Lundahl Farms v. Nielsen

Dec 30, 2021
20190905-CA
Versions:2021 UT App 146

Michael J. Boyle, Attorney for Appellant

Joseph M. Chambers, Josh M. Chambers, and J. Brett Chambers, Attorneys for Appellees

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGE MICHELE M. CHRISTIANSEN FORSTER and SENIOR JUDGE KATE APPLEBY concurred.1

Opinion

POHLMAN, Judge:

¶1 Lundahl Farms LLC appeals a bench trial ruling in which the court concluded that Lundahl Farms and its predecessors in interest had acquiesced to a boundary, shared by Lundahl Farms’ property and property owned by Appellees, that was different from the boundary described in various deeds. The dispute centers around two parcels that were once part of a larger parcel originally owned by a common ancestor of Appellees and (through marriage) a manager of Lundahl Farms. Over the years, various family members have lived in a house and participated in farming operations on the properties. After a bench trial and post-trial proceedings, the trial court concluded that Appellees had proven a claim for boundary by acquiescence, and the court issued an order demarcating the precise boundary it recognized. But because we conclude that certain findings the court made were clearly erroneous, and that other determinations are not clearly and uncontrovertibly supported in the record, we vacate the trial court’s decision and remand for further proceedings.

BACKGROUND2

¶2 In 1873, the great-grandfather of appellee Darwin Layne Nielsen purchased a 160-acre tract of land from the U.S. Government. At some point, this tract was separated into several smaller parcels, which were all conveyed to Layne’s3 great-grandmother, Susannah Nielsen, in 1922. One of these parcels included an “ancestral home,” which the original settlers built and lived in and which several of their descendants would go on to occupy for more than a century.

¶3 In 1927, Susannah sold the largest of the parcels, containing 25.82 acres and the ancestral home, to her eldest son, Dewey Nielsen (who was Layne’s great-uncle). Although Dewey lived in the ancestral home for a time after acquiring title, he moved out in 1935. But even after Dewey began living elsewhere, he continued to use the land surrounding the ancestral home throughout the rest of his life, working with his younger brother Blaine Nielsen (who was Layne’s grandfather) and other family members to support various livestock operations.

¶4 By the late 1950s, the family had made several improvements to the area south of the ancestral home in support of ongoing farming activities, including livestock pens, fences, and irrigation infrastructure. Also, at some point before 1959,4 a fence was built to “keep[] everything out of [the] slough,” which is a low-lying area south of the ancestral home that “collects” irrigation runoff from adjacent fields.

¶5 In 1963, the single tract containing the ancestral home and the family’s farming operations was subdivided into two parcels. Dewey and his wife conveyed the smaller of the subdivided tracts, containing the ancestral home and “about an acre” of immediately adjacent land, to Blaine and his wife, Ruby (who were the primary occupants of the home at that point). This parcel was later given an official county parcel identification number of 03-060-0033; accordingly, we refer to the parcel with the ancestral home as “Parcel 33.”

¶6 The larger of the subdivided parcels, which Dewey and his wife retained ownership of, comprises “about 20 acres” and the bulk of the farmland. This parcel was later given an official county parcel identification number of 03-060-0034; accordingly, we refer to it as “Parcel 34.”5

¶7 Although the family farm had thus been formally separated into two tracts following the 1963 conveyance, in practice “nothing changed”; the family’s cattle operation continued more or less as it had been. During the 1960s, Dewey owned the equipment and most of the cattle kept on Parcels 33 and 34, which he used primarily for “breeding purposes.” At that time, Dewey’s cattle operations “provided employment for his brothers,” including Blaine. While Dewey continued “co-occupying” the livestock area to some extent until his death, by the 1980s the bulk of the cattle raised on Parcels 33 and 34 belonged to Blaine and his son, Darwin Blaine Nielsen (Layne’s father)6—although Dewey continued to own at least some of the cattle, equipment, and vehicles on the property.

¶8 Also starting sometime in the 1970s or 1980s—“before Dewey’s passing”—Parcel 34 was leased in its entirety to the proprietors of a large local farming company, and later to that company itself (collectively, Lessees). This “oral lease” arrangement has continued into the present. Lessees use Parcel 34 primarily for raising crops to feed livestock Lessees keep elsewhere. The portion of Parcel 34 that Lessees use is not the same part of the property where the family’s livestock operations have historically been located; the irrigated crop-growing area is located south of the slough (whereas the livestock area and ancestral home are north of the slough).

¶9 Blaine passed away in 1983, followed by his wife Ruby in 1987, at which time Darwin acquired title to Parcel 33. The ancestral home remained mostly vacant from the time of Ruby’s death until Layne’s daughter, Tawnee Wood, began living there in 1994. In 2006, Parcel 33 was conveyed in undivided one-half interests to Darwin and his wife in their capacities as trustees of the Darwin B. Nielsen Living Trust and the Zoe M. Nielsen Living Trust (the Appellee Trusts). In 2017, Parcel 33 was conveyed to Layne in his personal capacity.

¶10 Dewey also passed away in 1987, at which time Parcel 34 transferred to his daughter Mary Susannah Lundahl (Mary Sue), who is also Layne’s cousin. In 1996, Mary Sue conveyed Parcel 34 to her husband, Carl Lundahl, as trustee of the Mary S. Lundahl Family Trust. In 2009, Carl conveyed Parcel 34 to Lundahl Farms—an entity of which he is a manager.

¶11 In the summer of 2016, shortly after Carl became aware of the deeded boundary between Parcels 33 and 34, Lundahl Farms sent the trustees of the Appellee Trusts a “notice to remove personal property,” informing them that they had until July 31, 2016 to remove all “outbuildings and or permanent fixtures” located on Parcel 34. (Cleaned up.) After receiving the notice, Layne asked Carl if Layne’s daughter Tawnee could continue raising some calves on the disputed area of Parcel 34 for a short while longer. Carl agreed to a short extension, but ultimately the property was not removed and Lundahl Farms served two additional notices to vacate in March and April 2017. When the property was not vacated, Lundahl Farms filed a complaint for eviction and writ of restitution, including claims for forced eviction, unlawful detainer, and waste. In response, Appellees asserted counterclaims for boundary by acquiescence, adverse possession, prescriptive easement, and title acquisition by virtue of the occupying claimant’s statute.

¶12 A bench trial was held in November 2018, at which Carl, Tawnee, and Scott Nielsen (Layne’s brother) testified for Lundahl Farms, and Layne testified for Appellees. Several exhibits were admitted into evidence, including deeds and other conveyance documents, as well as historical aerial photographs of the properties.

¶13 Before the trial court, “neither [p]arty dispute[d] that [Appellees] own Parcel 33” as that parcel was described in the various conveyance instruments. The court thus framed the dispute as hinging on the boundary between Parcel 33 and Parcel 34, and specifically whether the parties and their predecessors in interest had acquiesced to a boundary different from how it is described in the conveyance instruments.

