Lead Opinion
delivered the Opinion of the Court.
We granted certiorari on the issue of whether a one hundred-year old division fence lost its identity as a boundary dividing two parcels of land because title to the land on both sides of the fence was acquired and held by one entity for a fifteen-day period in 1977.
I.
In 1991, the respondent, Gail Terry (Terry), individually and as personal representative of the Estate of Bill Powers, Jr., brought an action to quiet title against the petitioners Fernando Salazar and Richard Pretto (hereinafter jointly Salazar). Salazar owns a tract of land (the Salazar Tract) adjoining Terry’s 80-acre property (the Terry Tract). Both properties are located in Huerfano County, Colorado. The Salazar Tract surrounds the Terry Tract on three sides, the north, west, and east.
This action was precipitated when Terry hired a private surveyor and discovered that the fence is not located on the government subdivision lines described in her deed. According to Terry’s testimony at trial, her privately commissioned survey revealed that the deviation between the government subdivision lines and the fence varies anywhere from 100 to 160 feet along her property’s western boundary. By Terry's reckoning, the fence is east of the government subdivision lines and is located inside the Terry Tract. Hence, Terry claims that the fence is not the true boundary between the parties’ parcels of land and that the description in their deeds, ie., the government subdivision lines, should prevail.
Mills Ranches, Inc. (Mills Ranches) acquired the land presently owned by Salazar in 1971 and held it until 1979 when Mills Ranches lost the property in a bank foreclosure sale to Travelers Insurance Company. In 1989, Travelers Insurance Company sold the land to Salazar. On November 3, 1977, Mills Ranches acquired the land now owned by Terry and, on November 18, 1977, conveyed it by warranty deed to Jerry Mills. Jerry Mills conveyed the land to Terry’s predecessor in title and Terry subsequently acquired the property on July 20, 1987. Therefore, between November 3, 1977, and November 18, 1977, Mills Ranches owned both the Salazar and Terry Tracts simultaneously for fifteen days. During this fifteen-day period, Jerry Mills, as sole stockholder and principal of Mills Ranches, was the common owner of both tracts. As mentioned above, all these conveyances refer to the government subdivision lines.
A bench trial was held on March 29, 1993, in the Huerfano County District Court. The trial court found that the parties’ predecessors, prior to the period of common ownership, had acquiesced that the fence marked the boundary between the two properties. Pursuant to section 38^14-109, 16A C.R.S. (1982), the trial court concluded that this acquiescence established the fence as the legal boundary. Section 38-44-109 states that:
The corners and boundaries finally established by the court in [proceedings under this section], or an appeal therefrom, shall be binding upon all the parties, their heirs and assigns, as the corners and boundaries which have been lost, destroyed, or in dispute; but if it is found that the boundaries and corners alleged to have been recognized and acquiesced in for twenty years have been so recognized and acquiesced in, such boundaries and corners shall be permanently established.
The trial court based its decision, in part, on an earlier case brought in 1914 to quiet title to land immediately to the south of the land in dispute in this action. The trial court found that the land at issue in the 1914 case was bordered by the same fence as the one here. The trial court, however, explained that the portion of the fence at issue in the 1914 case was a continuation, running south, of the portion of the fence presently before the court. The 1914 case adjudicated the fence to be the legal boundary for the land south of the property now before us.
The trial court disregarded Jerry Mills’s intent as to the Salazar Tract because that land was not deeded over by Mills but rather was the subject of foreclosure. The trial court, however, did consider Jerry Mills’s intent in deeding over the land to Terry’s predecessor in interest and found that Mills intended that the fence constitute the western boundary of the Terry Tract. Hence, the trial court concluded that “notwithstanding the brief period of common ownership of the property in 1977, the subject fence is the actual boundary line between [Terry’s] and [Salazar’s] properties, notwithstanding the legal descriptions in [Terry’s] chain of title.” The trial court dismissed Terry’s action to quiet title. The trial court also dismissed Salazar’s counterclaim for trespass as barred by the applicable statute of limitations but granted Salazar one dollar in damages for de minimis trespass that occurred within the limitations period.
