Flying Elk Inv. LLC v. Cornwall

• Decision Date: 26 April 2010
• Docket Number: No. 35853.,35853.
• Citation: 232 P.3d 330,149 Idaho 9
• Parties: FLYING ELK INVESTMENT, LLC, Plaintiff/Appellant,v.David F. CORNWALL, Defendant/Respondent.
• Court: Idaho Supreme Court

149 Idaho 9

232 P.3d 330

FLYING ELK INVESTMENT, LLC, Plaintiff/Appellant,v.David F. CORNWALL, Defendant/Respondent.

No. 35853.

Supreme Court of Idaho, Boise, February 2010 Term.

April 26, 2010.

COPYRIGHT MATERIAL OMITTED

F. Randall Kline, American Falls, for Appellant.

Jones Chartered, Pocatello, for Respondents. Thomas J. Holmes argued.

W. JONES, Justice.

I. Nature of the Case

This case is a land dispute over a nineteen-acre sliver of land between properties belonging to Flying Elk Investment and David Cornwall. Flying Elk had its lot surveyed in 2003, revealing that a fence dividing the two lots cuts into its property nearly 300 feet in some places. It now seeks to quiet title and obtain possession of the disputed land. Cornwall contends that because the fence has been present for roughly seventy years, the disputed land is now legally his under the theory of boundary by agreement.

II. Factual and Procedural Background

At issue here is the legal boundary between two parcels of land in Bannock County, Idaho. David Cornwall acquired his lot from Joseph and Alta Whitworth in 1972. Robert Bohus purchased his lot from Pat Whitworth in 1994 and then conveyed it to Flying Elk Investments, which he controls. Cornwall's east and south sides border Flying Elk such that the Flying Elk lot forms a backwards “L” around the Cornwall lot. Although the legal description of the borders forms two straight lines, a crooked wire fence divides the parcels running roughly sixty feet south of Cornwall's true southern border, intruding into Flying Elk's property, then turning north and running haphazardly to Flying Elk's northern boundary. The fence runs nearly three hundred feet into Flying Elk's true western edge. This leaves almost nineteen acres of Flying Elk's deeded land on Cornwall's side of the fence.

In the early 1940s, Cornwall's property was owned by Joseph and Alta Whitworth while Flying Elk's property was owned by Harold and Thelma Whitworth. Joseph and Harold were brothers and both are now deceased. Corwin “Pat” Whitworth was Harold's son and owned Flying Elk's current property along with his wife Ruth from 1979 until he conveyed it to Bohus in 1994. Pat worked with his father on the farm as a child and recalls that an old fence already stood on the property before his family bought it. He helped his father move and rebuild parts of the fence in the 1940s and since then has periodically repaired, replaced, and relocated portions of the fence to facilitate maintenance. His father and uncle did not want to pay for a survey to identify the true boundary, so Pat believes they never intended for the fence to reflect the true boundary but kept it where it was because it was in a convenient location to restrain livestock. Pat informed Bohus that the fence was not the true boundary when Bohus purchased the property.

There is no evidence of an express agreement between the original landowners, nor is there evidence of an agreement between Joseph and Harold or any of the other successor landowners, to make the fence the property boundary. Over the years, however, the occupants of each property farmed and grazed animals up to the fence line. When Cornwall bought his land in 1972, he believed the fence was the property line so he continued using the land up to the fence and added a pond to the disputed area. He and Pat shared responsibility for maintaining the fence.

Although Bohus acquired his property from Pat in 1994, he did not have the land surveyed until 2003. After the survey revealed the fence intruded onto his deeded property, Bohus requested permission from Cornwall to move the fence, but was rebuffed. Flying Elk then sued to quiet title, claiming the fence did not constitute a boundary by agreement and that, under § I.C. 35-110, Cornwall was obligated to relocate the fence to the true property line. Cornwall moved for summary judgment, requesting that the district court declare the fence to be the legal boundary. The parties stipulated that they had developed all evidence relevant to the case in their affidavits and depositions. The district court granted summary judgment to Cornwall, reasoning that such a long acquiescence in the location of the fence showed a boundary by agreement, and rejected Flying Elk's contention that I.C. § 35-110 compelled Cornwall to move the fence.¹

III. Issues on Appeal

1. Whether the district court correctly found that the fence constitutes a boundary by agreement.

2. Whether the district court correctly held that I.C. § 35-110 does not require Cornwall to relocate the fence to the true boundary line.

