Terral E. ANDERSON, Petitioner, v. Janet FAUTIN, Respondent.
No. 20140664
Supreme Court of Utah.
Filed May 31, 2016
2016 UT 22 | 379 P.3d 1186
Tex R. Olsen, Richfield, for respondent
Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Durham, and Justice Himonas joined.
Justice John A. Pearce became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.
Chief Justice Durrant, opinion of the Court:
Introduction
¶1 This case raises a single legal question: does the occupation element in our boundary by acquiescence doctrine require a claimant to prove that both owners of adjoining land occupied their respective parcels up to a visible line? Terral E. Anderson, the petitioner, owns a vacant parcel adjoining respondent Janet Fautin‘s parcel. Mr. Anderson failed to visit or inspect his property for a twenty-six year period. During that time, Ms. Fautin occupied her parcel up to a fence dividing the properties. A subsequent survey showed that the fence encroached into Mr. Anderson‘s vacant parcel.
¶2 As the record titleholder, Mr. Anderson sought to quiet title to the disputed strip created by the fence‘s encroachment. In response, Ms. Fautin claimed title under the doctrine of boundary by acquiescence. The district court granted summary judgment in favor of Ms. Fautin, concluding that
Background
¶3 The parties do not dispute the facts. Terral E. Anderson, the petitioner, and Janet Fautin, the respondent, own adjoining properties in Piute County, Utah. A fence, which is 2,000 feet long and runs from a highway to a large curve in the Sevier River, divides the properties, with Mr. Anderson‘s property directly south of Ms. Fautin‘s property. John A. Hansen, a previous owner of Ms. Fautin‘s property, installed the fence sometime before 1930. The Hansen family, including John A. Hansen and his sons, owned the property from 1930 to 1957—a period of twenty-seven years. During that time, they lived on the property in the summer and had several milk cows. They built a cabin and established a designated milking area directly north of the fence.
¶4 In 1987, Ms. Fautin purchased the property and used it for grazing livestock. In 2000, she replaced the fence when it became deteriorated. Significantly, the parties do not dispute that Ms. Fautin has occupied her property up to the fence since she first purchased the property.
¶5 Mr. Anderson purchased his property in 1968. He did nothing with it for twenty-six years, until 1994 when he retired. He explains this period of absence by noting that he was “on the ocean most of the time.” In 2005, Mr. Anderson had his property surveyed. The survey disclosed that the fence did not align with the legal boundary of the property. Two years later, he filed this action, asking the court to quiet title to the disputed property, which lies between the fence and the surveyed boundary line.
¶6 The parties filed cross-motions for summary judgment, and the district court granted Ms. Fautin‘s motion, finding that she had established a boundary by acquiescence. The district court noted that there was an
Standard of Review
¶7 Mr. Anderson does not dispute the above facts but argues that the court of appeals misread the occupation element in our doctrine of boundary by acquiescence.4 We granted certiorari on whether our boundary by acquiescence doctrine requires a claimant to prove occupancy on both sides of a visible line. This is a question of law that we review for correctness.5 We have jurisdiction pursuant to
Analysis
¶8 To establish a boundary by acquiescence, our prior caselaw required a claimant to satisfy four elements: “(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a period of at least 20 years, (iv) by adjoining landowners.”6 This doctrine minimizes litigation, “promot[es] stability in landownership,”7 and “fills an important gap in the law left unaddressed by other doctrines.”8
¶9 Mr. Anderson argues that the first element of our boundary by acquiescence doctrine—the occupation element—requires a claimant to show occupation on both sides of a visible line. Ms. Fautin, in response, claims that the occupation element requires a claimant to show occupation only on his or her side of a visible line. She also argues that the nonclaimant‘s occupancy is relevant, if at all, only to the second element of boundary by acquiescence—the mutual acquiescence element—which is an issue Mr. Anderson did not appeal.
¶10 As the parties’ arguments demonstrate, we have made inconsistent articulations and applications of both the occupation element and the mutual acquiescence element in our precedent. Our inconsistent approach to the doctrine has largely resulted from the influence of two related doctrines on boundary by acquiescence disputes: boundary by agreement and adverse possession. Consequently, to clarify what the occupation element of boundary by acquiescence requires, we must consider the ways in which these two related doctrines have shaped our boundary by acquiescence jurisprudence.