The court of appeals assumed that the trial court properly determined as a question of fact “that the fence by acquiescence marked
When a common owner acquires title to adjoining tracts, any agreement as to division that had previously been made while the ownership was in two different persons ceases to exist or be effective- Moreover, a division fence between two properties loses its legal significance when separate ownership of the parcels is merged in one owner_ Consequently, the common ownership acquired by Mills Ranches in 1977 nullified any significance the fence had previously been accorded as a boundary between separately held parcels. Mills Ranches as a subsequent grantor could therefore freely describe its conveyance by boundaries making no reference to the fence.
Id. (citations omitted).
The court of appeals held that the deeds were unambiguous and that the conveyances delineated the boundary in terms of the “nomenclature of the public land survey system as to the boundaries of the devised estate, without any reference to the fence.” Id. Therefore, the court of appeals concluded that the trial court’s finding, that Jerry Mills recognized the fence as the western boundary of the Terry Tract, was based upon improperly considered extrinsic evidence. Moreover, the court of appeals found that the evidence of Jerry Mills’s intent, considered by the trial court, was not dispositive.
II.
Mills Ranches’ fifteen-day period of ownership of both parcels of land controls the outcome of this case. The common ownership of the two tracts of land eradicated the significance of any acquiescence as to the legal boundary existing prior to the period of common ownership as a matter of law. An opposite conclusion would be compelled only if Jerry Mills had deeded over the land to Terry’s predecessor in title containing a description in the deed that the fence constituted the boundary. Instead, the deed given by Mills continued to refer to the government subdivision lines.
For Salazar to succeed on his claims, he would have to prove that Terry and her predecessor in title acquiesced to the fence as the boundary after the property was deeded by Mills or that Salazar had met the statutory and common law requirements for advérse possession.
Although there is no case law directly controlling in this jurisdiction, we are guided by cases arising in other jurisdictions and by the analysis of the doctrine of merger as it relates to easements.
In Patton v. Smith,
Specifically, the Patton court was convinced by the following:
In 1883 Remelius became the owner of both tracts, and the evidence shows that, when some question arose thereafter as to the location of the survey line, he said it made no difference, inasmuch as he owned all the land on both sides of the line, wherever it might be. So that even if the possession of Kennedy had been hostile to Remelius, and even if Kennedy had intended to claim to the line established as the survey line by [the county surveyor], without regard to whether that was the true line or not, and even if Kennedy and Re-melius had agreed upon the line established by [the county surveyor], nevertheless, when Remelius became the owner of both tracts of land, all such questions became immaterial. There was no adverse holding thereafter by Remelius as the owner of one tract against himself as the owner of the other tract, and there was no longer any question of any agreed line dividing the two tracts.
Id.,
Similarly, in Conklin v. Newman,
Our conclusion is reinforced by the doctrine of merger as it applies to extinguishment of easements. Easements and boundaries affect the relationship between parcels of land. Boundaries separate parcels of land. Easements, such as a “right of way,” burden one estate to the benefit of the other estate. The burdened estate is servient to the domi
Furthermore, the easement will not revive if the estates are separated once again “without the same type of action required to bring an easement into existence in the first place.” 7 Thompson on Real Property § 60.08(b)(1) at 480 (footnote omitted); see also Restatement of Property § 497, Comment h (1944) (“[u]pon severance, a new easement authorizing a use corresponding to the use authorized by the extinguished easement may arise;” however, it arises only “because it was newly created at the time of the severance”).
