Stаnley K. FLORENCE and Barbara J. Florence, Plaintiffs and Respondents, v. HILINE EQUIPMENT COMPANY, James Saracino, Carol Saracino, Clinton C. Groll, Bonnie C. Groll, Paul L. Westbroek, and Becky L. Westbroek, Defendants and Appellants.
No. 15166
Supreme Court of Utah
June 14, 1978
581 P.2d 998
In regard to the matter of consent to the alteration, the trial judge aptly observed that the apparent emotions of the litigants were preventing the adoption of a mutually satisfactory method of controlling access through the gates, and as a consequenсe, it became necessary to determine the reasonableness of the interference.
The evidence presented bearing upon the issue of reasonableness was not so much in disputе as it was simply representative of the divergent points of view of the parties. Plaintiffs’ evidence was directed to their claimed high degree of inconvenience in having to carry a key at all times, having to furnish one to family members and agents, and having to in some way control the key so as not to be suspect of any losses defendants might suffer by reason of unauthorized persons entering upon the land. The plaintiffs also challenged the effectiveness of a locked gate against those determined to trespass for the preconceived purpose of vandalism or theft. On the other hand, dеfendants’ evidence went to the claimed beneficial effect the locks would have in minimizing future vandalism and theft by thwarting the entry of would-be trespassers.
The determination of the reasonableness of lоcked gates is necessarily governed by the facts of each case and in the instant case it appears that the trial judge carefully weighed the relative merits of the use of locks against thе resultant interference with the easement. We are of the opinion that the evidence supports his wise and judicious exercise of discretion in determining as he did that the status quo should be maintained and his consequent order that the locks be removed.
Affirmed. Costs to plaintiffs.
ELLETT, C. J., and CROCKETT, MAUGHAN and WILKINS, JJ., concur.
Arden E. Coombs, Ogden, for defendants and appellants.
Brian R. Florence, Ogden, for plaintiffs and respondents.
Appeal from a declaratory judgment in which the trial court found that the doctrine of boundary by acquiescence did not apply in determining ownership of a disputed strip of land. We affirm.
Defendant, James Saracino (hereinafter referred to as “Saracino“) and plaintiffs own adjoining land located in Uintah, Utah, a community near Ogden. Saracino owns the easterly tract and plaintiffs own the westerly tract. The dispute involves a fence which runs along the east side of plaintiffs’ property. The problem is that the fence is from 10 tо 28 feet west of true boundary, running diagonally thereto. Plaintiffs claim the strip of land between the fence and the true boundary by legal description and Saracino claims it under the doctrine of boundary by acquiescence. It is undisputed that the fence has existed for many years, evidence presented at trial showing it to have existed as early as 1936. The question we must decide is whether or not the doctrine of boundary by acquiescence applies.
In 1973 Saracino purchased his tract of land on a contract from defendant Hiline Equipment Company. Apparently the purchase was made with the intent to subdivide the property. Saracino hired a surveyor who placed survey markers along the legal description and drew a plat according to that description.
In 1976 plaintiffs purchased from оne Ray Whiting a twenty acre parcel of land just west of the Saracino property. Whiting had owned and operated his tract for some 23 years and had also used the property now owned by Saracino as pasture, paying rent therefor. Sometime prior to Saracino‘s purchase a survey of the property was made by Whiting in conjunction with his purchase of a separate one аcre plot just south of the land now disputed. Whiting discovered that the fence was not the true boundary between the property he owned and the property he rented. Shortly after
It is well established that if adjoining landowners occupy their respective premises up to a certain line which they mutually recognize and acquiesce in for a long period of time, the true boundary being unknown, they are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one.1 The doctrine of boundary by acquiescence was originally an extension of the boundary by agreement doctrine. This latter doctrine may be said to rest somewhere between adverse possession and estoрpel.2
The trial court determined that the doctrine of boundary by acquiescence does not apply to the facts of this case. In his Conclusions of Law the court rules “[t]hat the doctrine of boundаry by acquiescence arises only when the true boundary is either unknown, uncertain, or in dispute, none of which was proved in this case.” This is consistent with this Court‘s prior holdings.3 Although the fence has been in existence for a number of years, there is nothing in the record to support the claim that these parties or any of their predecessors in interest have acquiesced in treating the fence as their mutual boundаry. A fence may be maintained between adjoining proprietors for the sake of convenience without the intention of fixing boundaries. Thus agreement to or acquiescence in the establishment оf a fence, not as a line marking the boundary, but as a line for other purposes or acquiescence in the mere existence of the fence as a mere barrier, does not precludе the parties from claiming up to the true boundary line.4
A further reason for the court ruling as it did is that there is no allegation that any of these specific parties relied upon the fence as being the true boundary. Both Saracino and plaintiffs knew where the true boundary was located and treated it as such. Defendant Groll purchased from Saracino a subdivision lot bordering the disputed boundary line. He testifiеd that the property conveyed to him by deed went only to the legal description, and that he has not been deprived of any footage for which he bargained. This gave rise to the trial court‘s conclusion “[t]hat none of the parties’ interests will be interrupted or cause any inequities by holding that each party is to be the owner of their legally described tracts.” This is consistent with our analysis of the facts in Hobson v. Panguitch Lake Corporation.5 In weighing the equities in that case we stated as follows:
We cannot see the circumstances as justifying a conclusion that the parties acquiesced in regarding this fence as a boundary for the sufficiently long period of time, nor that any greater injustice will rеsult from rectifying the error and establishing the boundary in accordance with the true survey line as described in the Deeds, than would result from depriving the defendants of the property conveyed to them.
Likewise, on the facts now before us, we must conclude as did the trial court that the parties have not by their actions
Affirmed. Cost to plaintiffs.
ELLETT, C. J., and MAUGHAN and WILKINS, JJ., concur.
CROCKETT, Justice (concurring with reservation):
I concur except in the statement that “boundary by acquiescence arises only when a true boundary is either unknown, uncertain, or in dispute.” It is my opinion that the view which is better considered and better serves the purpose of that doctrine is that it is not necessary that the true boundary was “unknown, uncertain, or in dispute,” when the fence or other boundary was established. It is sufficient if there is a dispute when the trouble giving rise to the lawsuit arises. If there has been such a boundary which has been accepted and recognized by the adjoining owners as a boundary for the requisite long рeriod of time, it should be presumed that any dispute, disagreement, or uncertainty over the boundary has been resolved in some manner and should be forgotten. This is as I read the later cases decided by this Court. See e. g. Fuoco v. Williams, 15 Utah 2d 156, 389 P.2d 143; Baum v. Defa, Utah, 525 P.2d 725.
What I have said is not inconsistent with the proposition that if it is shown that the fence was erected by permission, or by agreement that it merely serve as a barrier, or for some other purpоse than as a boundary between the properties, there would be no boundary by acquiescence, because the parties would not be accepting it as a boundary.