I. Our Early Cases Failed to Adequately Separate the Doctrine of Boundary by Acquiescence from the Doctrine of Boundary by Agreement
¶12 In our early caselaw, we failed to separate the doctrine of boundary by acquiescence from the doctrine of boundary by agreement. This approach to boundary by acquiescence disputes had two unfortunate consequences: (1) it led this court to impose upon a claimant a burden of showing that both adjoining landowners had occupied up to a visible line; and (2) it led this court to distort the mutual acquiescence requirement by focusing on evidence from which to infer that a nonclaimant had consented to the location of a boundary at a visible line. We have9 in our more recent caselaw abandoned these initial approaches, including the mutual occupancy requirement.
¶13 The conflation of boundary by acquiescence and boundary by agreement in our early caselaw was caused, in part, by the close conceptual relationship between the doctrines—both of which apply to boundary disputes and look for acquiescence or agreement by adjoining landowners. As noted above, boundary by acquiescence requires occupation up to a visible line and acquiescence in that line as a boundary by adjoining landowners.10 In comparison, the related doctrine of boundary by agreement requires: (1) an agreement between adjoining landowners, (2) settling a boundary that is uncertain or in dispute, (3) a showing that injury would occur if the boundary were not upheld, and (4) where the doctrine is being invoked against successors in interest, demarcation of a boundary line such that a reasonable party would be placed on notice that the given line was being treated as the boundary line between the properties.11
¶14 We first began to conflate these two doctrines in Holmes v. Judge.12 In that decision, we noted that
in all cases where the boundary is open, and visibly marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties or their grantees to depart from such line.13
In subsequent cases, we relied on this “implied agreement” language to frame our boundary by acquiescence inquiry. This reli-
¶15 As a subsidiary doctrine that applied only where courts could infer a boundary agreement, we began to rely on contract principles—as articulated in boundary by agreement—to assess boundary by acquiescence claims. This, in turn, laid the groundwork for a mutual occupancy requirement, which required a claimant to demonstrate that both adjoining landowners had occupied their properties up to a visible line. After all, a court could not imply a boundary agreement if one party to that agreement had never occupied his or her property to become aware of and consent to a visible line as the boundary.15 Accordingly, in Young v. Hyland,16 we modified the boundary by acquiescence inquiry established in Holmes to assess whether adjoining landowners “occup[ied] their respective premises up to a certain line.”17
¶16 In subsequent cases, we relied on Young‘s “respective premises” language to articulate our boundary by acquiescence doctrine.18 And though we required a claimant to demonstrate that both landowners occupied up to a visible line in these early cases, we failed to adequately address the legal significance of the nonclaimant‘s occupancy. This failure is significant in the context of this appeal because the parties ask us to assess whether the occupation element in our boundary by acquiescence doctrine requires both parties to occupy up to a visible line. These early cases do little to illuminate this question because we did not enumerate the boundary by acquiescence test into distinct elements at that time.19 As a result, we did not address whether the nonclaimant‘s occupancy was required to satisfy the occupation element or whether it held independent legal significance.
¶17 In several of these early decisions, however, we treated the nonclaimant‘s occupancy as relevant to whether the nonclaimant acquiesced to a visible line as the boundary.20 These cases suggest that the
¶18 Our failure to separate boundary by acquiescence from boundary by agreement led to an additional unfortunate consequence. Specifically, we began to require evidence from which we could infer that a nonclaimant expressly consented to treat a visible line as a boundary. This distorted the notion of acquiescence,22 which merely requires passive assent, to something more analogous to acceptance in the contract context, which typically requires an affirmative act.23 In Tanner v. Stratton,24 we emphasized the significance of the nonclaimant‘s consent. There, we applied boundary by acquiescence because the nonclaimant occupied up to a visible line but never claimed beyond it.25 We concluded that “this indicate[d] not only a mere recognition and acquiescence in the old fence line as and for a boundary line,” but also provided “facts
from which consent [could] be implied.”26 This statement emphasized the relationship between acquiescence and consent.
¶19 Cases after Tanner likewise looked for evidence of consent. In Hummel v. Young,27 we refused to apply boundary by acquiescence because the claimant “testified that he built the fence himself in 1928 without consulting the adjoining owner ... and that she did not live on her lot at that time. Thus it would do violence to the evidence to imply an agreement here.”28 And in Ringwood v. Bradford,29 we concluded that the mere presence of a fence, coupled with no acts inconsistent with acquiescence, was insufficient to raise a conclusive presumption that the parties agreed on the boundary line30 especially since the claimant provided no evidence “of any discussion as to the boundary line.”31 In short, in these early cases we would not imply a boundary agreement unless evidence indicated that a nonclaimant had agreed to treat a visible line as a boundary.
