Bloxham v. Saldinger

• Decision Date: 01 August 2014
• Docket Number: H038040
• Court: California Court of Appeals Court of Appeals
• Parties: JACQUES BLOXHAM et al., Plaintiffs, Cross-defendants and Appellants, v. TODD SALDINGER et al., Defendants, Cross-complainants and Appellants.

JACQUES BLOXHAM et al., Plaintiffs, Cross-defendants and Appellants, v. TODD SALDINGER et al., Defendants, Cross-complainants and Appellants.

H038040

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

August 1, 2014

CERTIFIED FOR PUBLICATION

(Santa Cruz County Super. Ct. No. CV159793)

Jacques Bloxham (or Jack Bloxham) and Janette Magoc (the Bloxhams) and Todd Saldinger and Barbara Saldinger, also known as Barbara Zylbert,¹ (the Saldingers) disputed the location of their common property lines. At trial, the determinative issue was the location of the western boundary of the Shoquel Augmentation Rancho (more recently denominated the "Soquel Augmentation Rancho"; hereinafter sometimes "Rancho"), a line roughly seven miles long. The deed descriptions of the parties' parcels at issue called to that western boundary line of the Rancho (hereinafter "Rancho line").

The exterior boundaries of the Rancho were surveyed by United States Deputy Surveyor John Wallace in 1858, and the plat of the Rancho specified that it encompassed over 32,702 acres. The corners, or termini, of the Rancho line are SA-2 (at the southerly end) and SA-3 (at the northerly end). The parties' surveyors reached different conclusions about the location of the Rancho line and the parties' common boundaries.

Following a court trial, which included a judicial view of the property, the court quieted title in favor of the Bloxhams. On appeal, the Saldingers contend that the survey done by their surveyor, Stanley Gray, was sufficient as a matter of law because it "sufficiently" utilized the original 1858 survey, while the survey done by the Bloxhams' surveyor, Paul Jensen, was insufficient as a matter of law because it did not. We find no basis for concluding that Jensen's 2009 survey, upon which the Bloxhams relied at trial, was insufficient as a matter of law.

In a cross-appeal, the Bloxhams maintain that the trial court abused its discretion by denying their motion to recover their cost of proving the location of the common boundary lines of the parties' properties based on Barbara Saldinger's failure to admit a request for admission (See Code Civ. Proc., § 2033.420, subds. (a) & (b)). We find no abuse of discretion.

Accordingly, we affirm the judgment.

IProcedural History

The Bloxhams filed a verified complaint alleging causes of action for trespass, quiet title, and injunctive relief. The Saldingers cross-complained. Their verified second amended cross-complaint asserted causes of action for quiet title, slander of title, trespass, and injunctive relief.

The case was tried to the bench. In addition to the evidence presented in the courtroom, the judge visited Soquel Creek, a redwood "witness tree" stump toward the southerly end of the Rancho line, a redwood "line tree" stump located near the properties in dispute, the disputed area, and the Laguna Sarjento at the northerly end of the Rancho line. The trial court determined that the Bloxhams' surveyor, Jensen, "tied back" to the original federal survey, and "the location of the Rancho line as shown by Jensen is correct." It concluded that the Bloxhams' Parcel Four was senior to the Saldingers'property and, consequently, the Bloxhams' Parcel Four "must be located first along the Rancho line before determining where the junior parcel, the Saldinger property, is located" and "[a]ny overlap must be resolved in favor of Bloxham."

After trial, the Bloxhams filed a motion for an order awarding costs of proof in the amount of $123,196.58 for the failure of defendant Barbara Saldinger to admit facts in response to a request for admission (see Code Civ. Proc., § 2033.420). The ground for the motion was that defendants "had no reason to deny that the boundary between the litigants' property was as claimed by plaintiffs." The Saldingers opposed the motion. By order filed August 29, 2010, the trial court denied the motion.

