Knerr v. Mauldin

Filed 8/2/06 Knerr v. Mauldin CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

This is a boundary dispute between neighbors Kristie Knerr and Paula Mauldin and Mauldin's successors-in-interest, Lucio Oliviero and Lana V. Mackahan.[1] Mauldin was the prevailing party below. The parties offered conflicting expert testimony on which of two surveys the trial court should use in resolving the dispute. We conclude that the determination is one of fact and that the trial court's finding in favor of Mauldin is supported by substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2001, appellant Kristie Knerr purchased several lots in a subdivision known as the Chatsworth Lakeview Annex (subdivision). One of her lots, lot 214, is adjacent to and west of respondent Mauldin's lot 203. Mauldin purchased lot 203 and other lots in the subdivision in 1989. The description of the properties in Knerr's and Mauldin's deeds is by reference to a map prepared in 1926 creating the subdivision (1926 map). It shows that the subdivision contains 569 parcels, most of them 70 feet wide by 100 feet long. The subdivision's southern boundary is the Los Angeles-Ventura county line.

At the time she purchased the property, Mauldin had a survey done by a licensed surveyor, South Bay Engineering Corporation (South Bay). Mauldin constructed a fence on the boundary between lots 203 and 214 and made several other improvements consistent with South Bay's survey.[2]

At the time Knerr purchased lot 214, Mauldin's fence was in place as constructed in 1989. Knerr apparently accepted Mauldin's fence as the eastern boundary of lot 214. Based on the location of Mauldin's fence, Knerr began constructing a fence on what she understood to be the western boundary of lot 214 in October 2002.

Shortly after construction began, her neighbor to the west, Mr. Smoghi, told Knerr that her fence encroached 20 to 30 feet onto his property and asked her to remove it. He based this contention on a survey prepared by a licensed surveyor.

Knerr hired her own surveyor, Stephen Hughey, to survey the property. In October 2002, Hughey prepared a survey showing that Knerr's fence encroached approximately 10 feet onto Smoghi's property. Hughey's survey also showed that Mauldin's fence encroached 10 feet onto Knerr's property.

Based on Hughey's survey, Knerr relocated the fence between her and Somagi's lots approximately 10 feet to the east. Knerr informed Mauldin that her fence encroached 10 feet onto Knerr's property and asked Mauldin to relocate the fence. Mauldin refused.

Knerr filed a complaint for quiet title, trespass, and injunctive relief against Mauldin. During a four-day bench trial, the trial court heard expert testimony from Hughey, as well as Dr. Howard Turner and Terrence O'Neill, all licensed land surveyors.[3]

Knerr's Evidence

Hughey testified he started his survey at a monument labeled "S-10" as shown on the 1926 map. That monument was to the east and outside the subdivision, but Hughey used it as a starting point "because it's the only monument[] that can be shown without a doubt to have been perpetuated by records from various public agencies."

Hughey testified he "follow[ed] the footsteps of the original surveyor" by following the courses and bearings on the 1926 map. He started with S-10, proceeded west to the southeast corner of the subdivision as shown on the 1926 map, and then continued west to the southwest corner of the subdivision. He stated the distances shown on the 1926 map for the southern boundary of the subdivision were correct. He used the proration method to determine the boundary between the Knerr and Maudlin lots.[4]

Hughey criticized South Bay's method of survey because "it found and established all the east/west locations of these lots on the basis of one monument." That monument was located in the interior of the subdivision at the northwest corner of lot 159. Hughey believed the lot 159 monument should not have been used by South Bay as a starting point because it was not set by the surveyor who prepared the 1926 map.

Dr. Turner testified he reviewed the Hughey and South Bay surveys, the 1926 map and other surveys. He found the record distances shown on the 1926 map for the exterior boundaries did not close by 10 feet. He determined the error occurred in the east side of the subdivision, not on the west side where the Knerr and Mauldin lots are located, but could not find the exact location of the error.

Dr. Turner said that the interior monuments in the subdivision, including the lot 159 monument, are "record monuments." He explained: "[T]ypically what happens is somebody accepts the pipe and somebody else accepts it and somebody else accepts it. If everybody accepts it and there [are] no problems, then it is a monument by reputation."

Dr. Turner concluded that the boundary between lots 203 and 214 shown on South Bay's survey is 10 feet too far to the west of the record line shown on the 1926 map and that the boundary shown on Hughey's survey is three feet too far to the east.

Mauldin's Evidence

Terence O'Neill testified he had recently prepared a survey of an area in the subdivision near the Knerr and Mauldin lots. He reviewed the South Bay and Hughey surveys, as well as those prepared by Charles Eades and Louis Zehfuss. O'Neill located a number of monuments Eades and Zehfuss had set in the interior of the subdivision. These monuments had been in the ground since the 1960's. Surveys prepared since then showed a "long-term acquiescence" in and a "definite pattern of respecting occupation" of these monuments by subsequent surveyors. O'Neill said that most surveyors after Eades and Zehfuss relied on the monuments they set.

