Essential Botanical Farms, LC v. Kay

• Decision Date: 15 November 2011
• Docket Number: No. 20090922.,20090922.
• Citation: 695 Utah Adv. Rep. 27,2011 UT 71,270 P.3d 430
• Parties: ESSENTIAL BOTANICAL FARMS, LC, Plaintiff and Appellee, v. Steven L. KAY, Defendant and Appellant.
• Court: Utah Supreme Court

2011 UT 71

270 P.3d 430

695 Utah Adv. Rep. 27

ESSENTIAL BOTANICAL FARMS, LC, Plaintiff and Appellee,

v.Steven L. KAY, Defendant and Appellant.

No. 20090922.

Supreme Court of Utah.

Nov. 15, 2011.

Robert L. Janicki, H. Burt Ringwood, Lance H. Locke, Salt Lake City, for plaintiff.

Sherman C. Young, Dallas B. Young, Provo, for defendant.

Justice NEHRING, opinion of the Court:

INTRODUCTION

¶ 1 This appeal is rooted in a dispute over a parcel of land situated between adjoining landowners, Steven Kay and Essential Botanical Farms, LC (EBF). Mr. Kay is the record owner of the property, but EBF and its predecessors-in-interest have occupied the property for nearly fifty years. The district court quieted title to the property in favor of EBF on cross-motions for summary judgment after finding that the parties' predecessors-in-interest mutually acquiesced to a boundary marked by an old barbed wire fence.

¶ 2 Mr. Kay contends that the district court erred. First, he argues that the district court incorrectly concluded that the standard of proof in boundary by acquiescence cases is a preponderance of the evidence. Second, Mr. Kay contends that the district court erred when it found that the parties' predecessors had mutually acquiesced to the fence as the boundary because there was no direct evidence that his predecessors-in-interest intended to recognize the fence as the boundary.

¶ 3 We hold that the standard of proof in boundary by acquiescence cases is clear and convincing evidence. Additionally, we hold that acquiescence does not require any degree of subjective intent. Applying these standards, we conclude that Mr. Kay's predecessors acquiesced to the fence as the boundary. We therefore affirm the district court's entry of summary judgment quieting title in favor of EBF.

BACKGROUND

¶ 4 Beginning in 1955, the Andrews family and the Fowkes family owned adjoining properties in Juab County, Utah. At that time, a barbed wire fence that had existed from time immemorial separated the two properties. For nearly forty years, the Andrews and Fowkes families respected the weathered fence as the boundary between the two properties: each family worked the land up to their respective fence lines, repaired the fence on occasion, and never occupied land on the other side of the fence.

¶ 5 The Andrews family sold their property to EBF in 1998. The Fowkes family sold their property to Mr. Kay in 2004. As of 2004, the barbed wire fence continued to separate the properties. Mr. Kay discovered, however, that the record boundary line extended past the fence and onto land occupied by EBF. Shortly thereafter, Mr. Kay removed portions of the old fence and constructed a new fence on the record boundary line which created a triangle-shaped parcel of land approximately six acres in size situated between the old fence line and the new fence. EBF sued Mr. Kay for trespass and to quiet title to the disputed six-acre parcel of land. EBF claimed that its predecessors-in-interest (i.e., the Andrews family) had obtained the parcel through boundary by acquiescence. Both parties filed cross-motions for summary judgment.

¶ 6 Boundary by acquiescence has 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 land owners.” ¹ EBF presented the following evidence in support of its boundary by acquiescence claim.²

¶ 7 On EBF's side of the fence, three prior owners—Vernes Andrews, Oral Taylor,³ and Delos Andrews—all testified that they always believed the old fence was the boundary line. They also testified that they each worked the land from 1955, 1955, and 1971 respectively, until it was sold to EBF in 1998.

¶ 8 Members of the Andrews family were not alone in believing that the old fence was the boundary. Vernes and Delos testified that they encountered the Fowkes family at least once per week and that there was never a dispute about the fence as the boundary line. For instance, Vernes testified that when his cows wandered onto the Fowkes' property as marked by the fence, they said, “Your cows are on my property,” and not “You got to move your fence,” or anything else that would indicate that the fence was not the boundary line. Likewise, Delos testified that the Fowkes family never acted in a manner inconsistent with the fence being the boundary line.

