
I
Ormiston Has Abandoned Its Substantial Evidence Argument
Ormiston's opening brief argues the trial court erred by relying on the new survey, because it is an inaccurate survey by a biased surveyor based on an incorrect starting point, that is, that there is no substantial evidence to support the trial court's finding that the Wulfert line is the correct boundary between the Ormiston parcel and the Bean parcel. However, Ormiston's opening brief also says the old survey should control as a matter of law, "regardless of the accuracy of the new survey[.]" Ormiston's reply brief expressly abandons any substantial evidence challenge, stating, "This court is being asked, not to make a factual determination of which boundary is more accurate . . . [or which surveyor is more credible] but to rule that as a matter of law, a new survey should not supplant a long-standing an [sic] accepted legal description of property boundaries found in numerous recorded deeds." Ormiston's reply brief also states: "Regardless of the accuracy of new techniques or the skills and the brilliance of [Bean's] surveyor," the old boundary description that has been used for 138 years should control over the new survey. Accordingly, Ormiston has abandoned any challenge to accuracy of the new survey.
II
Prior Litigation
Ormiston claims the trial court in this case was bound by our unpublished opinion establishing the McCoy line as the boundary in the prior litigation between Ormiston and William Prater, the owner of land to the west of Bean's land. (Ormiston Family Association v. Prater, supra, C065502.) Besides this contention being forfeited by Ormiston's failure to offer any authority whatsoever (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785), the contention clearly lacks merit, since that verdict may have been based on adverse possession rather than deed description.
III
Ormiston's Legal Argument is Meritless
Ormiston argues that, as a matter of law, a property description in an old survey that has been used in deed descriptions for 138 years must control over a new survey. However, Ormiston cites no legal authority whatsoever supporting this proposition.
Instead, Ormiston cites only inapposite authority about the "agreed-boundary doctrine" -- despite expressly admitting in its opening brief that the doctrine does not apply here.
"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." (Bryant v. Blevins (1994) 9 Cal.4th 47, 54.) The party claiming the land pursuant to the doctrine bears the burden of establishing that there is "[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." (Id. at p. 55.)
Ormiston cites authority that the agreed-boundary doctrine should not supersede recorded deed descriptions, where all deeds are consistent, and application of the agreed-boundary doctrine would not only destroy the significance of recorded instruments but would also foster litigation rather than preventing it. (Armitage v. Decker (1990) 218 Cal.App.3d 887, 903; Mesnick v. Caton (1986) 183 Cal.App.3d 1248, 1256.)
However, no one is invoking the agreed boundary doctrine in this case and, to the contrary, Ormiston's opening brief on appeal affirmatively states under a separate subheading: "This isn't a case of agreed boundary." (Orig. emphasis.) Ormiston goes on to say: "In this case, such doctrine [agreed boundary] doesn't apply because there was no uncertainty as to the true boundary. Rather, everyone agreed on the proper boundary -- the one identified in the Schultz-Pratt deed [citation to record] and described by McCoy in his survey from 1927." Ormiston goes even further: "Appellant[] [is] not claiming the disputed parcel due to an agreed boundary. Rather they [sic] claim their [sic] property due to the surveyed boundary line and center as described in" the Schultz-Pratt deed and McCoy survey and used in every deed since. Ormiston finally determines its case by adding: "This, then, isn't a case to determine if the doctrine of agreed boundary should overturn a long-standing survey, but a case of whether a questionable recent survey, however accurate it might be, should overturn a legal description used in numerous deeds and surveys that has been continuously relied on by the parties and their neighbors for decades."
We conclude Ormiston fails to show any basis for reversal of the judgment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
HULL, J. We concur: BLEASE, Acting P. J. MURRAY, J.