293 P.3d 388
Utah Ct. App.2012Background
- Deans purchased Lot 9 in April 2005 and planned to replace the fence with a boundary along Lot 8 (Parks).
- Survey showed the existing wooden fence sat inside the record boundary and a chain-link fence marked part of the boundary, creating a Disputed Area with Elm trees.
- Clark (predecessor to the Parks) built a wooden fence in 1984 along a slope inside the record boundary to provide privacy, not as a boundary line.
- Parks claimed occupancy of the Disputed Area by watering, gardening, and maintaining elm trees, but the trial court found limited use and credibility of their witnesses.
- Deans sued to quiet title to the Disputed Area and to remove elm trees; Parks counterclaimed for quiet title by boundary by acquiescence.
- The trial court found Parks failed to prove mutual acquiescence in the fence as the boundary and failed to prove adequate occupancy, so title was quieted in the Deans.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Parks prove mutual acquiescence as the boundary? | Parks contend the fence was mutually recognized as the boundary by neighboring landowners. | Deans argue evidence shows the fence was built for privacy, not as a boundary, and parties did not treat it as the boundary. | No; parks fail to prove mutual acquiescence by clear and convincing evidence. |
| Did Parks prove adequate occupation of the Disputed Area? | Parks assert ongoing use of the area for maintenance and cultivation placed Deans on notice of boundary treatment. | Deans contend Parks' use was minimal and not enough to establish occupancy as a boundary. | No; Parks fail to prove occupation by clear and convincing evidence. |
Key Cases Cited
- Essential Botanical Farms, LC v. Kay, 270 P.3d 430 (Utah Supreme Court, 2011) (mutual acquiescence determined by objective actions, not subjective beliefs)
- Ault v. Holden, 44 P.3d 781 (Utah Supreme Court, 2002) (elements of boundary by acquiescence and burden of proof)
- Wilkinson Family Farm, LLC v. Babcock, 993 P.2d 229 (Utah Court of Appeal, 1999) (purpose of fence affects acquiescence when not intended as boundary)
- Veibell v. RHN Corp., 96 P.3d 935 (Utah Supreme Court, 2004) (standard of review for boundary by acquiescence findings)
- Bahr v. Imus, 250 P.3d 56 (Utah Supreme Court, 2011) (occupation prong analysis for boundary by acquiescence)
- Englert v. Zane, 848 P.2d 165 (Utah Court of Appeals, 1993) (pattern of use and notice relevant to boundary treatment)