¶14 Scott testified that his father and grandfather (Darwin and Blaine) had used the disputed area to raise cattle “for as long as [he could] remember,” going back until at least the “late [19]60s.” He stated that he was unaware of any permission Blaine had received to keep animals on the property, but that he thought Darwin and Carl “had an understanding.” He also testified about “various structures” on the property that were used in his family’s farming operations, including corrals and a feed yard. He explained that they had “[b]een there as long as [he could] remember.” Scott himself kept horses in a corral on the disputed area for many years, and stated that he had never asked permission to keep them there because he had always “assumed it was [his grandfather’s] land.” Scott also confirmed that a fence ran along the southern part of the area where the family kept cattle, which “had been . . . there for a long time” and basically served to “keep everything out of the [slough].”

¶15 As to Dewey’s use of the property, Scott suggested that as long as he could remember, Dewey’s use was minimal, but he did remember Dewey keeping “an old combine,”7 “all of his tractors,” and other equipment in a shed in the same general area as the cattle operations.

¶16 Carl testified that, sometime “between 1960 and 1970,” a few years after he had married Mary Sue, Dewey drove him around to Dewey’s various properties so that Carl could “be aware of the properties [the family] owned.” At that time, Carl witnessed the farming operations going on in the disputed area south of the ancestral home; he described facilities “adjacent” to the ancestral home as being used primarily for breeding—there being “designated” pens for a bull, “heifers,” and “summer calves.” Carl also characterized the entire operation (as of the 1963 parcel split) as being led and owned by Dewey, noting how Dewey had been “the main proprietor of the property and the animals,” and that although Blaine, Darwin, and other family members were “allowed to have some [of the animals] themselves and to use the bull that Dewey owned,” they all ultimately “worked for [Dewey].”

¶17 Carl also testified about a conversation he had with Darwin sometime in the 1980s, before Dewey died. In this conversation, Carl told Darwin that it was Dewey’s “wish that [Darwin] could continue to use the[] areas . . . as had been done in the past” “because Darwin had been helpful in helping Dewey feed the cattle when [Dewey] wasn’t capable.”

¶18 With respect to the leasing arrangement with Lessees, Carl indicated that it had always been an “oral lease” and that the fees they paid in rent were based on having access to “everything on Parcel 34”—“all 20 acres.” As for property taxes, Carl testified that he had “continuously paid the taxes on Parcel 34” for as long as it had belonged to Mary Sue’s trust and Lundahl Farms.

¶19 Carl then testified about the two unpaved roads used to access Parcel 34, which are located immediately to the east and to the west of the Parcel 33 boundaries. According to Carl, at some point after 1959 and prior to 1974, Blaine sold Lessees a right-of-way on the western edge of Parcel 33 “that allowed them quicker access to come into the silage pit”8 they were operating on Parcel 34, and that Darwin had later partitioned a sliver of land off Parcel 33 containing the western road, creating a new parcel, which he then sold to Lessees. Accordingly, once they acquired rights to use the western road, it became possible for Lessees to access Parcel 34 via either the eastern or western roads, which connect on Parcel 34 just southwest of the ancestral home. See Appendix A.

¶20 Testimony was solicited from Carl regarding what could be seen in four aerial photos proffered by Lundahl Farms, which dated from 1959 to 2011. First, he described what could be seen in 1959 (which was a few years before the parcels were split), including a “storage garage at the end of th[e] driveway,” “the pens that they raised the cattle in,” and “where the fences were.” He also identified the dirt roadway “just east of the ancestral home” and testified that it had been used to “access . . . the rest of the farm” from the main road.

¶21 Carl next described what was depicted in an aerial photograph from 1974—just over a decade after Parcels 33 and 34 were split—pointing out that “the same roadway” to the east of the ancestral home was still there. But the 1974 photo also showed the new dirt road to the west of Parcel 33 used by Lessees. The western road appeared to “connect[] up with the road from the east,” and from this point another dirt roadway extended to the south of the property, which “allowed a freer flow of the equipment” and access for Lessees to the silage pit. Carl then testified how both roadways could still be seen in the 1993 aerial photo, as well as in the 2011 photo, but he admitted it was “a little less clear [from the 2011 photo] how far [the dirt] road [went].”

¶22 Carl also testified about the old fence at the slough. When asked how long the fence had been there, he stated, “Oh my gosh, forever,” and noted that it had been there “[a]t least since 1959” because it could be seen in the aerial photo from that year.

¶23 On cross-examination, Carl described how Tawnee had informed him in 2016 that the platted boundary for Parcel 33 went through the back of the ancestral home. But Carl added that in actuality, the line went through “a kitchen area and a car cover . . . to the south,” which were improvements that had been added on to the original structure. Although Carl admitted that before 2016 he had not known exactly where the boundary between Parcels 33 and 34 was located, he had nevertheless “assumed the boundary of the property was somewhere behind the house.” When asked if he had thought the boundary “went to the fence line,” he answered, “No.” When asked if he had thought the boundary “went to the roadway,” he stated that he “wasn’t sure.” Later, the trial court asked Carl to elaborate what he meant by “behind the house,” and Carl indicated that he had thought it was somewhere “[t]o the south of the carport.”

¶24 Counsel for Appellees also asked Carl how often he personally had accessed Parcel 34. While Carl conceded that he “really didn’t have any need to go to the property” regularly, he estimated that he went to Parcel 34 “once a year at least” to walk the property with Lessees. During these visits, Carl said he would typically drive into the property via the eastern road entryway, although he did use the western road on some occasions. Carl also acknowledged that in the years he had visited the property since 1987, he had seen the “fence line and the improvements” in the disputed area, as well as horses and cattle, which he knew did not belong to Dewey (because he was deceased) or Lessees, and which he “assumed” belonged to Darwin or his descendants. Carl was then asked, “[A]fter you drove in and would look at this with [Lessees], did you do anything to indicate to Blaine or Darwin that they needed to remove the cattle or pay you any rent?” He responded, “Not at that time.”

¶25 Carl conceded that he had been “aware of the occupancy [on Parcel 34] in 1987,” after Dewey’s death, and had been concerned enough that he consulted an attorney about the matter around that time. But Carl ultimately “didn’t worry about it” because he received advice from that attorney that as long he was paying taxes on Parcel 34, he “[should not] worry about it.”

¶26 At the end of cross-examination, counsel for Appellees asked Carl, “Is there any question in your mind that the fences . . . around this property, the corrals, the buildings, they’re all visible and observable to any person [who] walks on that property?” Carl responded, “Yes.” Carl was then asked, “Did you take any action that would be perceived from an objective standpoint to assert or declare that was still your property and not Darwin’s or Blaine’s?” Carl responded simply, “No.”