Salazar argues that merger of the Salazar and Terry Tracts did not occur and thus the legal significance of the fence as the boundary was not extinguished upon the acquisition of both properties by Mills Ranches. Salazar’s position is based on the theory that merger of the properties is a matter of the common owner’s intent. Salazar’s position fails under the law and under the facts of the case. The doctrine of merger applies in a number of contexts. As explained above, the term merger has a separate and distinct meaning when applied to extinguishment of easements. However, the term merger is also used in the context of mortgages. It is from this context that Salazar draws support for his argument that intent governs the occurrence of merger. Salazar cites our decisions in Goldblatt v. Cannon,
However, the term “merger” in the mortgage context is not synonymous with its use in the easement context. In particular,
The question whether the acquisition of the mortgaged land and of the mortgage debt by one person has in the particular case the effect of discharging the debt and extinguishing the mortgage lien is frequently one of some difficulty. When such is the result of the union of the two interests in one person, it is said that a “merger” of the mortgage occurs, or that the mortgage is “merged.” The words “merge” and “merger,” as used in this connection, are calculated to suggest false analogies drawn from the doctrine of merger of a less in a greater estate upon their acquisition by one person, but there appear to be no other available expressions, and they will here be used in accordance with universal practice.
5 Herbert Thorndike Tiffany, The Law of Real Property § 1479 at 503-04 (3d ed. 1939) (footnote omitted). Moreover,
The theory on which, upon the acquisition by one person of the mortgaged land and of the mortgage debt with the incidental lien on the land, the debt, and with it the lien, may ordinarily be regarded as extinguished, would seem to be that, under such circumstances, the person owning and controlling the debt can usually have no object in keeping it alive, it being in substance a claim against his own property, and he may consequently be presumed to intend that the debt shall be extinguished, a presumption to which, as tending to the simplification of titles, the courts are ready to give full effect. In accordance with this view are the numerous decisions that the intention of the holder of the two interests is the decisive consideration, and that no*1092 merger will take place if there is proof of an intention on his part to the contrary.
Id. § 1480 at 506 (footnote omitted).
There are different considerations in merger as it relates to mortgages and easements. Intent of the common owner is relevant in the mortgage context “because circumstances can arise in which merger would produce unintended and unjust results.” 12 Thompson on Real Property § 101.03(e) at 383 (footnote omitted) (explaining that merger leads to unfair results if there are successive mortgages and a junior mortgage may be unjustly enriched when elevated to senior status when the first mortgage is merged and extinguished).
By analogizing to the doctrine of merger in the easement context, we do not intend to equate easements with boundary fences. There are no dominant and servient estates created by boundary fences. Nevertheless, the easement analysis is relevant and applicable by analogy to boundary fences. As with easements, unity of ownership destroys the need for boundary fences. In contrast, unity of ownership should not always destroy the existence of a mortgage when other interests are dependent on it. In sum, the issue here is not whether the common owner intended that the two tracts of land merge. The common owner’s intent becomes relevant only if manifested in the deed. Rather, what is relevant is the effect of the unity of ownership on the legal significance of the fence.
The acquiescence to the fence as the boundary separating the two tracts of land was wiped out when common ownership of both tracts was held for a period of fifteen days. Once the two tracts fell under common ownership, the fence no longer served any legal purpose, i.e., there was no need for an internal boundary to separate land belonging to one owner. When the two tracts again came under separate ownership, the process of acquiescence and adverse possession commenced afresh.
III.
For the foregoing reasons, we affirm the court of appeals and hold that the common ownership of two tracts of land extinguishes any acquiescence in boundary lines attributable to the prior landowners of the tracts unless the deed adopts the boundary lines as previously acquiesced upon.
Notes
. We granted certiorari on the following issue: Whether a hundred-year old fence, historically recognized by the landowners on both sides to be the boundary, lost its identity as such "as a matter of law” because title to both sides of the fence was acquired and held by one entity for a fifteen-day period.
. A large map of the properties was submitted as evidence during the trial but is not part of the record on appeal. Salazar’s opening brief describes the Salazar Tract as surrounding the Terry Tract on three sides, the north, west, and east. This description is not challenged by Terry.
. Although the trial court did not set forth in its written opinion the particular evidence it considered in determining that Jerry Mills recognized the fence as the western boundary, the court of appeals made the following statement:
[W]e note that Mills himself did not testify. Another witness, a real estate broker, stated that Mills had generally motioned toward the fence when touring the parcel with the witness and while describing the extent of the tract.
