Ekberg v. Bates
| Decision Date | 19 December 1951 |
| Docket Number | No. 7509,7509 |
| Parties | EKBERG et ux. v. BATES et ux. |
| Court | Utah Supreme Court |
Ivins, Roe, Kirby & Stark and Edwin A. Adamson, all of Salt Lake City, Utah, for appellants.
Hanni & Boyle and R. A. McBroom, all of Salt Lake City, for respondents.
This case involves a boundary line dispute. Oscar F. Ekberg and his wife, who are the owners of some real property facing Harvard Avenue between 3rd and 4th East Streets in Salt Lake City, Utah, and whose south line adjoins the north line of certain real property owned by Von D. Bates and his wife whose property faces Hampton Avenue, brought this suit to quiet title to about 4 1/2 feet of land embraced within a fence line on the Bates property. This 4 1/2 feet according to the record title apparently belongs to the Ekbergs. The Bates claim that a fence which runs in an easterly and westerly direction and located on the southern edge of the Ekberg property is the boundary line between the two properties which has been agreed upon and acquiesced in by the parties and their predecessors in interest for more than fifty years. The lower court found in favor of the Bates and the Ekbergs appeal.
But one question is presented: Does the evidence sustain the court's findings that the true boundary line between appellants' and respondents' property was uncertain or in dispute and that the picket fence which had been there for over 50 years and which had been replaced in 1927 by a solid board fence by both appellants' and respondents' immediate predecessor's in interest had been acquiesced in as the boundary line between the properties?
There is no dispute as to the facts. Appellants introduced their abstract of title to show record ownership of the claimed ground and rested, whereupon respondents introduced their evidence on their claim that the fence between the properties represented the true boundary line by acquiescence. This evidence consisted of a sidewalk extension plat based upon a sidewalk extension survey made in 1909, which plat though not made for the purpose of determining property lines, shows the property fence lines then existing which lines were determined by some other means. This plat shows that at that time the fence north of appellants' north boundary line was about 115 feet from the fence now claimed as the boundary line by respondents between their properties and that respondents' south boundary was five feet north of its present location as determined by the Atlas plat of 1912 which is the official plat showing property lines. The distance between the claimed boundary fence and the south property line of respondents as shown by the sidewalk plat is about 115 feet. Appellants and respondents deeds each call for about 115 feet in a northerly and southerly direction.
The record discloses that where the present fence which is claimed as the boundary line now stands there had been a picket fence which had been built before 1894. At that time the land now belonging to appellants and respondents all belonged to one owner. It does not appear that any surveys were made by any of the parties to this suit prior to the bringing of this action. As early as about 1920 or 1921, Oscar F. Ekberg, who is one of the appellants herein and whose father at that time owned the property he now owns, had an argument with a neighbor in which he told the neighbor that they were going to make this neighbor move the fence back because it was encroaching on their land. Ekberg, Sr., upon hearing this ordered his son to keep quiet. In 1927 Ekberg, Sr., helped respondents' predecessor in interest replace the old picket fence with a stouter high board fence which is now there and which was placed on exactly the same line on which the old fence had been. Respondents' predecessor in interest who had built this fence testified that he had considered the fence the boundary line between the properties and had built the stronger, higher fence to keep out the dogs and chickens. Appellant, Ekberg, Jr., both before and after he had acquired the title to his land had always protested that he considered the fence was on their property.
In Brown v. Milliner, Utah, 232 P.2d 202, 207, which is the latest expression of this court in a case involving a boundary line dispute, many of the cases decided by this court on that question are reviewed and we reaffirmed the doctrine that the owners of adjoining tracts whose true boundary lines are unknown, in dispute or uncertain may by parol agreement establish boundary lines which are binding on themselves and their successors in interest but concluded that it did not apply to the facts of that case. We also said therein: '* * * that in the absence of evidence that the owners of adjoining property or their predecessors in interest ever expressly agreed as to the location of the boundary between them, if they have occupied their respective premises up to an open boundary line visibly marked by monuments, fences or buildings for a long period of time and mutually recognized it as the dividing line between them, the law will imply an agreement fixing the boundary as located, if it can do so consistently with the facts appearing, and will not permit the parties nor their grantees to depart from such line. * * *' This is so because the doctrine of boundary by acquiescence rests on sound public policy of avoiding trouble and litigation over boundaries.
In the instant case, the evidence is undisputed that the original picket fence was built by a man who owned both appellants' and respondents' tracts of land at that time and therefore it is apparent it was not erected to mark a boundary line. For the portion of that time during which both tracts were owned by the same person, there could be no boundary by acquiescence. However, the court made another finding in which it found that when the board fence was erected in 1927 the true boundary line was still uncertain and in dispute and that this fence was erected as a boundary fence...
To continue reading
Request your trial
-
Halladay v. Cluff
...which "a boundary line may be 'uncertain' or 'in dispute' even though it is capable of being readily ascertained." Ekberg v. Bates, 121 Utah 123, 127, 239 P.2d 205, 207 (1951), quoting Willie v. Local Realty Co., 110 Utah 523, 531, 175 P.2d 718, 723 (1946). Uncertainty or dispute was much e......
-
Campbell v. Weisbrod
...648; Crook v. Leinenweaver, 100 Cal.App.2d 790, 224 P.2d 891; Carr v. Schomberg, 104 Cal.App.2d 850, 232 P.2d 597; Ekberg v. Bates, Utah, 239 P.2d 205; 69 A.L.R. note 1430, 113 A.L.R. note 421; 11 C.J.S., Boundaries, § 69b, page 644. The burden was on plaintiffs to establish their title to ......
-
Beneficial Life Ins. Co. v. Wakamatsu
...to defeat plaintiffs' case. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463; Hogan v. Blakney, 73 Idaho 274, 251 P.2d 209; Ekberg v. Bates, Utah, 239 P.2d 205. From the long existence and recognition of the original fence as the boundary, and the want of any evidence as to the manner or circums......
-
Hummel v. Young
...themselves and their grantees. Such express parol agreements were upheld in Rydalch v. Anderson, 37 Utah 99, 107 P. 25, and in Ekberg v. Bates, Utah, 239 P.2d 205. We further pointed out in Brown v. Milliner, supra, that in the absence of evidence that the owners of adjoining property or th......