¶27 Tawnee testified about her time living in the ancestral home on Parcel 33. In particular, she described a conversation she had with Darwin (who was her grandfather) in 1994 when she was “clear[ing] up the property to move in.” As part of the cleanup efforts, she was moving a dead tree to an open area on what she thought was part of Darwin’s property. When Darwin saw she had done this, he informed her that the area she thought was part of his property was not. Tawnee explained, “[Darwin] wanted to verify that I wasn’t going to put any amount of trash in any of those areas because it wasn’t his to be able to be putting trash on. And he was very clear with that.”

¶28 Layne testified on behalf of Appellees. Although he and his father and the rest of the family did not live on-site, Layne testified that, beginning with his earliest memories, which would have been in approximately 1965, he went to the “property behind the . . . ancestral home” “every day to do chores” to help with his father’s and grandfather’s livestock activities. These chores consisted of “all the workings of the farm,” including moving and feeding the cattle and irrigation activities. Layne also testified that he had personally kept “horses on every bit of [the disputed area] since [he] was 14,” as well as some “[s]how steers for a time.”

¶29 Although Layne remembered there being a bull on the property around the time he was ten years old that he acknowledged could have belonged to Dewey, he also indicated that, from the time he was fourteen years old until Dewey’s death, he had never observed any of Dewey’s cattle in the area used by Darwin and Blaine.

¶30 Layne affirmed that several structures marked the area of the disputed parcel that he and his family used, including “a foundation of the old garage,” “a tack room,” “an old granary,” and “a little barn out to the southwest.” As to the visible fence line, Layne drew lines on an image indicating the area his family used, and specified that the lines he was drawing “primarily” marked “the fence lines that have historically been there.” These included not only the oldest fence bordering the slough, but also several more recent additions.

¶31 As a rebuttal witness, Carl reiterated that he had been paying the taxes on “the entire area of Parcel 34” since 1963. He also contradicted some of Layne’s assertions about certain fencing, including disputing that there were fences in some of the locations where Layne had stated there were and how old other fences were.

¶32 After the close of trial, the court issued a written ruling, in which it concluded that Appellees had “demonstrated boundary by acquiescence.”9 In addressing the required elements for Appellees’ boundary by acquiescence claim,10 the court first found that, based on testimony at trial and the aerial photos admitted into evidence, “a fence [had been] present since 1959,” and the court concluded therefrom that Appellees had “established . . . a visible line with the existing fence lines and [Lundahl Farms’] right of ways on the existing roads.”

¶33 Next, regarding the occupation element, the court recognized that “there was some dispute over whether [Appellees had] occupied land west and east of the existing roads,” but found that, based on unspecified testimony, the “portions west of [the] most western road were utilized and rented out to tenants, not [the owners of Parcel 33].” The court made no explicit resolution on the dispute over the eastern road. The court then concluded that “evidence demonstrate[d] that [Appellees] and their predecessors have occupied and used horses on the portions of Parcel 34 for over sixty years,” and that both parties were “clearly on notice of such occupation for quite some time.”

¶34 In addition, as part of its analysis on the occupation element, the court noted that it was “clear the [p]arties were not even aware of where the actual boundaries between Parcel 33 and 34 were until 2016.” But it also found that Lundahl Farms had “recognized Parcel 34’s boundary with . . . Parcel 33 as the visible fence line,” citing the following in support: “[Bench Trial] at 4:30:37 PM–4:32:40 PM ([Carl] testifying that Parcel 34 as he recognized it was up to the visible fence line that has historically been there).”

¶35 The court concluded that the twenty-year element had been met because Appellees and their predecessors had “occupied the portions of Parcel 34 up to that fence line for over sixty years.” Regarding the mutual acquiescence element, the court made no further references to the record, instead stating only that “neither [p]arty contests that Parcel 33 and Parcel 34 are adjacent to one another,” and the court concluded therefrom that “the [p]arties [had] mutually acquiesced to the boundary between Parcel 34 and Parcel 33 as the visible fence line.”11

¶36 The next month, Lundahl Farms filed a motion seeking amended findings and judgment, pursuant to rule 52(b) of the Utah Rules of Civil Procedure, in which it challenged several aspects of the court’s order. Among other things, Lundahl Farms argued that several of the court’s factual findings were erroneous and unsupported by the evidence. Regarding the court’s identification of “existing roads” as part of the boundary, Lundahl Farms asserted that “[t]he [c]ourt [did not] identify by exhibit or testimony what it [found] to be ‘existing roads’” and “[t]here [we]re no subsidiary facts to establish how the [c]ourt determined where the ‘existing roads’ were located.” Lundahl Farms also argued that the court needed to amend its findings to recognize that “historical access to the southern and western portion[s] of Parcel 34 was by the historic dirt road” to the east of the ancestral home, and that “the historic dirt road was entirely within the property of Parcel 34 and used by [Lundahl Farms] and [its] predecessors in interest for decades.” Finally, Lundahl Farms challenged the veracity of the court’s assertion that Carl had testified “that Parcel 34 as he recognized it was up to the visible fence line that has historically been there,” contending that Carl did not so testify; instead, Lundahl Farms clarified that Carl had acknowledged that “an old wooden fence” had “been there for a very long time,” but he never gave any indication that he had recognized that fence as the boundary.

¶37 After hearing argument on the motion and Appellees’ opposition, the trial court issued an amended decision and order that “clarifie[d] and supersede[d]” its prior order. But the amended decision differed substantively from the original order in only two respects: first, the court removed all references to the eastern road that had been in the original order, leaving its discussion on the occupation and use of the western road; and second, the amended order more precisely described the property to be included in the expanded Parcel 33, which the court held Appellees had “acquired” through boundary by acquiescence.12

¶38 Following the issuance of the amended decision and order, Lundahl Farms appealed.

ISSUES AND STANDARDS OF REVIEW

¶39 Lundahl Farms appeals the trial court’s determination that Appellees proved their claim for boundary by acquiescence by clear and convincing evidence. Lundahl Farms attacks the factual basis for several of the court’s findings, it challenges the legal adequacy of the court’s findings to support its conclusions on certain boundary by acquiescence elements, and it contests the legal relevance of certain evidence relied on by the trial court. These various challenges are, at times, intertwined, but we do our best to understand and address each one.

¶40 With regard to the factual findings that Lundahl Farms challenges as unsupported by the evidence, we will not reverse a finding made by the trial court unless it is clearly erroneous. RHN Corp. v. Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935. “To qualify as clearly erroneous a trial court’s findings must be either against the clear weight of the evidence or must induce a definite and firm conviction that a mistake has been made.” Jacob v. Bate, 2015 UT App 206, ¶ 13, 358 P.3d 346 (cleaned up). “But a finding is not clearly erroneous if, viewing the evidence in the light most favorable to the trial court’s findings, the evidence is legally sufficient to support the finding.” Id.

