Anderson v. Fautin

Decision Date26 June 2014
Docket NumberNo. 20120972–CA.,20120972–CA.
Citation763 Utah Adv. Rep. 5,330 P.3d 108
PartiesTerral E. ANDERSON, Plaintiff and Appellant, v. Janet FAUTIN, Defendant and Appellee.
CourtUtah Court of Appeals


Marcus Taylor, for Appellant.

Tex R. Olsen, for Appellee.

Judge STEPHEN L. ROTH authored this Opinion, in which Judge GREGORY K. ORME and Senior Judge RUSSELL W. BENCH concurred.1


ROTH, Judge:

¶ 1 This boundary dispute case raises a single issue concerning the application of the doctrine of boundary by acquiescence: must the claimant show active use of the land on both sides of a disputed boundary to satisfy the occupation element of the doctrine? The plaintiff purchased property in Piute County in 1968 and did not use it or visit it for more than two decades. The defendant owns adjacent property to the north where for more than twenty years she and prior owners had farmed and grazed livestock. In 2005, the plaintiff surveyed his land and then filed a quiet title action asserting his ownership of a narrow strip of land on the defendant's side of a 2,000–foot fence. The district court granted summary judgment in the defendant's favor, holding that the plaintiff's silence was evidence that the parties had long acquiesced in the fence line as a boundary and rejecting the plaintiff's argument that his failure to occupy his parcel was fatal to the defendant's boundary by acquiescence claim. We affirm and conclude that a landowner seeking to establish a boundary by acquiescence need only demonstrate that she has actively used the land up to the disputed boundary and need not show that the adjacent landowner has done the same.


¶ 2 Terral Anderson purchased a piece of real property in Piute County, Utah, in 1968.2 He left the property vacant and did not visit it (at least the portion along his northern boundary) for more than twenty-six years, until he retired in 1994. Janet Fautin purchased property north of Anderson's land in 1987. A 2,000–foot fence originally constructed in 1930 separates Fautin's property from Anderson's land and one other parcel.

¶ 3 About ten years after he retired, Anderson paid for a professional survey of his property. The survey revealed that the existing fence was 123 feet south of Anderson's north boundary line. Anderson filed a quiet title action in 2007 asking the court to recognize the survey as the correct boundary and to order Fautin to move the fence. In her answer, Fautin asserted that she had acquired the disputed land under the doctrine of boundary by acquiescence: the fence had “been established by acquiescence” as the “boundary for a period of substantially more than 20 years,” and therefore Anderson could no longer complain that the fence line was not the correct boundary.

¶ 4 The parties filed cross-motions for summary judgment. Anderson argued that because he “was an absentee owner,” “never used his land, and had no interaction with Fautin and her predecessors,” he did not occupy his property or acquiesce in the boundary established by the fence line, and Fautin therefore could not establish a boundary by acquiescence. In response, Fautin argued that parties relying on a fixed boundary and occupying land up to that boundary do not have the ... obligation of showing activity on the other side of the boundary fence.” She also maintained that an owner's “indolence or silence” was not a valid defense to boundary by acquiescence.

¶ 5 The district court ruled in Fautin's favor. It held that Anderson's “level of activity with respect to the properties [was] immaterial” because Fautin's “active use of the disputed area satisfies the occupancy requirement in establishing a boundary by acquiescence.” Moreover, the court noted, Anderson “either knew or should have known [Fautin] was using the disputed area up to the fence line,” but he “never objected.” The court concluded that Anderson's “silence, indolence, and failure to inspect his property constitute[d] a mutual acquiescence in the disputed boundary line.” Anderson appeals.


¶ 6 Summary judgment is appropriate only where there are no genuine issues of material fact and “the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c). Anderson does not claim that there were unresolved issues of fact. Rather, he argues that the district court's summary judgment ruling was incorrect because the district court “misread the law” when it held that Fautin's “active use of the disputed area satisfies the occupancy requirement in establishing a boundary by acquiescence.” We review a district court's grant of summary judgment for correctness.” Torian v. Craig, 2012 UT 63, ¶ 13, 289 P.3d 479.


¶ 7 The doctrine of boundary by acquiescence allows a land owner to establish a property line that differs from the legal description of his property by satisfying four elements: (i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, ... (iv) by adjoining landowners.” Ault v. Holden, 2002 UT 33, ¶ 16, 44 P.3d 781 (citation and internal quotation marks omitted). The long-period-of-time element has been defined by our case law as “at least twenty consecutive years.” Id. ¶ 23. The central issue on appeal is whether Anderson's inactivity on his side of the boundary is material to the occupation requirement. The district court held that it was not, concluding that Fautin's “active use of the disputed area” by itself “satisfie[d] the occupancy requirement in establishing a boundary by acquiescence.”

