MEMORANDUM DECISION
' 1 Defendants Edwin and Cynthia Lauder and Mary Best Ferguson challenge the district court's denial of their summary judgment motion and its grant of summary judgment to plaintiffs Bruce and Diane Martin. Defendants also challenge the district court's ruling that their claim for equitable estoppel was moot. We affirm the district court's denial of Defendants' summary judgment motion but reverse the court's grant of the Martins' summary judgment motion and its ruling on Defendants' equitable estoppel claim.
12 This dispute between Defendants and the Martins arose over the boundary that separates their properties In the 19705, Diane Martin's parents, the Eskelsons, owned the Martins' property and built a fence that the Martins removed in 2007 after a survey they requested revealed the fence was not located on their property's boundary as described in their deed. At the time the fence was built and until 1991, Defendants' properties were not occupied. After Defendants purchased their properties, they each built a house on their respective property and made improvements up to the fence line.
T3 Soon after the Martins removed the fence, Defendants registered their objection, and the Martins filed an action to quiet title in the property between the fence line and the property boundary as fixed by the survey (the Disputed Property). 1 Defendants answered by claiming they were entitled to the Disputed Property under the doctrines of boundary by acquiescence and equitable es-toppel. Subsequently, each party filed a motion for summary judgment, supported by affidavits, and both sides filed motions to strike portions of the other side's supporting affidavits. The district court struck portions of the affidavits of Defendants, as well as portions of a neighbor's affidavit offered by Defendants. The district court denied Defendants' motion to strike the affidavits of Diane Martin and Darrell Eskelson. The court ultimately denied Defendants' summary judgment motion, determined that Defendants' equitable estoppel claim was moot, and granted the Martins' summary judgment motion. Defendants appeal these rulings.
T4 "Summary judgment is appropriate only if 'there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law."" Cabaness v. Thomas,
T5 The district court properly denied Defendants' summary judgment motion on their boundary by acquiescence claim. To be entitled to judgment as a matter of law, Defendants needed to prove that the undisputed facts established "() occupation up to a visible line marked by monuments, fences, or buildings, (i) mutual acquiescence in the line as a boundary,
[2]
(iii) for a long period of
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time,"
[3]
(iv) by adjoining landowners." RHN Corp. v. Veibell,
T6 Even if we considered the facts contained in the portions of the affidavits that were stricken,
4
Defendants simply did not present undisputed facts" that, viewed in the Martins
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favor, would definitively establish each element of their boundary by acquiescence claim. Specifically, they did not establish as a matter of law "occupation up to a visible line marked by ... [the] fencel ]" nor mutual acquiescence for a "long period of time," RHN Corp.,
17 While properly denying Defendants' summary judgment motion, the district court incorrectly granted the Martins cross-motion for summary judgment. To be entitled to summary judgment, a party filing a cross-motion for summary judgment must establish its own entitlement to summary judgment rather than simply rely on the other party's failure on its own motion.
6
See Orvis,
18 Although Defendants clearly disputed some of the Martins' facts, the Martins argued that Defendants had conceded, by *522 reason of filing their own summary judgment motion, that no genuine issues of material fact were disputed. This argument is without merit.
"Cross-motions for summary judgment do not ipso facto dissipate factual issues, even though both parties contend ... that they are entitled to prevail because there are no material issues of fact." Rather, cross-motions may be viewed as involving a contention by each movant that no genuine issue of fact exists under the theory it advances, but not as a concession that no dispute remains under the theory advanced by its adversary. In effect, each cross movant implicitly contends that it is entitled to judgment as a matter of law, but that if the court determines otherwise, factual disputes exist which preclude judgment as a matter of law in favor of the other side.
Wycalis v. Guardian Title,
19 The Martins summary judgment motion claimed they were entitled to summary judgment because Defendants failed to provide any evidence that the Eskelsons acquiesced in the fence as a boundary. Even assuming the district court correctly struck portions of Defendants' affidavits, see supra note 4, Defendants produced other admissible evidence to dispute the Marting' assertion that the Eskelsons did not acquiesce in the fence as a boundary line. These facts, when viewed in Defendants' favor, demonstrated that the Eskelsons may have acquiesced in the fence as a boundary.
110 First, Defendants produced admissible evidence that showed they made improvements up to the fence without any protest or other reaction by the Eskelsons, which, when viewed in Defendants' favor, is evidence of acquiescence by the Eskelsons during the time Defendants owned their properties. See Smith v. Security Inv. LTD,
T 11 Second, Defendants produced admissible evidence, in the form of unstricken portions of the neighbor's affidavit, which disputed the Martins' claim that the fence followed a crooked line not suggestive of a boundary between residential lots The neighbor stated that the "fence on [his] northern boundary line followed the exact line of the fence that is in dispute." See id. 11 7 (stating that if a fence "follow[s] a nearly straight line, was constructed along the record boundary between several different properties, and only deviated from the record boundary with regard to the disputed . parcel," it is evidence that the fence acted as a boundary). This evidence, when viewed in Defendants' favor, is suggestive of the Eskelsons' acquiescence in the fence as a boundary even before Defendants owned their properties.