¶20 In summary, when we conflated boundary by acquiescence with boundary by agreement, we treated the former doctrine as a subsidiary remedy concerned with implying a boundary agreement where no direct evidence of an agreement was available. This led us to focus on facts that could establish an implied agreement, including facts supporting mutual occupancy and a nonclaimant‘s affirmative consent to a visible line as a
II. Our More Recent Caselaw Has Separated the Doctrine of Boundary by Agreement from the Doctrine of Boundary by Acquiescence
¶21 Our more recent approach to boundary by acquiescence cases is similar to the way we approach adverse possession disputes. Under our current approach, the occupation element focuses on whether the claimant‘s occupancy placed the nonclaimant on notice, whereas the mutual acquiescence element merely requires silence or indolence by a nonclaimant who may or may not occupy his or her property. In other words, we no longer require both parties to occupy their respective parcels up to a visible line. Abandoning the mutual occupancy requirement and treating boundary by acquiescence claims as more akin to adverse possession claims permits the former doctrine to minimize litigation and “promot[e] stability in landownership.”32 And by “fill[ing] a small but important gap” in our boundary dispute law,33 boundary by acquiescence is able to advance these purposes.
¶22 As noted, we have moved boundary by acquiescence conceptually closer to adverse possession in our recent cases. This transition from a boundary by agreement approach to an adverse possession approach is first visible in Harding v. Allen.34 In that case, the nonclaimant argued against boundary by acquiescence, claiming that he never occupied his property.35 The court disagreed and concluded that
[t]he occupancy intended as a requirement in satisfying the rule may be actual or constructive, by an owner, who may frequently or occasionally enter and physically occupy his land, but who must be shown to have occupied it thus at such reasonable intervals and during a period within which a boundary by acquiescence might be acquired, as to have knowledge of the physical facts that, through passage of time, might create rights in others to his land under the doctrine, with an opportunity to interrupt their fruition. We think such opportunity was available here, particularly where the property‘s situs is in a busy city.36
Thus, in Harding we deemphasized the need to provide evidence of a nonclaimant‘s consent to a visible line as the boundary. Constructive occupancy gave the nonclaimant notice; notice coupled with a failure to dispute the boundary showed acquiescence.37
¶23 This change altered the significance of the nonclaimant‘s occupancy. As noted above, under contract theories of boundary by acquiescence, mutual occupancy served as a logical predicate to two parties establishing a boundary agreement. After Harding, the claimant‘s occupancy up to a visible line satisfied the occupation element by providing notice to the nonclaimant.38 In contrast, the
¶24 The nonclaimant‘s occupancy, now used only to assess acquiescence, took on an ever diminishing significance, as we concluded that silence or indolence signaled acquiescence. In Lane v. Walker,40 for example, we defined “acquiescence” as “more nearly synonymous with ‘indolence,’ or ‘consent by silence.‘”41 In fact, the only exception we have established to the rule finding mutual acquiescence through silence is where nonclaimants could not access their property.42 Thus, “a do-nothing history on the part of the parties concerned ... result[s] in putting to rest titles to property.”43 This change in how we treated a nonclaimant‘s occupancy was accompanied by a change in the way we articulated our boundary by acquiescence doctrine, as subsequent cases omitted Young‘s “respective premises” language from the occupation element.44
¶25 These linguistic and analytical changes to the doctrine of boundary by acquiescence are supported by the principles underlying our doctrine of adverse possession. Under our adverse possession statute, “one who claims property by adverse possession must show that his use and possession of the property has been actual, open and notorious, and continuous for the statutory period. A claimant must also have paid all taxes levied on the property during the statutory period.”45 This ensures that “one who claims adversely must be able to show possession such that the legal titleholder is put on notice of his claim.”46 Thus, “in order to establish a boundary by adverse possession or by acquiescence the circumstances must be such that the party who would be losing his property either had or should have had knowledge that his property was being claimed by another.”47
¶26 Accordingly, the occupation element of boundary by acquiescence corresponds with the “actual, open and notorious”48 requirements of adverse possession. The claimant must occupy his or her proper-
¶27 It also shows the marked difference between our more recent approach to boundary by acquiescence and our previous approach, which we discussed above. In particular, our previous approach looked for evidence from which to imply an agreement. This made mutual occupancy a necessary prerequisite to finding a boundary agreement between adjoining landowners. It also made evidence of a nonclaimant‘s consent key, for without acceptance by the nonclaimant the court could not imply a contract. Now, we no longer attempt to imply an agreement. Consonant with adverse possession jurisprudence, our current boundary by acquiescence caselaw looks to the claimant‘s occupancy alone to determine whether the claimant provided notice to the nonclaimant. The nonclaimant need not provide express consent, but can acquiesce through inaction. This present approach, while markedly different from our prior approach, is preferable for policy reasons.
