Clair W. and Gladys Judd Family Ltd. Partnership v. Hutchings

• Decision Date: 20 August 1990
• Docket Number: No. 860100,860100
• Citation: 797 P.2d 1088
• Parties: CLAIR W. AND GLADYS JUDD FAMILY LIMITED PARTNERSHIP, Plaintiff and Appellant, v. Bernell L. HUTCHINGS, Mrs. Bernell Hutchings, Ronald J. Sherman, and Mrs. Ronald J. Sherman, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1088

797 P.2d 1088

CLAIR W. AND GLADYS JUDD FAMILY LIMITED PARTNERSHIP, Plaintiff and Appellant, v. Bernell L. HUTCHINGS, Mrs. Bernell Hutchings, Ronald J.

Sherman, and Mrs. Ronald J. Sherman, Defendants

and Appellees.

No. 860100.

Supreme Court of Utah.

Aug. 20, 1990.

Don R. Petersen, Danielle Eyer Davis, Provo, for plaintiff and appellant.

Michael J. Petro, Provo, for defendants and appellees.

HOWE, Associate Chief Justice:

Plaintiff appeals from a judgment determining the boundary between its property and defendants' property to be a long-standing fence line, based on the rule of boundary by acquiescence.

Plaintiff and defendants own adjoining tracts of land in Utah County, with plaintiff's tract lying immediately south of defendants' tract. The parties have stipulated that the legal descriptions of the two tracts overlap, as much as twenty-one feet at one point. Lying south of both deed lines is a fence line which the trial court found that the parties and their predecessors had acquiesced in for a long period of time as the boundary. Plaintiff commenced this action to quiet title to its tract as described by the legal description in its deed, to relocate the fence line, and to obtain damages. Defendants counterclaimed, seeking to quiet title on the existing fence line. The trial court found that the parties and their predecessors in interest had occupied their respective tracts of land up to the fence for at least twenty years and "very likely" for over forty years; that during that time they had acquiesced in and recognized the fence line as the boundary between them; and that neither party had ever attempted to occupy any land on the opposite side of the fence line.

Plaintiff contends that the evidence does not establish the necessary elements of boundary by acquiescence. Those elements have been enumerated in many prior decisions of this court. They are:

1. Occupation up to a visible line marked by monuments, fences, or buildings;

2. Mutual acquiescence in the line as a boundary;

3. For a long period of time;

4. By adjoining landowners.

See Brown v. Milliner, 120 Utah 16, 232 P.2d 202 (1951). In Halladay v. Cluff, 685 P.2d 500 (Utah 1984), this court added a fifth element, namely, evidence of dispute or uncertainty as to the true boundary line measured against an objective test. However, in the recent case of Staker v. Ainsworth, 785 P.2d 417, 424 (Utah 1990), Halladay v. Cluff was overruled insofar as it imposed that additional element. Inasmuch as the instant case was tried and this appeal filed prior to our decision in Staker v. Ainsworth, we consider the fifth element a requirement here.

The evidence supporting the trial court's determination that the adjoining owners had acquiesced in the fence line as the boundary may be briefly summarized as follows: Richard York testified that he purchased the property in about 1942, that the property was surveyed and a fence was erected on the survey line, and that the fence that was there at the time of trial (1985) was in the same place as the fence he had erected. He stated that he recognized his workmanship in the southeast corner post, the wire wrapped around it, and the braces supporting it. York sold the property in 1946 to Frank Rigtrup, who testified that the fence that was there at the time of trial was in the same place as it was when he purchased the property and when he sold it six years later, although the wire and some of the posts had been replaced.

The property was acquired in 1952 by Brigham Liechty. His son Victor J. Liechty testified that he was nineteen years old in 1952 and that the fence that was there at the time of trial was in the same place as it was in 1952. He further testified that some of the posts and wire had been replaced through the years but the location had remained the same. He saw the property on a regular basis until 1961 and, after that, visited it at least yearly until it was sold to defendant Hutchings in 1981. He stated that he had been on the property probably several hundred times between 1952 and 1981 and was certain that the fence had not been moved. During that time, he had never heard any talk or suggestion that the fence was not on the deed line.

