*1 judgment, to allow plaintiff for correction of by the fact that the This is shown plaintiff for the January credit amount of defendant met with the $10,000 reconciling of its issuance bond date July 1963, together counts, pursuant thereto de- with 10% thereon; plaintiff a check in the and for of a reason- fendant issued attorney’s insisted $1,977.47 upon it able fee based the total amount of which judgment adjusted. the ac- pay plaintiff close as so off response plaintiff’s de- (appellant). tiff count. But mands, it acknowledged that owed it later CALLISTER, J., C. $1,942.04. plaintiff additional an gave manager Defendant’s less being something reads as writer certain, that in a conversation prior he tendered this amount Olpin Mrs. diametrically incon- This is suit. defendant’s answer to the
sistent with the
plaintiff’s complaint alleged wherein
“that amounts the defendant to owed plaintiff deposits made for Wright, Robert J. and Rosemarie WRIGHT defendant, plaintiff including the wife, Respondents, A, Exhibit debenture bond has been emphasis herein is ours.] [All full.” al., Richard L. et CLISSOLD stated in the de Appellants. position thus propriety answer bears No. 13431. fees, attorney’s plaintiff allowing the Supreme Court of Utah. provided for in the expressly which are May 1, 1974. None were al bond case default. the de found
lowed even $1,942 and so
fendant indebted for the judgment.7
awarded
the trial court was that amount depos due on was on balance
its, not see on the bond. We way the being
this as correct. Whichever viewed, accounting
dispute is it involved as
for defendant itself deposits which the payments subsequent
serts credited bond, and for which defendant fully credit plaintiff had been
claimed the not to paid; which was found
ed and plaintiff Accordingly,
be a fact. entitled to reimbursement attorney’s fees. argued matters which
Plaintiff has unnecessary
we think discuss. herein, have said
cordance with what we the district court case remanded to Respective appropriate designated counsel made the of a F.M.A. basis schedule. See attorney’s Corp. stipulation, Build, if allow- fees were 4 above. footnote able, fix on the the court could the amount
approximately eight acres of and de- fendants were approxi- record owners of mately 440 acres. Included within tiffs record title an area of acres to which defendants have 2¼ asserted a claim under the doctrine boundary by acquiescence. The matter jury was submitted upon special to a inter- rogatories, and the trial made find- ings of fact in with the an- accordance swers jury rendered appeal Defendants therefrom. purchased
Plaintiffs 1962; vendor, Hanley, Mr. indicated was approximately 250 feet north of a fence line that ran generally east-west direction. Mr. purchased the-1940’s; both he always paid have the taxes on this acres situated north 2¼ of the fence. purchased property in 1960 from Mr. landowner, had served notification that not was situated on the bounda-
ry. Defendants’ deed does not include disputed nor their neither taxes thereon. that he became
Mr. Loertscher testified
in 1930 and
familiar with
old;
appeared
time the fence
strung
three barbed wires
constructed of
north of
aspen posts. He testified that
e.,
cultivated,
was
i.
the area
planted.
hay
crop of
was
South
willows,
brush,
sage
was
fence there
pur-
other brush. The
Gibbs, Clyde, Mecham &
G.
William
cattle;
foraged
holding
the cattle
pose of
City,
Pratt,
for defendants
Lake
Salt
cut;
prevented
was
after the
appellants.
bog south
wandering into a
cattle from
Shaffer,
City, for
Lake
Carvel R.
Salt
The witness testified
of the fence.
respondents.
land
plaintiffs’ and defendants’
fam-
Peterson
originally owned
CALLISTER, Chief Justice:
ily,
he first became familiar
when
mortgaged
Petersons had
quiet ti-
fence. The
initiated
parcel
one
their northern
Snyderville,
acres of
near
parcel of land
to a
tle
the mort-
Powers foreclosed on
owners
Powers.
record
Plaintiffs were
Utah.
land;
possession
he
that the fence
gage
took
hay up
the fence.
