I can’t make this stuff up, folks. My imagination isn’t that great. If it were, my name would be Walt Disney. Everyone knows that Walt had a fantastic imagination and was able to make fantasy come to life.
This is exactly what our case-in-chief, Zen Temple of America v. Nelidov,1 (referred to as Temple I & II, see footnote) is all about--bringing fantasy to life. We are once again in the great state of California. This time our case involves Zen Buddhists; Master Seol Jo Lee; Master Lee’s adjoining landowners, the Nelidovs; lawyers; surveyors; realtors--and money.
This case is also--primarily--about a fantasy boundary dispute brought to life by a surveyor’s misguided duty to his client and a bogus survey, which resulted in a slander of title and nuisance action. I’ve been telling my seminar attendees that your survey has the potential to be the basis for a slander of title action. This is that case.
Slander of TitleAs did the California Court of Appeals, we will first look at the issue of slander of title. In some jurisdictions, including California, slander of title is also known as disparagement of title. The California Court describes it this way:
Disparagement of title … occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss. The elements of the tort are (1) publication, (2) absence of justification, (3) falsity and (4) direct pecuniary loss. What makes conduct actionable is not whether a defendant succeeds in casting a legal cloud on plaintiff’s title, but whether the defendant could reasonably foresee that the false publication might determine the conduct of a third person buyer or lessee. The gravamen of the tort is the damage to the salability of the property.2
What all of this means is that a surveyor, a surveyor’s actions, or the results of a survey (i.e., monuments set, lines cut, maps produced, etc.) can be the basis for a slander of title action if the surveyor, the surveyor’s actions or the survey results are false (or bogus) as to the true location of the boundary line, and if the affected landowner suffers a “pecuniary loss.” The gravamen is the material part of the grievance, complaint, charge or cause of action. As the California Court stated, the “gravamen of the tort is the damage to the salability of the property.” There doesn’t have to be an actual sale of the property or a purchaser standing by ready to purchase. The ability to sell the property or the property’s fitness to be sold must be impaired in some way.
A “pecuniary loss” is simply a loss associated with money or value. Expounding on the subject, the court in our case-in-chief stated:
The Second Restatement of Torts defines “pecuniary loss” as: (1) The pecuniary loss for which a publisher of injurious falsehood is subject to liability is restricted to (a) the pecuniary loss that results directly and immediately from the effect of the conduct of third persons, including impairment of vendibility or value caused by disparagement, and (b) the expense of measures reasonably necessary to counteract the publication, including litigation to remove the doubt cast upon vendibility or value by disparagement. (2) This pecuniary loss may be established by (a) proof of the conduct of specific persons, or (b) proof that the loss has resulted from the conduct of a number of persons whom it is impossible to identify.3
In other words, not only is the tortfeasor (the surveyor, or any other wrongdoer) liable for actual damages done, the plaintiff (the property owner adversely affected) will also be able to recover court costs and attorney’s fees. These latter costs can, and in many cases will, far exceed the actual damages done. Finally, if the slander action involves either oppression, fraud, wantonness or malice, in many jurisdictions punitive damages may also be awarded. Without going into a long discussion of just what these terms mean, suffice it to say that ignorance and intentional disregard for the rights, including property rights, of others is a common thread that runs through these torts.
The Facts of the CaseAs with all court opinions, much is left to interpretation and reading between the lines when it comes to the facts of the case. Without a complete copy of the record of the case, it’s impossible to know all of the facts, including the nitty-gritty survey details we want to see. The appellate court opinion (which is usually what we are dealing with) gives us only those parts of the case they want us to know. With this caveat in mind, we move forward.
In 1966, Tom Price owned a large piece of land in Amador and El Dorado Counties in California (first hint, this case involves a common grantor). In 1968, Alan Wolf surveyed the property and pursuant to the lines surveyed by Wolf, Price sold 27 acres to Walter Petersen. In 1977, Petersen subdivided his property into two parcels, keeping the same boundary he had established with Price as their common line. Petersen filed a “parcel map.” The next year (1978), Price again subdivided his property, keeping the same common boundary with Petersen and recorded his own “parcel map.” In 1984, the Nelidovs purchased one of these parcels from Price.