T12 Third, Defendants produced admissible evidence to dispute the Martins' claim that the fence was built only to enclose the
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Eskelsons' yard from a drop in elevation with an unstricken statement in Cynthia Lauder's supplemental affidavit that stated, "At the time I purchased my property, the drop in elevation from the fence in dispute was well north of the disputed property and was a gentle slope." This disputed evidence, when viewed in Defendants favor, suggests the possible complete irrelevancy of the claimed slope. It also suggests that even if the fence was originally built for one purpose, e., to provide safety from a precipitous drop in elevation, that purpose may have ended and acquiescence in the fence as a boundary may have later occurred. Cf. Hales v. Frakes,
T 13 Finally, Defendants disputed the Mar-ting' claim that the Eskelsons continued to access, maintain, and use the Disputed Property beyond the fence after the fence was built by producing the affidavit of a prior owner of the Lauders' property,
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which affidavit stated he never witnessed the Eiskel-sons accessing or using the Disputed Property while he owned the property from 1986 to 1991.
8
See RHN Corp. v. Veibell,
114 The Martins summary judgment motion also claimed that Defendants could not establish the requisite twenty-year period of acquiescence even with the prior owner's affidavit and testimony.
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However, the Martins' contention in this regard rests on inconsistencies between the prior owner's affidavit and his deposition,
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which admittedly bear on the prior owner's credibility as a witness in recalling events from many years ago. However, weighing credibility and assigning weight to conflicting evidence is not part of the district court's role in determining summary judgment. See Pigs Gun Club, Inc. v. Sanpete County,
T15 As has been shown, Defendants produced evidence at variance with that on which the Martins relied as concerns several key factual matters. The Martins claim that no material facts were in dispute is, thus, untenable. And the Martins failed to establish that, despite the disputed facts, they were entitled to judgment as a matter of law. Accordingly, the district court erred in granting their motion for summary judgment. See Giusti v. Sterling Wentworth Corp.,
116 Defendants are also correct that the district court erred when it stated in its ruling that "[blecause Defendants cannot meet the element of acquiescence, their argument for estoppel is MOOT." Just because Defendants did not establish their entitlement to summary judgment on their boundary by acquiescence claim does not mean that their separate claim for equitable estop-pel is moot. See generally Bakr v. Imus,
117 Accordingly, we affirm the district court's denial of Defendants' summary judgment motion, reverse the court's grant of the Martins' summary judgment motion, reverse the dismissal of Defendants' equitable estop-pel claim, and remand for trial or such other proceedings as may now be appropriate.
T 18 WE CONCUR: WILLIAM A. THORNE JR., Judge and J. FREDERIC VOROS JR., Judge.
Notes
. This case clearly illustrates the problem with waiting until a fence has been in place for over thirty years to obtain a survey io determine where the fence should "really" be located. If the exact placement of a fence is important, the better practice is to obtain a survey at the time the fence is erected to establish that the fence will be in the proper location from the beginning. See generally Mason v. Loveless,
2. "Mutual acquiescence in a line as a boundary has two requirements: that both parties recog
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nize the specific line, and that both parties acknowledge the line as the demarcation between the properties." Mason v. Loveless,
3. ''The requirement that mutual acquiescence be for a long period of time has been interpreted in Utah to mean at least twenty years." RHN Corp. v. Veibell,
. Defendants challenge the district court's decisions to strike portions of the affidavits they submitted in support of their motion. Because this issue does not change the outcome of the appeal, we need not decide whether the district court erred in striking portions of the affidavits. We note that most of the statements that were stricken did not contain factual assertions but, rather, contained legal conclusions. See Utah R. Civ. P. 56(e); Cabaness v. Thomas,
. Defendants argued in their summary judgment motion and on appeal that the facts were undisputed. However, several important facts clearly were disputed.
. The district court's ruling denied Defendants summary judgment and then stated: "Accordingly, because Defendants' argument for boundary by acquiescence is defeated, Plaintiffs' Cross-motion for Summary Judgment is GRANTED."
. Similar statements in a neighbor's affidavit were stricken because the district court determined they were irrelevant. As was previously discussed, see supra note 4, a nonadjoining landowner may provide relevant testimony based on his personal knowledge as to what he saw or did not see. See Utah R. Civ. P. 56(e); RHN Corp. v. Veibell,
. It is true that the prior owner did not live on the property while he owned it and only walked the grounds on occasion. But as he explained in his deposition, if the Eskelsons were accessing his property and planting or weeding, he "would have been aware of the evidence of someone doing something there" and "there was no evidence of it." The prior owner also testified that "nothing was planted" and that the Disputed Property was "completely unkempt," while conceding that there may have been grapevines clinging to the fence. Furthermore, the prior owner testified that there was trash, including construction materials, being dumped, apparent» ly by the Eskelsons, on his entire vacant lot, not just on the Disputed Property.
. Because neither the Martins' summary judgment motion nor the district court's ruling distinguishes the Lauders' and Ferguson's claims, we express no opinion on the issue raised on appeal of whether the prior owner's affidavit and testimony could establish acquiescence for Ferguson's property when the prior owner never owned Ferguson's property.
. In this case, the prior owner's affidavit was submitted and then the Martins deposed him. This situation differs markedly from the cases where an affidavit conflicts with a previously taken deposition. See Magana v. Dave Roth Constr.,