The court's statement of decision and judgment in favor of the Bloxhams with respect to quiet title, slander of title, and injunctive relief was filed on February 14, 2012.²

IIAppeal

A. Background

The Bloxhams own real property, which includes Parcel Four, off Laurel Road. The Del Dot family sold the first parcel of their lands, now Bloxhams' "Parcel Four," to the Bloxhams' grandparents, the Chabres. The Bloxhams' property now includes approximately 28 to 30 acres.

Predecessor owners of the Saldingers' property, the ones who built the house on the property, planted a line of cedar trees in the disputed area as a privacy screen. The trees roughly marked the boundary line but there was never an agreement as to the exact boundary line. In about late November 2004, Jack Bloxham discovered an excavation, approximately 50 feet by 60 feet, west of the trees at the north end of the line of trees.

Jensen, a professional land surveyor for roughly 26 years, surveyed the Bloxhams' property and testified on their behalf at trial. Martin Marcott, a professional land surveyor licensed since 1975 and former Santa Clara County Surveyor, testified as an expert on behalf of the Bloxhams.

Gray, a professional land surveyor licensed since 1992, surveyed the Saldingers' property and testified on their behalf at trial. Walter Robillard, an attorney and member of the Georgia bar, a registered land surveyor, and a forester, testified as an expert on behalf of the Saldingers.

B. Bloxhams' Parcel Four and Senior Rights

The parties' properties are located in Santa Cruz County east of Highway 17. The Bloxhams' Parcel Four and the Saldingers' "Parcel II" (hereinafter "Parcel Two") share common boundaries and both parcels are described in their respective grant deeds with reference to the Rancho line and each parcel's description begins and ends at a station on the Rancho line.³ The Bloxhams' Parcel Four is quadrilateral shaped and shares acommon boundary along its southerly boundary and part of its easterly boundary with the Saldingers' Parcel Two, which the Saldingers describe as a "small, hockey-stick-shaped parcel" located between the Bloxhams' Parcel Four and their "Parcel I" (hereinafter "Parcel One").⁴ The parties agree that the location of the Rancho line determines the common boundaries of their properties.

At trial, there was no dispute that the Bloxham's Parcel Four enjoys senior rights over the Saldingers' property. Gray, the Saldingers' surveyor, explained, as to senior rights, that "[i]n a meets [sic] and bounds legal description, the parcel that's senior gets [its] full width and length, and if there is an overlap the junior parcel would give way to the senior parcel." A respected treatise states: "If a grantor conveys part of his or her land, he or she cannot at a later date convey more than his or her remainder. The first buyer has what is known as senior rights, and the second buyer has junior or remainder rights. The senior buyer is entitled to all land conveyed to him according to his description; the junior buyer is entitled to all land conveyed to him, provided it does not interfere with the senior rights. If such interference occurs, the junior deed loses." (3 Miller & Starr, Cal. Real Est. (3d ed. 2011) § 8:72.)

At trial, Jensen acknowledged that, in this case, senior rights did not alter the location of the parties' disputed common boundaries once they were properly determined with respect to the Rancho line.

C. Original Official Survey of the Rancho Line

At trial, Jensen confirmed that a golden rule of surveying is "to follow . . . the footprints of the original surveyor." The parties essentially agree that Wallace's 1858"final survey of the Rancho Shoquel Augmentation, Martina Castro, Confirmee," fixed the location of the Rancho line.⁵

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 [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, wherewere 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."].)

In Weaver v. Howatt (1911) 161 Cal. 77, a quiet title action, the issue was the location of the boundary line between the parties' lands. (Id. at pp. 78-79.) They shared a "common section line," which was "fixed by the official survey of the United States, from whom both parties derive[d] title." (Id. at p. 79.) The Supreme Court stated: "It is for the trial court, 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." (Id. at p. 86.)

In this case, more than 150 years have passed since the original survey. Neither surveyor found any original corner monument set by Wallace at either SA-2 or SA-3 as described in his field notes of the 1858 survey. Both surveyors claimed to have ascertained, as nearly as possible based upon Wallace's field notes...