¶28 Specifically, when we treat boundary by acquiescence claims as similar to adverse possession claims, our boundary by acquiescence doctrine “fills an important gap in the law left unaddressed by other doctrines.”53 Neither boundary by agreement nor adverse possession adequately addresses every type of boundary dispute between adjoining property owners. Under boundary by agreement, a claimant needs to marshal evidence of an express parol agreement to alter a disputed boundary line. Boundary by acquiescence addresses those cases where there is no evidence of an express agreement, perhaps because the boundary line was established many years prior by deceased landowners and there are no witnesses to provide competent evidence of a parol agreement. Under adverse possession, a claimant must pay taxes on the disputed property. As we noted in Q-2 L.L.C. v. Hughes,54 Utah‘s adverse possession statute cannot adequately address boundary disputes because “[o]ne who possesses land for a long period without having legal title, but believing he is the actual owner, is unlikely to think of procuring a tax description in order to pay taxes on the land because he will think that he is already paying taxes on it.”55 Without boundary by acquiescence, a claimant who cannot establish either a boundary by agreement claim or an adverse possession claim may be without legal remedy.
¶29 Our prior caselaw, which conflated boundary by acquiescence with boundary by agreement, essentially eliminated boundary by acquiescence as a viable remedy because it required a claimant to present evidence from which a court could imply a boundary agreement, including evidence of mutual occupancy and consent to establish a visible line as the boundary. Claimants who sought a judicial remedy in the absence of such evidence were left without remedy. By treating boundary by acquiescence claims as similar to, but distinct from, adverse possession claims, we provide a legal remedy to those landowners who have relied on a boundary line for a long period of time but cannot
¶30 Under our current approach to the occupation element of boundary by acquiescence, a claimant must occupy his or her land up to a visible line in a manner that provides the nonclaimant with notice. Under the mutual acquiescence element, a nonclaimant‘s occupation up to a visible line is unnecessary, and the nonclaimant can acquiesce through silence or indolence alone. As discussed in the previous section, our early boundary by acquiescence cases did not clarify the legal significance of the nonclaimant‘s occupancy, though some early cases looked to the nonclaimant‘s occupancy as evidence of acquiescence.57 To the extent these early cases required mutual occupancy to satisfy the occupation element of boundary by acquiescence, we recognize that subsequent caselaw has abandoned this approach and here disavow any such requirement.
¶31 Therefore, to ensure clarity in future cases, our boundary by acquiescence doctrine requires a claimant to show: (1) a visible line marked by monuments, fences, buildings, or natural features treated as a boundary; (2) the claimant‘s occupation of his or her property up to the visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary; (3) mutual acquiescence in the line as a boundary by adjoining landowners; (4) for a period of at least 20 years.
¶32 In this case, the facts show that Ms. Fautin occupied her property up to the fence for over twenty years, thereby satisfying the occupation element of our boundary by acquiescence doctrine. Mr. Anderson, on the other hand, failed to visit or inspect his property for a twenty-six-year period. Had he done so, he could have timely objected to the fence. Accordingly, we affirm the decision of the court of appeals.
Conclusion
¶33 For the reasons discussed above, we affirm the court of appeals’ decision. The occupation element in our boundary by acquiescence doctrine does not require a claimant to prove occupancy on both sides of a visible line. Instead, a claimant must show occupation up to a visible line on his or her property only. Since Ms. Fautin occupied her property up to the fence for over twenty years, she satisfied the occupation element.
MATTHEW B. DURRANT
CHIEF JUSTICE