3. Whether Cornwall is entitled to attorney's fees on appeal.

IV. Standard of Review

When reviewing a grant of summary judgment, this Court applies the same standard the district court used when it initially ruled on the motion. Nw. Bec-Corp v. Home Living Serv., 136 Idaho 835, 838, 41 P.3d 263, 266 (2002). Summary judgment is proper “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 56(c). The moving party carries the burden of proving that there is no genuine issue of material fact. Losee v. Idaho Co., 148 Idaho 219, 222, 220 P.3d 575, 578 (2009).

Neither party demanded a jury trial. “When an action will be tried before the court without a jury, the trial court as the trier of fact is entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences.” Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 360-61, 93 P.3d 685, 691-92 (2004). This Court freely reviews the entire record to ascertain if either party was entitled to judgment as a matter of law and determines whether the record reasonably supports the inferences drawn by the district judge. P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 237, 159 P.3d 870, 874 (2007).

V. Analysis

A. The District Court Did Not Err in Finding that the Fence Constituted a Boundary by Agreement

“Boundary by agreement or acquiescence has two elements: (1) there must be an uncertain or disputed boundary and (2) a subsequent agreement fixing the boundary.” Luce v. Marble, 142 Idaho 264, 271, 127 P.3d 167, 174 (2005). Ignorance of the true boundary creates the uncertainty necessary to satisfy the first element. Morrissey v. Haley, 124 Idaho 870, 873, 865 P.2d 961, 964 (1993). The agreement may be either express or implied by the landowners' conduct. Teton Peaks Investment Co. v. Ohme, 146 Idaho 394, 397, 195 P.3d 1207, 1210 (2008). As the district court observed, Flying Elk does not contest the fact that the true boundary was unknown at the time the fence was erected. Additionally, both parties agree that there was never an express agreement that the fence was the true boundary. The dispositive issue, therefore, is whether the district court could imply an agreement from the parties' conduct.

Because the party holding title to property is presumed to be the legal owner, someone claiming ownership of that property must prove his or her claim by “clear, satisfactory, and convincing evidence.” Anderson v. Rex Hayes Family Trust, 145 Idaho 741, 744, 185 P.3d 253, 256 (2008). “Though our cases often use the phrase ‘boundary by acquiescence’ interchangeably with ‘boundary by agreement,’ ... the latter phrase more accurately describes the doctrine.” Wells v. Williamson, 118 Idaho 37, 40, 794 P.2d 626, 629 (1990). Where the boundary is uncertain or disputed, coterminous owners “may orally agree upon a boundary line” and such an agreement can become binding on successors if the parties to the oral agreement take possession under it. Downing v. Boehringer, 82 Idaho 52, 56, 349 P.2d 306, 308 (1960). Since there must be an agreement, acquiescence “is merely regarded as competent evidence of the agreement,” and alone is not enough to establish a boundary by agreement. Griffel v. Reynolds, 136 Idaho 397, 400, 34 P.3d 1080, 1083 (2001) (citing Paurley v. Harris, 75 Idaho 112, 117, 268 P.2d 351, 353 (1954)). Allowing an adjoining landowner to improve the disputed land is evidence of an agreement. Stafford v. Weaver, 136 Idaho 223, 225, 31 P.3d 245, 247 (2001).

In evaluating the existence of an implied agreement, courts are guided by two related presumptions:

First, when a fence line has been erected, and then coterminous landowners have treated that fence line as fixing the boundary between their properties for such a length of time that neither ought to be allowed to deny the correctness of its location the law presumes an agreement fixing that fence line as the boundary.... Second, coupled with the long existence and recognition of a fence as a boundary, the want of any evidence as to the manner or circumstances of its original location, the law presumes that it was originally located as a boundary by agreement because of uncertainty or dispute as to the true line.

Luce, 142 Idaho at 271-72, 127 P.3d at 174-75 (citations and quotations omitted). These presumptions can be rebutted by contrary evidence. See

Griffin v. Anderson, 144 Idaho 376, 378-79, 162 P.3d 755, 757-58 (2007) (finding that direct contradictory evidence disproved a boundary by agreement).

Here the court correctly presumed that there is a boundary by agreement. This Court has repeatedly found a boundary by agreement where a fence is treated as the property line for a number of years, there is no information about why the fence was built, and no evidence to disprove that the fence was intended to be a boundary. E.g. Neider v. Shaw, 138 Idaho 503, 507, 65 P.3d 525, 529 (2003); Johnson v. Newport, 131 Idaho 521, 523, 960 P.2d 742, 744 (1998). First, the district court could reasonably conclude that the fence has long been recognized as a boundary between the properties. The fence...