Terry,
. Section 38-41-101(1), 16A C.R.S. (1982), provides that:
No person shall commence or maintain an action for the recovery of the title or possession or to enforce or establish any right or interest of or to real property or make an entry thereon unless commenced within eighteen years after the right to bring such action or make such entry has first accrued or within eighteen years after he or those from, by, or under whom he claims have been seized or possessed of the premises. Eighteen years adverse possession of any land shall be conclusive evidence of absolute ownership.
In addition, “[o]ne claiming title by adverse possession must prove that his possession of the disputed parcel was actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period.” Smith v. Hayden,
Dissenting Opinion
dissenting:
I respectfully dissent from the majority’s conclusion that fifteen days of common ownership of the two tracts of land in question here served to erase a boundary long recognized as being marked by a fence over 100 years old.
This ease concerns the integrity of the boundary fence between plaintiffs’ and defendants’ lands. The fence has been in existence since the 1880’s.
In 1977, for a period of fifteen days, the two tracts of land came under the common ownership of Mills Ranches, Inc. (Mills Ranches). The majority claims that due to this short period of common ownership, the long acquiesced boundary at the fence line
When parties acquiesce to the location of a particular boundary line, this boundary ripens into a reality after a prescribed period of time. Hartley v. Ruybal,
The statutorily prescribed time period for acquiescence in Colorado is twenty years. “[I]f it is found that the boundaries and corners alleged to have been recognized and acquiesced in for twenty years have been so recognized and acquiesced in, such boundaries and corners shall be permanently established.” § 38-44-109, 16A C.R.S. (1982).
An acquiesced boundary often will not lie on the surveyor’s true, location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson,
The policy underlying this construction of the language in the deed is the doctrine of repose, or “the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents.” Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries § 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:
If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.
Young,
Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young,
Mills Ranches acquired the Salazar tract by a deed in 1971.
The majority holds that because the Terry tract and the Salazar tract were held under common ownership for those fifteen days, acquiescence to the fence as the boundary between the two properties was extinguished. Maj. op. at 7-8. I believe that the doctrines of acquiescence and repose call for a different outcome. As the Michigan Supreme Court stated:
[A] boundary line long treated and acquiesced in as the true line ought not to be disturbed on new surveys.... [T]he peace of the community requires that all attempts to disturb lines with which the parties concerned have long been satisfied should not be encouraged.
Gregory v. Thorrez,
The public policy to be served in affording certainty to boundary locations between adjoining landowners is an important one. In my view, the boundary between the Salazar and Terry tracts was established as the fence line decades before either Mills Ranches or Terry entered the chain of title. Nothing that Mills Ranches did during its brief period of common ownership changed the location of the dividing boundary from the fence line.
Accordingly, I would reverse the court of appeals with directions to reinstate the trial court judgment in favor of the defendants.
I am authorized to say that Chief Justice VOLLACK and Justice SCOTT join in this dissent.
. In 1914, the Huerfano County court decreed that the fence represented the actual boundary line along two parcels immediately to the south of the properties at issue here. The terms of the 1914 Judgment only refer specifically to the description of the plaintiff Naranjo’s property, which was located to the south of the Salazar tract in this litigation. However, the defendant in the 1914 case alleged in his answer that he owned the tract now owned by Terry as well as the tract immediately to the east of Naranjo. Thus, the 1914 judgment may have dealt with precisely the same fence at issue in this case, even though the decree would only seem to address that portion of the fence to the south of the Salazar and Terry properties.
. The twenty year acquiescence period was first established by statute in Colorado in 1907. See Ch. 126, § 9, 1907 Colo.Sess. Laws 288.
. The deed by which Mills Ranches acquired that portion of the property is not clear. Mills Ranches acquired the NW1/4 NW1/4 of Section 28 in the 1971 deed, but appears not to have acquired all of the SW1/4 SW1/4 of Section 21. The deed makes reference to a conveyance of all of Section 21 lying south of the south right of way of the County Road, and presumably included the SW1/4 SW1/4 of Section 21. There is a deletion for "that portion of the El/2 and SW1/4 of said section 21 conveyed to Huerfano County” as to which there is no further evidence in the record. This issue was not raised on appeal.