planting
anything
failure to do
continued
about it
land from
of time
Mr. Loertscher leased
estab-
him
purchased
it from
lished
acquies-
Powers
type
testified that
cence. Defendants
1946. Mr.
*3
parties passively
of case
accept
the south-
where the
had
the fence marked
assumed
the
property
cultivat-
fence
boundary
boundary
requi-
ern
and
line as the
for a
of
time,
parties
site
He testified that
of
the
ed the entire area.
need not
Hanley in- have a necessary
intent
in 1948that Mr.
mental
that
the
approximately
boundary
the
be
the fence was not on
the
line.
formed him that
purchase
assert that
the
issue is
boundary.
to
the sole
whether
He offered
both
parties
responded
must
the
that
“intend”
fence line
who
to be
boundary.
the
Subsequent-
parties
If the action
the
ground.
of
had to have
passive intent,
overcomes
the
ly,
interfered with the cultivation
defendants
no one
prevail.
passive
should
If a
intent
up
the fence. Mr. Loertsch-
is de-
of the area
to
terminative,
any
plaintiffs
prevail
con-
the
should
he had never had
er admitted that
according
any
to
agreement with
defendants.
versation or made
boundary.
anyone
the fence
the
that
In Fuoco v.
Williams2
court
Witness, Ivers,
testified
stated
prerequisites
that there
four
were
to
a conversation
he had
establish a
boundary
of
by ac
informed Ivers that he
quiescence:
occupation up
(1)
to a visible
meadow,
of the
did not
own
line
by monuments,
marked
fences or
Hanley
given him
to
had
buildings,
acquiescence
mutual
(2)
in the
the conversation
Mr. Loertscher denied
line
the boundary,
as
(3)
long period
prop-
the
and stated that he had
years,
of
by
(4)
adjoining landowners.
erty
the
the al-
time of
to defendants
established,
Once these elements are
the
leged discussion.1
is required
presume
court
the
existence
a binding agreement
of
unless
party
the
that
and
court found
a visible
The trial
proves by
who assails
competent
evi
in exis-
distinguishable fence line
been
actually
dence that
agreement
there
twenty
prior to
tence
more than
between
the
landowners or there
The de-
the
filing of
action
1968.
could not
proper agreement.
have been a
predecessors had occu-
fendants
and
prove
Facts which
the latter
the
include
pied
property
of
use of the
north
and made
following:
parties
(1) no
available
period.
during
the
fence line
make an agreement,
g.,
ownership
e.
sole
predecessors
occu-
property
with the existing line
pied
the
use of
made
later transferred
tracts to
line
south
the north
but not to
two
persons;
(2)
more other
the line
parties
period. The
during this
set for a
setting
a
the
predecessors in interest neither treated
dispute
(3)
absence of a
boundary nor.
a
did
fence line as
uncertainty
boundary,
quiesce
be-
as
said fence
(4) possibly mistake or inadvertence in lo
foregoing
parties.
tween the
Based on the
cating the boundary on facts that would
title to the
quieted
warrant
equity.3
relief in
in the
case,
contend that al-
appeal,
On
defendants
In the instant
defendants
predecessors
parties or
that
the failure of
and their
sale,
3. King
Fronk,
135, 138-139,
after
became
v.
2d
14 Utah
partner
operated
Ringwood
(1963) ;
Bradford,
378 P.2d
119, 123,
(1954).
farm
2d
until 1965.
Utah
landowners. The evidence indicated CROCKETT, (concurring) : the fence was constructed to control cattle Justice locate a thing I there is merit the defendants’ fact, doubt or uncertain. evidence contention that any- mere failure to person indicated that the building the fence thing about dividing properties a fence situated it and there period long over a constitutes ac- neighbor testimony to consult. The ; quiescence and that this can be with- true early indicated that as as 1948 Mr. out showing of actual Nevertheless, intent. in this case there is owner that the not the bounda sup- basis in the evidence ry, port information the view vendees, the defendants. The evidence of this fence was never established intend- physiography of the area was consist- ed as a and that this is suffi- ent with the that Mr. cient to overcome the granted Mr. Loertscher would normally arise from the this 2 strip, separated acre adjoining properties fence between J4 the remainder of the years. so Williams, 2, supra, 3, supra. Fuoco note at Note 2d, P.2d. 947 of 421