¶41 To the extent Lundahl Farms challenges the adequacy of the trial court’s factual findings, whether those findings are adequate to support the court’s legal conclusions is reviewed “for correctness as a question of law.” See Shuman v. Shuman, 2017 UT App 192, ¶ 2, 406 P.3d 258 (cleaned up). Similarly, to the extent Lundahl Farms challenges the trial court’s legal conclusions on whether Appellees proved their boundary by acquiescence claim by clear and convincing evidence, we review those conclusions for correctness, “according the trial court no particular deference.” Veibell, 2004 UT 60, ¶ 22 (cleaned up); accord Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 20, 493 P.3d 1131.

ANALYSIS

¶42 Utah’s “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.” Anderson v. Fautin, 2016 UT 22, ¶ 31, 379 P.3d 1186; accord Linebaugh v. Gibson, 2020 UT App 108, ¶ 25, 471 P.3d 835. “To prevail . . . , a claimant must prove each element by clear and convincing evidence.” Linebaugh, 2020 UT App 108, ¶ 25 (cleaned up).

¶43 Under the occupation element of boundary by acquiescence, a claimant must “occupy his or her property up to a visible line in such a manner as to place the nonclaimant on notice that he or she claims the property so occupied.” Anderson, 2016 UT 22, ¶ 26. Mutual acquiescence, in turn, occurs when the claimant and the neighboring landowner “recognize and treat” the visible line as the boundary dividing their respective properties. RHN Corp. v. Veibell, 2004 UT 60, ¶ 24, 96 P.3d 935 (cleaned up). “Acquiescence is a highly fact-dependent question,” requiring the court to make “an objective determination based solely on the parties’ actions in relation to each other and to the line serving as the boundary.” Linebaugh, 2020 UT App 108, ¶ 26 (cleaned up). It “may be tacit and inferred from evidence” of the landowner’s actions which tend to show that the landowner “impliedly consents, or acquiesces, in that line as the demarcation between the properties.” Id. (cleaned up). A landowner’s “subjective belief regarding the location of a boundary may be evidence of mutual acquiescence, but only to the extent that such understanding is based on the objective actions of the landowners.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 28, 270 P.3d 430. Finally, the claimant must show that these elements were satisfied “for a period of at least 20 years.” Anderson, 2016 UT 22, ¶ 31. Once the first three elements have been in place for the same twenty-year period, boundary by acquiescence exists as a matter of law, and the landowner’s subsequent actions do not extinguish the new boundary. See Veibell, 2004 UT 60, ¶ 31.

¶44 Lundahl Farms challenges the trial court’s conclusion that Appellees proved the occupation, mutual acquiescence, and time period elements of boundary by acquiescence by clear and convincing evidence.13 We first address Lundahl Farms’ contention that the court clearly erred in finding that Carl had believed the old fence at the slough represented the boundary between Parcel 33 and Parcel 34. We then consider its challenge to the adequacy of the trial court’s findings in support of the conclusion that Appellees had established boundary by acquiescence. And finally, we consider Lundahl Farms’ challenge to the legal relevance of certain evidence considered by the trial court in reaching its conclusion.

A. The Findings Challenged as Clearly Erroneous

¶45 To begin, Lundahl Farms challenges as clearly erroneous the trial court’s factual finding that Lundahl Farms “recognized Parcel 34’s boundary with . . . Parcel 33 as the visible fence line.” When evaluating whether a finding is clearly erroneous, we “view[] the evidence in the light most favorable to the trial court’s findings,” and consider whether the finding is “against the clear weight of the evidence” or leaves us with “a definite and firm conviction that a mistake [was] made.” Jacob v. Bate, 2015 UT App 206, ¶ 13, 358 P.3d 346 (cleaned up). Once we determine that a finding is clearly erroneous, it is usually “inappropriate” for this court to “disregard the [trial] court’s findings of fact and to assume the task of weighing evidence and making [our] own findings of fact”; rather, under such circumstances we “normally remand the matter to the [trial] court to make additional or new findings because of its unique position to weigh the evidence” in the first instance. Gardner v. Gardner, 2012 UT App 374, ¶ 43, 294 P.3d 600 (cleaned up).

¶46 In support of its finding that Lundahl Farms had recognized the fence as the boundary, the court cited a point at trial when Carl allegedly “testif[ied] that Parcel 34 as he recognized it was up to the visible fence line that has historically been there.”14 But Lundahl Farms contends that “no[]where within the entirety of the trial transcript” did Carl make any statements that could be construed as him stating that the boundary of “Parcel 34 as he recognized it was up to the visible fence line that has historically been there.”

¶47 On our review of the record, Lundahl Farms is correct. Carl did state that he had “assumed the boundary of the property was somewhere behind the house,” but “didn’t know exactly where.” And Carl admitted that there had been “fences” “along the bottom of the slough” “since the [19]50s.” But when

asked if he had thought the boundary “went to the fence line,” he unambiguously answered, “No.” Thus, not only is there no record support for the court‘s finding that Carl had “recognized” the boundary as being “up to the visible fence line that has historically been there,” but Carl stated the exact opposite.

¶48 Appellees nonetheless counter that this “constitutes harmless error.” “[H]armless error is an error that is sufficiently inconsequential that there is no reasonable likelihood that it affected the outcome of the proceedings.” State v. Evans, 2001 UT 22, ¶ 20, 20 P.3d 888; accord In re Estate of Anderson, 2016 UT App 179, ¶ 13, 381 P.3d 1179. We do not share Appellees’ view. First, the trial court‘s findings on the issue of mutual acquiescence are sparse. The court made several findings relating to Appellees’ occupation of the disputed area and Lundahl Farms’ awareness of that occupation, but the court‘s findings lack support for a determination that the parties “recogniz[ed] and treat[ed]” the old fence by the slough as the boundary dividing their respective properties. See Veibell, 2004 UT 60, ¶ 24. Thus, it appears that this finding carried weight in the court‘s analysis, and we cannot say that there is no reasonable likelihood that it affected the court‘s decision.

¶49 Further, at oral argument, Appellees asserted that any evidence of the parties’ “subjective acknowledgment” regarding the claimed boundary is “really not relevant” because it is ultimately “the totality of the [parties‘] objective conduct” that dictates whether there has been mutual acquiescence. But this view constitutes a slight misreading of precedent. Although “a party‘s subjective intent has no bearing on the existence of mutual acquiescence,” a party‘s “subjective belief may have some relevance to mutual acquiescence,” as long “as the belief is supported or created by the objective actions of the parties.” Essential Botanical Farms, 2011 UT 71, ¶¶ 27-28 (emphasis added); accord Linebaugh, 2020 UT App 108, ¶ 27. This is because “a subjective belief is merely an individual‘s personal understanding of a certain state of affairs and not a degree of intent.” Essential Botanical Farms, 2011 UT 71, ¶ 28. Thus, while “neither a subjective belief nor any level of intent” is required to show mutual acquiescence, “a subjective belief regarding the location of a boundary” may still be relevant in considering the parties’ actions. See id. Therefore, on remand, the court may consider Carl‘s subjective belief regarding the boundary‘s location in evaluating mutual acquiescence (so long as Carl‘s subjective belief is supported by the parties’ objective actions), but the court may not rely on its erroneous finding that Lundahl Farms recognized the old fence by the slough as the boundary line.