¶ 9 EBF was unable to produce direct evidence of the Fowkes family's understanding of the fence as the boundary because all but one of the Fowkes landowners were deceased, and the surviving landowner had not participated in farming activities on the property. However, EBF did present testimony from the grandsons of one of the Fowkes landowners, Tom Fowkes and Dale Fowkes, both of whom worked the land for decades. Both Tom and Dale testified that they always understood the old fence to be the boundary. In particular, Tom testified that the fence was in existence when he was born in 1947, that he farmed the property from when he “was big enough” until sometime in the 1970s, that his family maintained the fence on occasion, and that he dealt with the Andrews family “as long as they were [there].” Similarly, Dale testified that the fence was in existence when he was born in 1949 and that he farmed the property from childhood until it was sold to Mr. Kay in 2004, the last ten years of which he leased the land from two other Fowkes landowners. Dale also testified that he had “quite a bit” of contact with the Andrews family but was unaware of any disputes about the status of the fence as the boundary line.

¶ 10 Before deciding whether the evidence established a boundary by acquiescence for the purposes of summary judgment, the district court first addressed the burden of proof required to establish such a claim. Mr. Kay sought a clear and convincing evidence standard; EBF advocated a preponderance of the evidence standard. The district court concluded that the elements of boundary by acquiescence must be proven by a preponderance of the evidence. It reasoned that Utah courts have historically applied the preponderance standard in boundary by acquiescence cases, that boundary by acquiescence is distinguishable from other contexts where the clear and convincing standard is required, and that the preponderance standard adequately protects the property interests at stake because boundary by acquiescence is already a restrictive doctrine.

¶ 11 Next, the district court considered whether the evidence supported EBF's boundary by acquiescence claim for the purposes of summary judgment. The court concluded that even “under the clear and convincing standard,” the Andrews and Fowkes families mutually acquiesced to the original fence as the boundary line between the properties. First, the district court reasoned that every witness who testified concerning the status of the fence said that “they believed the [o]riginal [f]ence marked the boundary between [the properties].” Although none of the witnesses specifically testified that the Fowkes landowners themselves believed the fence was the boundary, the district court inferred acquiescence from the testimony of Tom and Dale Fowkes. The court reasoned that it was permitted to infer such acquiescence because all the Fowkes landowners were deceased (except for one landowner who did not farm the property) and because Tom and Dale “assisted their father and grandfather—the grandfather being a fee-title holder—with the farm operations.” Second, the district court inferred mutual acquiescence from activities of the Andrews and Fowkes families. The court explained that for nearly fifty years the families farmed and grazed their respective properties up to the fence line, repaired the fence on occasion, and never disputed that the fence formed the boundary between the properties. The district court then granted EBF's motion for summary judgment and quieted title to the triangular six-acre parcel of land in favor of EBF. Mr. Kay now appeals. We have jurisdiction under Utah Code section 78A–3–102(3)(j).

STANDARD OF REVIEW

¶ 12 “Burden of proof questions typically present issues of law that an appellate court reviews for correctness.” ⁴ Similarly, “[w]e review a district court's decision to grant summary judgment for correctness, granting no deference to the district court's conclusions.” ⁵ “Our review is limited to determining whether the district court correctly applied the summary judgment standard in light of the undisputed material facts.” ⁶ “[W]hen reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” ⁷

ANALYSIS

¶ 13 Mr. Kay makes two arguments on appeal. First, he argues that the district court erred when it concluded that boundary by acquiescence claims may be proven by a preponderance of the evidence and not by clear and convincing evidence. Second, Mr. Kay argues that regardless of which standard applies, the district court erred when it concluded that Mr. Kay's predecessors-in-interest (i.e., the Fowkes landowners) acquiesced to the barbed wire fence as the boundary line. He reasons that, while the evidence showed occupation up to the fence, it did not demonstrate that the Fowkes landowners subjectively intended to recognize the fence as the boundary.

¶ 14 We hold that boundary by acquiescence must be proven by clear and convincing evidence. We also hold that acquiescence is determined by the parties' objective actions in relation to the boundary and not their mental state. Applying these standards, we conclude that Mr. Kay's predecessors acquiesced to the old barbed wire fence as the boundary between the properties. We therefore affirm the district court's entry of summary judgment quieting title to the disputed property in favor of EBF.

I. BOUNDARY BY ACQUIESCENCE CLAIMS MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE

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