*1 EKBERG et ux. v. BATES et ux. (239 205.)
No. 7509. Decided December *2 S., Boundaries, Boundary by See C. J. sec. 116. Jur., Boundaries, 82; fence. 8 Am. sec. 170 A. L. R. 1144. Ivins, Roe, Kirby Adamson, & Stark Edwin A. and City, Utah, all of appellants. Salt Lake for Boyle Hanni McBroom, City, & and R. A. all of Lake Salt respondents. WADE, Justice.
This dispute. case involves line F. Oscar Ekberg wife, and his who are real the owners of some property facing Harvard Avenue between and 4th 3rd East City, Utah, Streets in Salt Lake and Whose south adjoins line property the north line of certain real owned by property Von D. Hamp- Bates and his wife whose faces Avenue, brought quiet ton this suit to title to about 41/2 feet of land embraced within a fence line on the Bates prop- according erty. This feet to the record title apparently belongs Ekbergs. The claim that which Bates a fence easterly westerly runs in an and direction and located on the edge Ekberg southern of the is the line property agreed between the two which properties has been and upon acquiesced by in predecessors and their in fifty years. for more than The lower court found in Ekbergs favor of the and appeal. Bates presented:
But one Does the evidence sustain findings the court’s the true appeallants’ respondents’ property was uncertain or dispute fence which had been there for over 50 replaced had which been in 1927 by solid board both appellants’ respondents’ acquiesced immediate in interest had been predecessor’s as the line between the properties? Appellants
There is no as to the facts. introduced ownership abstract of title to show record of the ground claimed rested, whereupon respondents intro- duced their evidence on their claim that the fence between properties represented the true line acquiescence. This evidence consisted of a sidewalk ex- plat tension survey based sidewalk extension made plat though which purpose not made for the determining property lines, shows the fence lines existing then lines were determined some other plat means. This shows that at that time the fence north appellants’ north was about feet from the fence now claimed as the respondents between their and that south bound- ary was five feet present north of its location as determined plat the Atlas 1912 which is the official show- *3 ing property lines. The distance between the claimed bound- ary fence and property respondents the south line of as shown Appellants sidewalk is about 115 feet. respondents deeds each call for about 115 in a feet northerly southerly direction.
The record present discloses that where the fence which is claimed boundary as the line now stands there had been picket fence which had been built before 1894. At that belonging time the land now to appellants respondents belonged all to one appear any owner. It does not surveys by any were parties made prior of the to this suit bringing early of this action. As as about 1920 or Ekberg, Oscar F. appellants who one of the herein and whose father at that time owned the he now owns, argument had an neighbor with a in which he told neighbor they going neighbor were to make this move the fence encroaching back because it was on their Ekberg, land. Sr., upon hearing this ordered his son to keep quiet. Ekberg, In Sr., helped respondents’ pre- replace decessor in the old fence with a high stouter board fence which is now there which was placed exactly the same line on which the old fence had Respondents’ predecessor been. in interest who had built this fence testified that he had considered the fence the line between the and had built stronger, higher dogs keep fence to out the and chickens. Appellant, Ekberg, Jr., both and after he had before acquired always protested to his land had that he property. considered the fence was on their Milliner, 202, 207, In Brown v. 120 Utah expression which is the latest of this court a case involv ing dispute, many of the cases decided on that this court are reviewed and we re affirmed adjoining the doctrine that the owners of unkonwn, whose true lines are agreement by parol or uncertain establish binding lines which are on themselves and their successors in apply interest but that it did concluded facts that case. We also said therein: * * “* the absence of evidence that the owners of ad- joining property predecessors expressly or their in interest ever agreed them, as they to the location if between have occupied respective premises up open boundary visibly their to an by monuments, buildings marked long period fences or for a of time mutually recognized dividing them, it as the imply agreement law fixing will an located, if it consistently can do appealing, so with the permit facts and will not * * *” grantees nor depart from such line.