¶50 In sum, Lundahl Farms has shown clear error. Even when “viewing the evidence in the light most favorable to the trial court‘s findings,” it is evident to us “that a mistake [was] made” regarding the finding that Lundahl Farms had “recognized” the boundary as the slough fence, based on cited testimony that is found nowhere in the record. See Jacob, 2015 UT App 206, ¶ 13 (cleaned up). In such situations, our only choice is to remand the matter for “additional or new findings” that are not “in conflict with the clear weight of the evidence.” See Gardner, 2012 UT App 374, ¶¶ 16, 43 (cleaned up).

B. The Adequacy of the Factual Findings

¶51 Lundahl Farms next argues that several aspects of the trial court‘s findings render them inadequate to support its conclusion that there was boundary by acquiescence. “Utah appellate courts consistently stress the importance of adequate findings of fact” because “if we are to determine whether the evidence adduced at trial supports the trial court‘s findings, the findings must embody sufficient detail and include enough subsidiary facts to clearly show the evidence upon which they are grounded.” Woodward v. Fazzio, 823 P.2d 474, 477 (Utah Ct. App. 1991) (cleaned up); see also Utah R. Civ. P. 52(a)(1) (“In all actions tried upon the facts without a jury . . . , the court must find the facts specially and state separately its conclusions of law.“). In other words, the court‘s findings “must show that the court‘s judgment or decree follows logically from, and is supported by, the evidence. The findings should be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 28, 70 P.3d 35 (cleaned up). “Otherwise, this court would be placed in the awkward position of having to speculate about what the [trial] court actually determined the facts to be, without benefit of the guidance that proper factual findings are meant to provide.” Woodward, 823 P.2d at 478 n.7.

¶52 Lundahl Farms makes two primary complaints about the legal adequacy of the trial court‘s findings relevant to the occupation and mutual acquiescence elements. It first complains that the court failed to make findings regarding Lundahl Farms’ contention that Appellees had occupied the disputed area only with its permission, not because the parties acquiesced to a new boundary. Similarly, Lundahl Farms contends that the court failed to make findings analyzing the co-occupation of the disputed area by Lundahl Farms and its predecessors. We address each argument in turn.

1. Evidence of Permission to Occupy

¶53 Lundahl Farms concedes that the trial court was correct to find that Appellees and their predecessors in interest had occupied “the area of the cattle operation between the old fence line and the old dirt road for decades,” but it contends that “at no time within those decades of use” was the occupation without permission. Lundahl Farms argues that any such permission is relevant to whether the parties recognized or treated the old fence line or the old dirt roads as boundaries, and thus must be considered in evaluating whether Lundahl Farms had been on notice that Appellees were purporting to occupy the disputed area as their own and whether Lundahl Farms had acquiesced in those boundaries. Lundahl Farms further argues that, without findings on the question of permission, the trial court could not conclude that the elements of boundary by acquiescence had been met. We agree with Lundahl Farms on each point.

¶54 First, we agree that the evidence Lundahl Farms presented on the issue of permission was relevant to the court‘s analysis of the occupation and acquiescence elements. Although not expressly identified as part of the standard on these elements, whether the owner gave permission allowing the claimant to use the occupied area is relevant to whether the owner “recognize[d] and treat[ed]” the purported visible line as a boundary. See Veibell, 2004 UT 60, ¶ 24 (cleaned up). Indeed, Utah precedent suggests that permission from the owner allowing the claimant‘s use defeats a claim that the parties mutually acquiesced to the asserted boundary. See, e.g., Davis v. Riley, 437 P.2d 453, 454-55 (Utah 1968) (reversing a ruling on summary judgment and remanding for trial because certain evidence “appear[ed] to raise an issue of fact as to whether the [claimants‘] use . . . was merely permissive; and that if this were proved, that would preclude the establishment of a boundary by acquiescence“); Fuoco v. Williams, 421 P.2d 944, 947 (Utah 1966) (suggesting that the owner giving adjoining landowners permission to use a ditch on his land was one fact evincing lack of mutual acquiescence to that ditch defining the boundary between their properties); McElprang v. Jones, 2007 UT App 118U, para. 6 (affirming the trial court‘s conclusion that boundary by acquiescence had not been met based in part on the trial court‘s finding that the claimant‘s use of the disputed area had been “permissive“). And this makes sense, because giving a neighboring landowner permission to use an area seems to be “inconsistent with recognition of [the asserted] line as the boundary” between the properties. See Linebaugh, 2020 UT App 108, ¶ 27 (cleaned up).

¶55 Second, we agree with Lundahl Farms that it presented evidence that Appellees’ use of the disputed area was with permission, and to the extent the trial court found otherwise, it was mistaken. Citing Carl‘s testimony, the court found that “[e]vidence was presented that at no given time, prior to . . . June 2016, had [Lundahl Farms] required any compensation, rent, permission for land use, or permission to establish a fence or use the corral on Parcel 34.” This finding is partially supported by Carl‘s testimony that, before 2016, he had never charged rent for use of the property, never told Blaine or Darwin to tear down any fence or corral or to remove their livestock, never wrote them a letter “saying . . . you guys are using the property with my permission,” and never asserted or declared that the property was his and not Darwin‘s or Blaine‘s. But at no point in Carl‘s testimony did he state that Appellees’ use of the disputed area was not permissive. Rather, Carl testified that he had a conversation with Darwin sometime in the 1980s, in which Carl conveyed Dewey‘s wish that Darwin be allowed to continue using the disputed area “as had been done in the past.”

¶56 Moreover, Carl was not the only one whose testimony suggested that Appellees’ and their predecessors’ use of Parcel 34 had been with permission. Tawnee testified that in 1994, Darwin told her that she could not move a dead tree to a spot in the disputed area because the property was not his, and that he, Layne, and Tawnee were allowed to use the area only “for horses and cattle,” and “not for junk.” This evidence suggests that Darwin did not view the old fence line as his property‘s boundary. And when Scott was asked whether he was aware of any permission Blaine or Darwin had received to keep animals on the property, Scott testified that he thought Darwin and Carl “had an understanding.” Thus, given that Darwin lived until 2011—well within the twenty-year time period if counting back from the date that Lundahl Farms issued the notice to vacate—there is evidence in the record that Appellees’ occupation of the disputed area was permissive.