Two men who worked on the property during the twenty-nine years that it was owned by Liechty also testified that the fence there at the time of trial was in the same place as the fence which had been there when they worked there. Raphel C. Palfreyman testified that in 1961, he began working for Brigham Liechty on the property, and four years later, commencing in 1965, he leased the property and farmed it himself. During that time, the fence was repaired and posts replaced, except for the two corner posts, which remained undisturbed up to the time of trial. He further stated that sometimes Dr. Clair Judd, a member of plaintiff partnership, assisted in the repairs, but not once did Judd then suggest or imply that the fence was not in the proper location. Palfreyman acknowledged that Dr. Judd had cemented an irrigation ditch which ran along the fence line, at which time the fence was removed to accommodate the construction, and the new fence which was erected ran between the two old corner posts, which were not disturbed.

The other witness who had worked on the property during Liechty's term of ownership was defendant Burnell L. Hutchings. He testified that he worked for Liechty in 1956, when Hutchings was eighteen years old, that the fence that was there at the time of trial was in the same place as it was in 1956, that the post at the southeast corner of the Hutchings' property at the time of trial was there in 1956, and that the fence ran west from that post the same as it did in 1956. He further testified that in 1984, plaintiff erected a new fence with pipe posts, but those posts were tied to the old cedar posts which had been there for years previously.

In summary, there was an abundance of testimony adduced from five different witnesses that the fence that was there when the dispute arose was in the same place as it had been since about 1942--a span of some forty years. These same witnesses testified that the respective owners of the adjoining tracts had acquiesced in the fence line as the boundary between their properties. While it is true that plaintiff produced evidence that there had not always been acquiescence in the fence line as the boundary and that the fence line was moved several feet on one or more occasions, the trial court was not required to believe and accept this evidence as against the evidence adduced by defendants. Rule 52(a), Utah Rules of Civil Procedure, forbids us from setting aside factual findings unless clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. We find nothing in the trial court's findings of fact which would suggest that they are erroneous, let alone "clearly erroneous." In Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985), we stated that we would not overturn a finding of fact without first marshaling all the evidence supporting the finding and then demonstrating that when viewed in the light most favorable to the trial court, the evidence is clearly insufficient to support that finding.

Plaintiff next contends that even though there may have been acquiescence in the fence line as a boundary, there was no objective uncertainty so as to satisfy that requirement as enunciated in Halladay v. Cluff. It argues that although the legal descriptions as contained in the deeds of the parties overlap, it is a question of law as to which deed has priority over the other. We reject this argument. In Halladay v. Cluff, 685 P.2d at 506, "conflicting terms in deeds, such as overlapping descriptions, Motzkus v. Carroll, 7 Utah 2d 237, 239, 322 P.2d 391, 393 (1958)," was given as an example of objectively measurable uncertainty. The trial court found objective uncertainty because of the overlap. This was not error.

Finally, plaintiff assails the trial court's refusal to admit into evidence statements allegedly made by Brigham Liechty during the time he was the owner of defendants' property to the effect that he did not think that the fence line was on the true boundary between the two properties. The trial court ruled that any such statements would be hearsay and not admissible unless plaintiff's counsel could cite to him a rule in the Utah Rules of Evidence which would allow admission of such statements. Counsel was unable to do so. Again, in this court, plaintiff urges admission of the statements but fails to cite any rule of evidence in support. Instead, plaintiff relies on Roach v. Dahl, 84 Utah 377, 385, 35 P.2d 993, 996 (1934), where this court made brief reference to an exception to the hearsay rule which would allow admission of hearsay evidence to prove the location of an ancient corner or boundary line. That principle appears to have been incorporated into our present Utah Rule of Evidence 803(20), which states that the following is not excluded by the hearsay rule:

(20) Reputation concerning boundaries or general history. Reputation in a community arising before the controversy, as to boundaries of or customs affecting lands in the community and reputation as to events of general history important to the community or State or nation in which located.

It is apparent that plaintiff's proffered testimony did not consist of reputation in the community as to a boundary. The statements were simply the subjective opinion of a former owner. Clearly, they did not qualify for admission, and the trial court did not err in its ruling. Rule 803(20) appears to be based on a principle recognized in Boardman v. Lessees of Reed & Ford, 31 U.S. (6 Pet.) 328, 341, 8 L.Ed. 415, 420-21 (1832), where Justice McLean, speaking for the Supreme Court of the United States, said: "Landmarks are frequently formed of perishable materials, which pass away with the...