In 1985, Price hired another surveyor, David Waddell, to subdivide one of his remaining parcels. The 1985 survey describes the same boundaries as previously agreed to and reflected on the parcel maps recorded by Price and Petersen. Sometime between 1985 and 2000, Price sold one of these 1985 parcels to Gary and Bertha Baldwin. In 2000, Seol Jo Lee (who prefers to be called Master Lee), chairman of the Board of the Zen Temple of America (the Temple), looked to purchase the Baldwin property. After Master Lee expressed his concern with the location of common boundary between Baldwin and their neighbor, Nelidov, the Baldwins gave the Temple an $8,000 allowance for a survey of the property. The Temple subsequently closed the sale. Shortly thereafter, Master Lee, making his own survey, determined that the common boundary between the Temple and the Nelidovs should be approximately 140 feet into the Nelidovs’ property. The assumption here is that Master Lee used the dimensions in his deed to make this “survey.”
It’s impossible to know how all of this was laid out without copies of the parcel maps, which were not provided with the court record. However, it is abundantly clear from the opinion that this “common boundary” that runs through all of these transactions is the agreed upon boundary between Price and Petersen, established in 1968, which they both intended to honor (thereby forcing all subsequent purchasers to honor) and which was reflected on the parcel maps that each recorded. In addition, all of the deeds refer to these parcel maps, even though the measurements in the deeds may or may not reflect the correct dimension of the parcels. Details from Temple II indicate that an “angle iron monument” on the ground identified by Price and the boundary line indicated by Price (on the ground), constitute the agreed common boundary between Price and Petersen, and the subsequent subdivisions of the Price and Petersen properties.4
Fantasy Boundary DisputeMaster Lee, on the strength of this survey, hired a lawyer to pursue the case. That lawyer hired Carlton Engineering to survey the property. Carl Damoude and Lim Wilson, both being engineers and land surveyors, opined that the common boundary between the Temple and the Nelidovs was correct as established. Master Lee asked Damoude to set monuments anyway, consistent with his measurements indicating that the Temple’s boundary overlapped the Nelidovs’ property by 140 feet. Damoude refused and was subsequently fired. Master Lee’s attorney also consulted with Arthur Marinaccio, an expert in land use, boundary and easement issues. Marinaccio also opined that the boundary was correct as established. He was fired along with Master Lee’s lawyer.
Master Lee then hired a new lawyer and a new surveyor, Steven Gardner. Gardner spent a year and more than 100 hours working on the project and opined that the Temple’s property actually extended 147 feet into the Nelidovs’ property. In 2002, Gardner set monuments accordingly and then attempted to file his survey.5 The survey reflects that there is a 1.79-acre “area of conflict” between the Temple property and the Nelidovs. At first, the El Dorado County Surveyor’s Office rejected the map of survey and made several suggestions to Gardner regarding the survey. Gardner discussed the suggestions with Master Lee, ignored them, and in March of 2003, filed his survey anyway.
You don’t have to be Walt Disney to imagine how all of this went down. Gardner took the Temple’s deed measurements (or instructions from Master Lee), and either ignored all other evidence or rejected the evidence pointing to the correct boundary line between these two coterminous landowners. Can you say expert measurer? In addition, he committed the unpardonable sin of land surveying: He became an advocate for his client. If you want to commit slander of title, the first step you must take is to throw out good judgment. The second step is to become an advocate for your client, which requires a lack of good judgment (see step one).