¶57 Third, we agree with Lundahl Farms that other than the limited finding noted above, see supra ¶ 55, findings on the evidence presented on the issue of permission are absent from the trial court‘s decision. To prevail against Lundahl Farms on the issue of boundary by acquiescence, Appellees were “required to present evidence that clearly and convincingly established every essential element of [the claim].” See Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 27, 70 P.3d 35 (emphasis added). The trial court, in turn, was obligated to make findings of fact regarding the essential elements of boundary by acquiescence “that could be reviewed on appeal to determine both the adequacy of the evidence and the correctness of the court‘s ultimate conclusion.” See id.

¶58 Here, the trial court‘s factual findings on the issue of permission are inadequate and prevent us from effectively reviewing its decision. Perhaps the court did not find Carl, Scott, and Tawnee to be credible. Perhaps it concluded that despite these witnesses’ testimonies about permission, there was still clear and convincing evidence that the parties, for a twenty-year period, treated the old fence as a boundary between Parcel 33 and Parcel 34. But the court‘s decision does not reveal its thinking on these facts or this issue. And “without insight into the [trial] court‘s reasoning, we are unable to ascertain whether the [court‘s ruling] follows logically from, and is supported by, the evidence.” See Maak v. IHC Health Services, Inc., 2016 UT App 73, ¶ 46, 372 P.3d 64 (cleaned up).

¶59 Thus, as is the case with findings that are clearly erroneous, when the trial court‘s findings are inadequate to support its ultimate legal conclusion, we must vacate the trial court‘s ruling and remand the matter so that the court may “supplement, modify, or complete the findings to make them conform to the issues presented and the facts as found from the evidence” and “enter judgment in accordance with the findings as revised.” See Harrison, 2003 UT 14, ¶ 28 (cleaned up); see also Maak, 2016 UT App 73, ¶ 46 (vacating the court‘s ruling and remanding for the trial court “to determine the issue anew and to provide the written analysis necessary to ensure that its legal conclusion flows logically from, and is supported by, the record evidence“). Specifically, the court should address with adequate findings whether there was permission to use the disputed area and, if so, how that permission affects the court‘s mutual acquiescence determination.

2. Evidence of Co-Occupation of the Disputed Area

¶60 Lundahl Farms also complains that the trial court made no findings about the use of the disputed area by Lundahl Farms and its predecessors (including Dewey). There was evidence introduced at trial that Dewey had occupied some of the disputed area from the time of the parcel split in 1963 until his death in 1987. Although there was some dispute between the various witnesses about the extent to which Dewey was involved day-to-day in the livestock operations (with Carl characterizing Dewey as being in charge, whereas Scott and Layne minimized his role), all witnesses were consistent in that Dewey used the disputed area in Parcel 34 for that entire time period to at least some degree, even if toward the end of his life his use consisted only of storing farm equipment and other personal property at the site.

¶61 Further, evidence was introduced that beginning sometime in the 1970s or 1980s, Parcel 34 was leased in its entirety to Lessees, who have continuously raised crops on the property (at least until the time of trial). Carl testified that he sporadically accessed the property to conduct walkthroughs with Lessees. Although this use is occasional—Carl approximated that it happens “once a year at least“—the evidence suggested that the use was consistent. And on these occasions, Carl most often accessed Parcel 34 via the eastern road—which constitutes a notable portion of the total area within the boundary that the trial court found Lundahl Farms and its predecessors had acquiesced to. Such use appears to be “inconsistent with recognition of [the claimed] line as the boundary,” see Linebaugh, 2020 UT App 108, ¶ 27 (cleaned up), because Carl apparently felt free to use the eastern road to access Parcel 34 whenever he considered it necessary.

¶62 Appellees do not dispute the veracity of Carl‘s annual use, but instead argue that such infrequent use “is not, objectively, enough to manifest to [the owners of Parcel 33] that [the owners of Parcel 34] did not recognize the fence line as the boundary between the properties.” In support, Appellees cite Ault v. Holden, 2002 UT 33, 44 P.3d 781, but that case is ultimately not helpful to their position. In Ault, our supreme court clarified that “record property owners are not required to take legal action or otherwise ‘oust’ someone adversely occupying their property to maintain their legal rights in their property“; rather, “[t]hey must only take some action manifesting that they do not acquiesce or recognize the particular line . . . as a boundary between the properties.” Id. ¶ 20 (emphasis added). Even “mere conversations between the parties” can “refute any allegation that the parties have mutually acquiesced in the line as the property demarcation” if such conversations suggest that one or both parties do not view the purported visible line as a boundary. See id. ¶ 21.

¶63 Indeed, this court has held that even uses that are seemingly “minimal” compared to the claimants’ activities can be “inconsistent with acquiescence.” See Argyle v. Jones, 2005 UT App 346, ¶ 15, 118 P.3d 301. In Argyle, the nonclaimants’ use we characterized as minimal involved “occasional maintenance” of a fence and “repairs performed on an artesian well located on the disputed property.” Id. ¶¶ 4, 15. Although the frequency of these uses was not specifically described in Argyle, this sort of sporadic, relatively minimal use is arguably reminiscent of Lundahl Farms’ sporadic, relatively minimal use of the disputed part of Parcel 34.

¶64 Unfortunately, the trial court did not make any findings regarding this evidence of co-occupation. The court referred to testimony that “portions west of the most western road were utilized and rented out to [Lessees], not [Appellees],” but the court did not make findings about the extent of the lease over the disputed area, the extent of Dewey‘s co-occupation of the disputed area for more than two decades, or the extent of Carl‘s use of the property every year, including his use of the eastern road—all of which could suggest that Lundahl Farms and its predecessors were not treating the old fence near the slough as a boundary. See Linebaugh, 2020 UT App 108, ¶ 26 (describing the question of acquiescence as being “based solely on the parties’ actions in relation to each other and to the line serving as the boundary” (cleaned up)).

¶65 Without findings on these factual issues, we do not know whether the court found the evidence of co-occupation credible or how the court factored the evidence into its analysis on the question of Lundahl Farms’ acquiescence to Appellees’ asserted boundary. And because this is material to whether there was mutual acquiescence, on remand the court must make the requisite factual findings and provide the analysis necessary to enable meaningful appellate review.15 See Maak, 2016 UT App 73, ¶ 46.

C. The Legal Relevance of Evidence Relating to Non-Landowners’ Actions and the Purpose of the Old Fence

¶66 Lundahl Farms also contends that the trial court committed legal error in considering certain evidence as relevant to the element of mutual acquiescence. Specifically, it argues that the actions of non-landowners are not relevant to mutual acquiescence. Lundahl Farms also appears to suggest that because the original purpose of the old fence “was to keep cattle out of the slough,” the court could not conclude that the parties acquiesced to the fence as a boundary, and it asks us to reverse the trial court on this basis. Other than in one small respect, we disagree with Lundahl Farms on both points.