O'Neill did not give a lot of weight to the S-10 monument because it was more economical to measure from a monument that was closer to the area of the survey, here the lot 159 monument, rather than one further away, such as S-10. O'Neill testified that South Bay's method of occupying interior monuments placed by Eades and Zehfuss and harmonizing them is a proper method of survey and the one he would have used under the circumstances. O'Neill said South Bay's survey harmonized with the monuments set by Eades and Zehfuss and with other surveys of the area. He said South Bay's survey "meets the surveying standards as I have known for 45 years."

The trial judge found that the boundary line established by South Bay's survey was the true boundary between lots 203 and 214 and denied Knerr all relief. Knerr's motion for a new trial was denied.

In this appeal, Knerr asserts that a single issue of law is presented--which of the two conflicting surveys uses the proper surveying method to establish the true boundary between Knerr's lot 214 and Mauldin's lot 203. Mauldin asserts the issue is one of fact and the trial court's decision is supported by substantial evidence.

An amicus curiae brief was filed on Knerr's behalf by the California Land Surveyors Association.

DISCUSSION

Knerr asserts that the location of a disputed boundary presents a question of law which receives de novo review on appeal. Mauldin contends the issue is one of fact governed by the substantial evidence standard of review.

Knerr cites no authority supporting her assertion that a boundary line dispute presents an issue of law. In fact, longstanding precedent consistently treats the issue as one of fact. (See, e.g., Miller v. Cuelho (1891) 90 Cal. 549, 552 [rejecting argument that which of two conflicting surveys established actual boundary line is a question of law]; Kraemer v. Superior Oil Co. (1966) 240 Cal.App.2d 642, 646 [determination of whether fence encroaches on neighboring property is a question of fact]; Luginbuhl v. Hammond (1960) 179 Cal.App.2d 350, 355 [issue of which of two conflicting surveys conformed to established legal principles is one of fact, not law]; Spear v. Smith (1958) 161 Cal.App.2d 744, 748 [in boundary disputes, true location of survey of tract of land is question of fact].)

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.)

The appellate 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].)

Knerr asserts that Hughey's method of survey is the only proper method because he used as a starting point a monument shown on the map creating the subdivision and incorporated by reference into the parties' grant deeds. We disagree.

Hughey's survey method may be acceptable where there are no interior monuments of record. Here, such monuments do exist. Mauldin's expert testified that surveys were done by Eades and Zehfuss in the 1960's. They set monuments marking the corners of interior lots near to lots 203 and 214. Knerr's own expert, Dr. Turner, acknowledged that the interior monuments used by South Bay were monuments of record.

Where, as here, there is an established interior monument near the lots being surveyed, it is that monument that should be used. (See, e.g., State of California v. Thompson (1971) 22 Cal.App.3d 368, 379 ["Although respondent contends that [appellant's surveyor] ought to have commenced his survey from the east in order to literally 'follow in the footsteps' of [the original surveyor], this argument is without merit. A survey from the nearest established corner is least liable to error"].)

"[W]e find nothing in the record or in the arguments of counsel which would entitle us to question the trial judge's proper application of accepted rules or precedent in analyzing the proof and in properly evaluating it. In a specialty field such as land surveying a trial court is entitled to rely heavily upon the opinions and supporting reasons given by the experts who testified and unless the conclusions reached by the court are palpably erroneous they must be accepted by a reviewing court." (Kraemer v. Superior Oil Co., supra, 240 Cal.App.2d at p. 648.)

The judgment is affirmed. Respondents shall recover costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Henry J. Walsh, Judge

Superior Court County of Ventura

______________________________

Law Office of Harry J. Gerrity, Harry J. Gerrity for Plaintiff and Appellant Kristie Knerr.

Gutierrez, Preciado & House, LLP, Calvin House for California Land Surveyors Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Marshall & Beecher, Robert O. Marshall for Defendants and Respondents Paula A. Mauldin, Lucio Oliviero and Lana V. Mackahan.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Real Estate Attorney.

[1] During the pendency of this litigation, Oliviero and Mackahan purchased Mauldin's interest in her property. For convenience, we refer to respondents collectively as "Mauldin."

[2] The parties disagree whether the fence is exactly on the boundary shown on South Bay's survey. This disagreement is not material to our decision and will not be discussed further.

[3] The testimony of the parties and other lay witnesses will not be summarized here as the only testimony relevant to the issue before us is that provided by the expert witnesses. (See Lentell v. McBride (1936) 7 Cal.2d 263, 264-265.)

The qualifications of the expert witnesses were not disputed by the parties; therefore, we will not unnecessarily lengthen this opinion by including their curriculum vitae.

[4] The "proration" method uses exterior boundary dimensions to equally distribute all east/west and north/south distances. It apportions any errors in dimensions equally among the lots in the subdivision.