Here, of course, engineers, surveyors, and consultants unanimously agreed that the boundary on the Nelidovs’ deed was accurate and consistent with all available documentation. But Master Lee fired those who would not confirm his own measurements, and the lone professional detractor, Steven Gardner, took over a year and 100 hours to provide Master Lee with the boundary he was looking for. Thus, there was ample evidence to support the jurors’ finding that a reasonable person would foresee the damage to title caused by the filing of a survey they could have concluded was bogus.6
How else could you possibly characterize Gardner’s position? He produced--in the court’s own words--a “bogus survey” that advocated the position Master Lee wanted. “By his own admission, he [Gardner] filed it [his survey] based on an erroneous perception of a misguided duty.”7 “The Nelidovs’ experts testified emphatically that there was absolutely no good faith legal or factual basis on which a surveyor could assert an alternative location of the Nelidovs’ eastern boundary. One of the experts testified that it was only the Gardner survey itself that created any potential conflict.”8
The jury heard compelling evidence that the Temple had no basis for filing what the jury might have concluded was a bogus survey with a fantasy boundary dispute. Engineers, surveyors, lawyers, and realtors had informed Master Lee he had no claim to the Nelidov property. The jury heard testimony that when confronted with this displeasing fact, he simply hired a new lawyer and a new surveyor. A year later, the Temple apparently had the survey it sought; a few months later it filed a quiet title action, and then Gardner, pursuant to the Temple’s directions and his perception of duty, recorded the survey, noting an “area of conflict” [emphasis added].9
The "Sergeant Fridays" of the ProfessionSergeant Joe Friday from the old TV show “Dragnet” had a saying: “Just the facts, ma’am, just the facts.” This is how many surveyors perceive the survey profession. We are the “Sergeant Fridays” of the profession. We just deal with the facts (better known as measurements) as taken from a deed, let the chips fall where they may. Other evidence pointing to the true location of the boundary between coterminous landowners such as testimony evidence, agreements, occupation, fences, etc., is to be ignored. We are only in the business of setting deed lines on the ground using the facts (measurements). Where did this perception come from?
Curtis Brown gives us a clue: “In my early writings, I generally advocated that surveyors should locate land boundaries in accordance with a written deed; all conveyances based upon unwritten rights should be referred to attorneys for resolution.”10 Even Brown, however, came off this position and began to recognize that the surveyor’s role must be more than a simple deed staker. “Within recent years, there have been cases, one in particular, wherein surveyors have been held liable for failure to react to a change in ownership created by prolonged possession. ... Can a surveyor monument the lines of ownership obtained by unwritten means? To my knowledge absolutely nothing in the law prevents him from doing so. Clearly from my conversations with attorneys, this is not the unauthorized practice of law. If the surveyor chooses to claim that a possessory right has ripened into a fee title, he is certainly privileged to do so. The real question is, What should he do?”11
Since we’re dealing with “just the facts,” let’s consider a few of the facts determined at the trail in this present case. Gardner’s monuments placed on the ground, almost 150 feet inside the property boundaries of the Nelidovs, along with his attempt to record his survey in 2002, constituted slander of title. (On a technical issue, which cannot be fully explored in this short article, his actual recording of his survey in 2003, in conjunction with actual litigation, was privileged and immune from the tort of slander of title). The Nelidovs were forced to suffer 21 depositions, numerous requests for documents and interrogatories. They had to endure a court trial and an untold number of hearings. The Nelidovs also suffered untold heartache and hardship over a prolonged period of time (from the initial lawsuit in 2003 to final denial on appeal in 2007). The Nelidovs also incurred $43,475 in court costs and attorney’s fees in order to defend their land and their title. Why?
In what the Nelidovs described as “the Temple’s ‘campaign to steal 140 feet’ of their property,”12 but what the court described as a “fantasy boundary dispute,”13 where a surveyor, under a “misguided” sense of duty, advocated his client’s position with a “bogus survey,” committing slander of title along the way, “the jury found for the Nelidovs on both the slander of title and nuisance claims. The jurors awarded the Nelidovs $152,443 in damages.”14 The verdict was upheld on a rehearing in Temple II, and the California Supreme Court refused to hear the case on appeal, in 2007.
“Just the facts, ma’am, just the facts.”