1. Non-Landowners’ Actions

¶67 Lundahl Farms argues that the “actions of Scott . . . [are] not relevant because [he] was never an adjoining landowner.” It is true that the actions of certain individuals cannot serve as evidence of mutual acquiescence if they do not own either of the

properties in question. See Argyle v. Jones, 2005 UT App 346, ¶¶ 11-12, 118 P.3d 301 (concluding that parties could not acquiesce in a boundary on “property that neither of them owned“); see also Fuoco v. Williams, 421 P.2d 944, 947 (Utah 1966) (“[A]ny inference of recognition and acquiescence in the ditch as the boundary by the various individuals, [who were] not record owners, who farmed the . . . tract is immaterial.“). But the trial court did not cite Scott‘s testimony recounting his own actions. Although Scott did testify regarding his own uses of the disputed area, he also described conditions present throughout his lifetime, including the existence of certain fencing and Dewey‘s, Blaine‘s, and Darwin‘s uses of the property. To the extent the court relied on these aspects of Scott‘s testimony in speaking to mutual acquiescence of the then-owners of Parcel 33 and Parcel 34, the trial court did not err.16

¶68 The court did err, however, in relying on Scott‘s statement that “he assumed the [disputed] land was [Appellees‘] as their two predecessors had used it.” As explained above, to the extent Scott testified about his recollection of the landowners’ actions, from which mutual acquiescence could be objectively inferred, his testimony was material. But any assumptions Scott made about the parties’ respective ownership were not. See Fuoco, 421 P.2d at 947. On remand, the court should not consider any assumptions Scott had about who owned the disputed area.

2. The Original Purpose of the Old Fence

¶69 Lundahl Farms next challenges the parties’ ability to acquiesce to the old fence at the slough serving as the boundary line because “[t]he purpose of the fence . . . was to keep cattle out of the slough” and the parties therefore could have “never intended [for it] to be [the] boundary line between the two properties.” Yet Appellees direct our attention to our recent decision in Linebaugh v. Gibson, in which the nonclaimants advanced an almost identical argument, “assert[ing] that if a fence is built to confine animals,” that “initial intent . . . renders any subsequent interaction between the nonclaimant property owner and the claimant immaterial” to being able to establish mutual acquiescence. See 2020 UT App 108, ¶ 28. We found that argument to be inconsistent with both logic and precedent, because it is “the parties’ objective actions in relation to the boundary and not their mental state” that determines whether there has been mutual acquiescence. Id. (cleaned up). We therefore held that the initial purpose of any fence being asserted as an acquiesced boundary is “not dispositive” to the mutual acquiescence analysis; instead, “where such a fence is built and how the parties thereafter regard it” are the relevant inquiries. See id.

¶70 Similarly here, the fact that the old fence was originally built to keep animals out of the slough is relevant to the mutual acquiescence analysis but is not dispositive on its own. What matters is the objectively viewed actions of the parties since the fence was constructed, and Lundahl Farms’ attempt to argue otherwise is unavailing.17

CONCLUSION

¶71 Boundary by acquiescence claims present “highly fact-dependent question[s],” meaning that the trial court will necessarily be in a more advantaged position than we are when it is reviewing the evidence directly. See RHN Corp. v. Veibell, 2004 UT 60, ¶ 24, 96 P.3d 935 (cleaned up). Nevertheless, the absence of “appropriate and specific findings” on such fact-dependent questions “is a fundamental defect that makes it impossible [for us] to review the issues that were briefed without invading the trial court‘s fact-finding domain.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 37, 70 P.3d 35 (cleaned up). In other words, without adequate factual findings on all material issues, we are unable to ascertain whether the trial court‘s decision follows logically from and is clearly and convincingly supported by the evidence. “This fundamental defect prevents us from proceeding forward and requires us to remand this case to the trial court to complete the findings of fact and to conduct further proceedings if necessary.” Id.

¶72 We largely reject Lundahl Farms’ challenges to the legal relevance of some of the evidence the trial court considered in concluding that Appellees have proven boundary by acquiescence, but we deem certain of the court‘s factual findings to be clearly erroneous, and we conclude that its findings are altogether inadequate to sustain its legal conclusion that Appellees had established boundary by acquiescence. We therefore vacate the trial court‘s ruling and remand the case for the entry of supplemented or modified findings, and for the court to enter judgment in accordance with its revisions. This endeavor may involve “determin[ing] the issue[s] anew” based on “the record evidence,” see Maak, 2016 UT App 73, ¶ 46, or, if the court deems it warranted, further evidentiary proceedings, see Harrison, 2003 UT 14, ¶ 37.18

Appendix A: Deeded Property Lines of Parcels 33 and 34

Appendix B: Boundary Recognized in First Order

Appendix C: Boundary Recognized in Amended Order

CERTIFICATE OF MAILING

I hereby certify that on the 30th day of December, 2021, a true and correct copy of the attached OPINION was sent by standard or electronic mail to be delivered to:

MICHAEL J BOYLE
ATTORNEY AT LAW
MICHAELJBOYLELAW@GMAIL.COM

JOSEPH M. CHAMBERS
JOSH M. CHAMBERS
J BRETT CHAMBERS
HARRIS PRESTON & CHAMBERS PC
JCHAMBERS@UTAHLAWFIRM.COM
JOSHCHAMBERS.LAW@GMAIL.COM
JBC@UTAHLAWFIRM.COM

HONORABLE KEVIN K. ALLEN
FIRST DISTRICT, LOGAN DEPT

FIRST DISTRICT, LOGAN DEPT
ATTN: JANET REESE
CACHE COUNTY HALL OF JUSTICE
logancrim@utcourts.gov

