Anderson v. Fautin, 330 P.3d 108

Anderson bought property in Piute County, Utah in 1968 and largely left it vacant and unvisited along the disputed northern boundary for over 26 years.
Fautin purchased the adjacent lot to the north in 1987; a fence installed in 1980 ran ~2,000 feet and separated their properties.
A 1994 survey (commissioned by Anderson about ten years after retirement) showed the fence lay 123 feet south of Anderson’s true north boundary. Anderson sued in 2007 to quiet title and to force removal of the fence.
Fautin asserted boundary by acquiescence, claiming she and predecessors had used the land up to the fence for over 20 years and treated the fence as the boundary.
On cross-motions for summary judgment the district court held Fautin’s active use up to the fence satisfied the occupation element and Anderson’s long silence supported mutual acquiescence; it granted summary judgment for Fautin.
The court of appeals affirmed, holding an asserting owner need only show her own use up to a visible line to satisfy the occupation requirement; the neighbor’s inactivity is relevant to mutual acquiescence but not to occupation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the occupation element of boundary by acquiescence requires active use by both adjoining owners	Anderson: occupation requires both adjoining owners to actively use their parcels up to the line; his nonuse defeats the claim	Fautin: only the claiming party must show occupation up to the visible line; opponent cannot use silence as a defense	Court: occupation satisfied by the claimant’s active use up to a visible line; opposing owner’s inactivity pertains to mutual acquiescence, not occupation

Ault v. Holden, 44 P.3d 781 (Utah 2002) (sets four-element test for boundary by acquiescence and 20-year time requirement)
Carter v. Hanrath, 885 P.2d 801 (Utah Ct.App. 1994) (discussed claimant-only occupation analysis at trial court level)
Carter v. Hanrath, 925 P.2d 960 (Utah 1996) (Utah Supreme Court reversed on acquiescence grounds; did not resolve claimant-only occupation question)
Bahr v. Imus, 250 P.3d 56 (Utah 2011) (occupation satisfied when use up to visible line would put a reasonable party on notice)
RHN Corp. v. Veibell, 96 P.3d 935 (Utah 2004) (uses of land up to but not over a boundary are evidence of acquiescence)
Essential Botanical Farms, LC v. Kay, 270 P.3d 483 (Utah 2011) (mutual farming and grazing up to a fence supported acquiescence)
Goodman v. Wilkinson, 629 P.2d 447 (Utah 1981) (absence of any one element is fatal to boundary-by-acquiescence claim)