This is so because doctrine of acquies- cence public rests on sound policy avoiding trouble and *4 litigation over boundaries. In case, the instant the undisputed evidence is the that
original picket by fence was built a man who owned both appellants’ tracts of land at that time apparent it therefore is it was not erected to mark a portion line. For the during of that time both by tracts were owned person, the same there could boundary by acquiescence. be no However, the court made finding another in which it that found when the board was erected 1927 the true line was still dispute uncertain and. in and that this fence was erected acquiesced as a by fence and such grantors up hereto and their until the time this suit brought. was
Appellants contend that the evidence adduced herein is finding insufficient to sustain at the time this because survey this fence was built a could have determined true line therefore the element of un certainty necessary establishing a line by acquiescence lacking. support was In of this argument they Whitney, 267, cite Glen v. 116 Utah P. 2d 257. Certain statements in case seem to support appellants’ argument. However, those statements were mere dicta because the fence which was claimed to be bound ary by acquiescence by line was built man who awas stranger land both tracts of involved therein prevent escape was built for his convenience to Realty Co., his livestock. In Local Willie v. 110 Utah question by 175 P. 2d this was decided this court ad versely appellants’ page contention. said We therein 723 of P.: uncertainty dispute “Defendant contends there was no or about the division in this line case because deeds were clear and frontage certain each lot had the full called for the deeds relating
and therefore the rule to establishment of boundaries apply. does true It is the line called for easily However, deeds survey. could have been ascertained dispute1 though be ‘uncertain1 or ‘in even it capable being readily ascertained. The vital is whether adjacent they acquiesced when owners fixed the line or in its being fixed were uncertain or in about the location of the actual line.” In the survey instant no case had been made to determine actual brought. until after this suit was separate After conveyed original had been *5 128 grantees and their successors to third
owner those occupied separate possessed their in had originally up picket built their common fence line approximate foot- grantor. land Each tract of contained property lines age respective The called their deeds. plat were shown the sidewalk existence 1909 as by the as about five feet north of their true location shown respondents’ Ekberg, Sr.,'helped Atlas When predecessor fence in 1927 in interest build the immediate might original not be the true he knew that the fence line scrapping with he son. line because had heard his neighbors claiming fence was it and about property. knew that on his father’s He grantor therefore property up to the fence and claimed the acquiesced in that helped he when he build the new fence being involved. convey appellants until 1935. He did his acquiescence in the fence here then We have an actual period years line for which more than limitations or defenses required for actions in our statute of 104-2-6, A. property, U. C. founded see Section real origin- up possession plus occupancy actual Ek- since when al different owners appellants’ prop- berg, Sr., acquired what is now title to belonging to erty now re- from the owner of the tracts Jr., Ekberg, spondents appellants. It is true that since verbally protested property he has has been the owner of the therefore line and the true that the fence was not it, he probably actually still did he did not ownership any this suit was to assert until not take action acquired Un- after he title. commenced about opinion the court we are of the der all circumstances these it board fence was the found that did not err when by acquiescence. necessary length to establish of time The definitely acquiescence has never been usually be determined jurisdiction. Each case must in this *6 been jurisdictions there have In other own facts. its length time that of which indicate statements made prescribed of limita at the statute should be least that 1491; page in A. L. R. tions. headnote to annotation See 740; Crane, 537, Johnson Beardsley 54 N. W. v. 52 Minn. Ellis, 510; Kesler Trump, v. 161 Iowa 143 W. N. v. 366, 367, the court there P. in which case 47 Idaho said: “* * * gen- hopelessly confused and the authorities are While
erally acquiescence as the location of time to uncertain as to the satisfy rule, it is to line should continue in order acquiescence period logical say for must continue to that such but conforming period years, not thus to less than five *” * * possession. by the adverse statute of limitation cases of pointed there
In the we out above instant case as have acquiescence period more than was a of actual for (the for adverse before possession) Utah limitations period appellants acquired their and under all the circum- title length of to shown herein that time stances was sufficient precluded from appellants the line are establish so claiming it is not the line. true boundary by acquiescence though can no
Even there be person lots, fact while one owns both view finding that the evidence to sustain a was sufficient by acquiescence, boundary line that the fence was the prejudicial. the error is not respondents.
Affirmed. to Costs J.,
CROCKETT, concurs. WOLFE, (concurring). Chief Justice case, where of this Under facts and circumstances of the fence positive establishment there is evidence willing continuing thereafter, I am plus agree long here- “acquiescence period of time” seven required be as short as our doctrine tofore conforming years, provided period thus stat- ute of limitations for actions or defenses founded property. 104-2-6, to real U. A. 1943. For C. the sake of expediency, definiteness and this seems to be the most logical stopping point, upon necessary fix the length I, therefore, opinion of time. concur judgment of Mr. Justice WADE.
McDONOUGH, j., concurs in the result. J.,
HENRIOD, participating. *7 REYNOLDS v. AMERICAN FOUNDRY & MACHINE CO. January 8, (239 209.)
No. 7697. Decided