Jammy Berg

Judicial Secretary

TRIAL COURT: FIRST DISTRICT, LOGAN DEPT, 170100126

APPEALS CASE NO.: 20190905-CA

Notes

1
Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
2
On appeal from a bench trial, we generally “view the evidence in the light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Linebaugh v. Gibson, 2020 UT App 108, n.5, 471 P.3d 835 (cleaned up). But we present conflicting evidence to the extent necessary to address the issues raised on appeal. See id.
3
Appellee Darwin Layne Nielsen is known socially by his middle name. And because most of the family members share the same surname, we refer to them by their first names (or in the case of Layne, his middle name) for clarity.
4
The exact year this fence was built is not in the record, but evidence was presented at trial that it existed at least as far back as 1959.
5
Attached to this opinion as Appendix A are two maps depicting Parcel 33, Parcel 34, and their shared boundary line. The first map of Appendix A depicts a macro-level view of the properties and the disputed boundary line, and the second map depicts a closer view of the ancestral home, the livestock-raising area, and the eastern and western roads providing access to the livestock area. These maps were adapted from a map found in the record, and are provided to the reader for reference only.
6
We recognize that the reader may have trouble keeping track of the familial relationships relevant to this case. To reiterate, Dewey Nielsen and Blaine Nielsen were brothers who, together with each of their wives, owned Parcels 34 and 33, respectively, at the time of the parcel split in 1963. One of Blaine’s sons, Darwin Blaine Nielsen, eventually gained title to Parcel 33. Title to Parcel 33 later passed to Darwin’s son, Darwin Layne Nielsen, (continued…) (…continued) who is known as Layne. Each of these individuals—Dewey, Blaine, Darwin, and Layne—raised livestock and kept concomitant personal property in the disputed area at one time or another.
7
“The modern combine harvester, or simply combine, is a versatile machine designed to efficiently harvest a variety of grain crops.” Combine Harvester, Wikipedia, https://en.wikipedia.org/wiki/Combine_harvester [https://perma.cc/DDE3-DTAB].
8
As described by Carl, silage is “chopped corn that’s aged for cattle to eat.”
9
As to the other claims before the trial court, it held that Lundahl Farms was unable to meet its burden of establishing waste, delinquent rent, or unlawful detainer; that Appellees could not establish adverse possession because they had not paid any taxes on Parcel 34; that no “prescriptive easement exists” over the disputed area because it had already concluded that the same area had become the property of Appellees based on boundary by acquiescence; and that it did not need to address the occupancy statute claim because the “boundaries acquiesced (continued…) (…continued) to by the [p]arties cover any improvements [Appellees] are claiming.” None of the court’s rulings on these issues have been challenged on appeal.
10
See infra ¶ 42 (listing required elements and evidentiary standard for boundary by acquiescence in Utah).
11
This order also included a map depicting the boundary that the court concluded had been acquiesced to. This map has been reproduced and attached to this opinion as Appendix B.
12
The amended order included both a more precise metes-and-bounds description of the boundary that the court recognized, as well as a map depicting that boundary. The map and description were created by a surveyor and submitted to the court by Appellees, and that map has been reproduced and attached to this opinion as Appendix C.
13
Lundahl Farms appears to concede that the first element, establishing a visible line, was satisfied, stating in its opening brief that it “is not challeng[ing]” the trial court’s conclusion that there was sufficient evidence of “a visible line in the old fence near the slough.” But at the same time, Lundahl Farms brings what it presents as a standalone legal issue, arguing that the boundary identified by the trial court was erroneous and requires reversal because the “old fence line near the slough . . . far exceeds the common boundary between the two properties” and because the new boundary creates “a segmented parcel of land” that is cut off from the rest of Parcel 34. In response, Appellees argue that the court properly “adopted the drawings and legal descriptions prepared by a licensed surveyor to ensure that the order reflected the accurate boundaries between the properties,” and that Lundahl Farms’ argument on appeal is “contrary to the entire theory of the case” it advanced at trial. Lundahl Farms provided no response to either of Appellees’ arguments in its reply brief, and it is not apparent from the limited argument in Lundahl Farms’ opening brief that the court erred in adopting the drawings and descriptions prepared by the expert. Accordingly, Lundahl Farms has failed to meet its burden of demonstrating error on this score.
Nevertheless, because we are remanding this case for additional proceedings, we encourage the court on remand to enter more detailed factual findings on the visible line element. To satisfy this element, the claimant must establish the existence of one or more “markers”—such as “monuments, fences, (continued…) (…continued) buildings, or natural features”—that together “create[] a clearly visible line” delineating the “claimed boundary line.” See Hansen v. Kurry Jensen Props. LLC, 2021 UT App 54, ¶ 31, 493 P.3d 1131 (cleaned up). In its amended order, the court concluded that Appellees had “established that there was a visible line with the existing fence lines and [Lundahl Farms’] existing road that abuts [Parcel 33] to the west.” Yet, as far as we can tell based on the evidence in the record and the map in the trial court’s amended order, the old fence at the slough served as only a portion of the southern part of the boundary identified by the court. And while the eastern edge of the western road does appear to define the entire western portion of the court’s recognized boundary, it is unclear what markers—if any at all—the trial court used to define the northern and eastern portions of the new boundary. To enable meaningful appellate review, the court should enter complete findings to support any determination that Appellees have established, by clear and convincing evidence, the existence of a visible line on each part of the claimed boundary.
14
In its decision, the trial court cited to two minutes of the trial transcript as containing the relevant testimony from Carl on this point. However, as Lundahl Farms points out, Carl was not even testifying during the time period the court identified.
15
In declaring this evidence relevant to the mutual acquiescence issue, we do not mean to conclude that Dewey‘s use of the disputed area—which ended nearly thirty years before (continued...) (...continued) Lundahl Farms served its notice to vacate—is fatal to Appellees’ boundary by acquiescence claim. It may be that Dewey‘s use falls outside of the relevant twenty-year period. But in reaching its conclusion that occupation and mutual acquiescence were present for at least twenty years, the trial court did not identify a specific time range that all the elements of boundary by acquiescence had been established, instead simply concluding that Appellees had “met the requirement of a long period of time.” Without knowing at what point in time the trial court determined the elements of boundary by acquiescence had been met, we are unable to definitively state what evidence is relevant. On remand, the court should state with clarity if and specifically when the twenty-year period was met.
16
For the same reason, it was not error, as Lundahl Farms contends, for the trial court to cite evidence of Layne‘s actions demonstrating “usage of the area of the cattle operation prior to becoming an adjoining landowner.”
17
In challenging the court‘s mutual acquiescence determination, Lundahl Farms also directs us to Carl‘s testimony that he has “consistently” paid taxes “for the entire area of Parcel 34” since the time that the property was deeded to his wife‘s trust. But Lundahl Farms does not identify what error, if any, the trial court made with regard to this fact. Before the trial court, Lundahl Farms cited Carl‘s tax-related testimony in support of (continued...) (...continued) its argument “that if the [c]ourt finds that there was boundary by acquiescence beyond the land under the back of the home, the payment of taxes for all of Parcel 34 for more than 7 years constitutes adverse possession over all of Parcel 34.” But Lundahl Farms does not repeat this argument on appeal, nor does it offer any rebuttal to Appellees’ argument that insofar as Lundahl Farms believes its payment of taxes is relevant to the issue of mutual acquiescence, that argument is unpreserved. Because Lundahl Farms does not identify an error relating to this evidence, nor does it respond to Appellees’ argument challenging preservation, we do not address the tax evidence further.
18
Largely because of its conclusion that Appellees had established boundary by acquiescence, the trial court rejected Lundahl Farms’ unlawful detainer claim and it did not reach Appellees’ prescriptive easement and occupancy statute claims. See supra note 9. Although we express no opinion on the merits of those claims, nothing in this opinion should be construed to limit the court‘s ability to consider them on remand should it reach a different conclusion on Appellees’ claim for boundary by acquiescence.