¶ 8 Anderson argues that “it is the conduct of both adjoining landowners that creates the boundary line, not one acting unilaterally.” In other words, he maintains, the occupation element “requires occupation of their respective parcels by both of the adjoining landowners,” and “activity on only one side of the disputed boundary” is not enough. (Internal quotation marks omitted.) In response, Fautin argues that Anderson cannot use his [s]ilence or inactivity ... as a defense.” We conclude that Fautin's use of the property up to the fence line satisfies the occupation element.

¶ 9 There do not appear to be any Utah cases that have directly addressed whether there must be active use of the property on both sides of a disputed boundary to satisfy the occupancy element of boundary by acquiescence. The district court concluded that Fautin's “active use of the disputed area satisfies the occupancy requirement” and held that Anderson's “level of activity” was “immaterial” to the issue. In its analysis, the court relied heavily on our decision in Carter v. Hanrath ( Carter I ), 885 P.2d 801 (Utah Ct.App.1994), and a Utah Supreme Court opinion that reversed it, see Carter v. Hanrath ( Carter II ), 925 P.2d 960 (Utah 1996).

¶ 10 But those cases, while helpful to an analysis of mutual acquiescence, fail to shed much light on whether occupation to the boundary line by both owners is required to fulfill the first element. In Carter I, a rancher grazed his cattle at the base of a plateau owned by his neighbor. 885 P.2d at 802–03. Even though the neighbor could not access the disputed area from her property on the plateau and had visited it just once, we held that the rancher's use alone had satisfied the occupation element of boundary by acquiescence. Id. at 802–05. We affirmed the trial court's decision granting title to the rancher, concluding that the other three elements of boundary by acquiescence had also been satisfied.Id. at 806–07. The Utah Supreme Court reversed, holding that because the neighbor was unable “to take physical possession of the disputed area,” her inactivity on that portion of her land could not “be construed to be acquiescence.” Carter II, 925 P.2d at 962. The supreme court did not address our analysis of the other three elements of boundary by acquiescence, including our conclusion that the occupation requirement had been satisfied despite the neighbor's inactivity. Id. And because the absence of “any one of the four elements is fatal” to a boundary by acquiescence claim, Goodman v. Wilkinson, 629 P.2d 447, 448 (Utah 1981), we cannot construe the supreme court's silence as tacit approval of any conclusion in our own decision that was unnecessary to the supreme court's ultimate resolution of the case. Thus, Carter I and Carter II do not resolve Anderson's contention that both owners must actively occupy their land up to a boundary.

¶ 11 Other than the Carter cases, the parties have not identified any Utah case law that directly addresses the question presented here. But we believe for three reasons that Utah law does not require active occupation by both owners to establish a boundary by acquiescence. First, in every Utah case we have examined where the parties' central dispute was the occupancy requirement, courts have focused exclusively on the use of the disputed property by the claiming party. Second, to the extent the opposing owner's land use has been discussed in the case law, it seems to have been analyzed as evidence of mutual acquiescence, not occupancy. Finally, focusing the occupancy analysis on the claiming party's land use is consistent with the policy considerations underlying the boundary by acquiescence doctrine.

¶ 12 In cases where the occupation element has been at issue, Utah courts have largely ignored the opposing landowner's use of his own property abutting the disputed boundary line. Thus, the supreme court has held that the occupation element is satisfied when “a particular occupation up to a visible line would place a reasonable party on notice that the given line was being treated as a boundary between the properties.” Bahr v. Imus, 2011 UT 19, ¶ 36, 250 P.3d 56 (internal quotation marks omitted). And our cases have deemed uses like farming, raising livestock, irrigation, or residence, see id.—uses “normal and appropriate for the character and...

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1 cases
  • Anderson v. Fautin
    • United States
    • Utah Supreme Court
    • May 31, 2016
    ...used their land by raising goats and/or placing pens and horses on the property.”2 Anderson v. Fautin , 2014 UT App 151, ¶ 22, 330 P.3d 108.3 Mr. Anderson did not appeal the district court's conclusion that the mutual acquiescence element of our boundary by acquiescence rule was met. The di......
1 books & journal articles
  • Article
    • United States
    • Utah State Bar Utah Bar Journal No. 27-6, December 2014
    • Invalid date
    ...2002 UT 33, ¶ 19,44 P3d 781. Even silence and inaction may be evidence of acquiescence. See Anderson v. Fautin, 2014 UT App 151, ¶ 21, 330 P3d 108,114. Any person familiar with the situation could offer relevant testimony concerning whether the property owners considered a particular line a......

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