Halladay v. Cluff, 18032

CourtSupreme Court of Utah
Citation685 P.2d 500
Docket NumberNo. 18032,18032
PartiesMack HALLADAY and Merle Halladay, Plaintiffs and Appellants, v. Madge CLUFF, Perry K. Bigelow and Norma G. Bigelow, Defendants and Respondents.
Decision Date01 May 1984

Brent D. Young, Provo, for plaintiffs and appellants.

M. Dayle Jeffs, Provo, for Cluff.

S. Rex Lewis, Provo, for Bigelow.

OAKS, Justice:

This is an appeal from a judgment relying on boundary by acquiescence to quiet title to a 52.5- by 118-foot parcel of real property in the city of Provo. The issues are whether a showing of uncertainty or dispute on the location of a boundary line is necessary to the application of boundary by acquiescence, and, if so, what is meant by "uncertainty" and who has the burden of proving it.

The property in issue is located in Provo City and is shown as parcel A-B-C-D on the accompanying map. From 1930 to the present, there has been a fence along lines E-A-B-F. It extends approximately 52 feet behind the rear property lines (C-D) of lots 1 and 2. This extension apparently resulted from an assumption that the 231-foot depth of these lots was measured from the edge of the street instead of from the points across 100 South Street shown on the legal descriptions.

The fence was clearly visible when the Bigelows purchased lot 1 in 1947 and when Cluff acquired lot 2 in 1948. The Halladays acquired lot 3, which contains most of the disputed parcel, in 1958. (They purchased lot 5 in 1950 and lot 4 in 1961.)

When the Bigelows and Cluff purchased lots 1 and 2, they assumed their properties extended to the back fence at line A-B. Acting accordingly, they cultivated gardens and built and maintained several chicken coops on their respective portions of parcel A-B-C-D. Bigelows had a survey made in 1956 that placed their rear boundary near line C-D, but they and Cluff apparently believed the survey to be erroneous. In During the period of their adjoining property ownership, the Halladays maintained that Bigelows' and Cluff's true boundaries were at line C- -D. Mr. Halladay informed Mr. Bigelow of this fact on one occasion in the 1950s and told him not to use the disputed parcel on several occasions in the 1970s. Halladays had no discussions with Cluff regarding the property line until shortly before this litigation commenced. Halladays made very little use of lot 3.

1975, Cluff obtained a plat that placed her rear boundary at line C-D.


In 1979, the Halladays commenced this suit to quiet title to parcel A-B-C-D. The Bigelows and Cluff counterclaimed, and the district court sustained their ownership of this parcel under the doctrine of boundary by acquiescence. On appeal, the Halladays seek to overturn that decision on the basis that boundary by acquiescence cannot be applied where there was no dispute or uncertainty concerning the location of the boundary. We agree and reverse with directions to quiet title in the Halladays, the record owners.


The doctrine of boundary by acquiescence has been the source of considerable confusion and controversy among judges, lawyers, and landowners in this state. King v. Fronk, 14 Utah 2d 135, 139, 378 P.2d 893, 895 (1963); Note, Boundary by Acquiescence, 3 Utah L.Rev. 504, 504 (1953). See generally Note, Boundaries by Agreement and Acquiescence in Utah, 1975 Utah L.Rev. 221. One of the primary areas of confusion is the requirement of the "presence or absence of dispute and/or uncertainty as to boundary." King v. Fronk, 14 Utah 2d at 139, 378 P.2d at 895.

Much of the confusion has resulted from the intermingling of rules governing boundary by acquiescence and boundary by parol agreement. Annot., 7 A.L.R. 4th 53, 59 (1981). Both of these doctrines identify circumstances in which landowners can establish boundary lines without a written agreement. Originally, the two were easily distinguishable because boundary by parol agreement required an express parol agreement with respect to a boundary but no period of acquiescence, while boundary by acquiescence required a lengthy period of acquiescence but no express parol agreement. Hummel v. Young, 1 Utah 2d 237, 239-40, 265 P.2d 410, 411 (1953); Brown v. Milliner, 120 Utah 16, 25, 232 P.2d 202, 207 (1951); Note, 1975 Utah L.Rev., supra, at 224. 1

With time, the distinctions between boundary by agreement and boundary by acquiescence became blurred. The requirement of an express parol agreement began to be articulated among the elements of boundary by acquiescence, although this Court said that "the law will imply an agreement fixing the boundary as located, if it can do so consistently with the facts appearing ...." Hummel v. Young, 1 Utah 2d at 240, 265 P.2d at 411. Similarly, the requirement of a long period of acquiescence was applied to boundary by agreement. Hobson v. Panguitch Lake Corp., Utah, 530 P.2d 792, 794 (1975); Blanchard v. Smith, 123 Utah 119, 121, 255 P.2d 729, 730 (1953). In various opinions, the Court even referred to boundary by agreement and boundary by acquiescence as if they had merged into one. See, e.g., Hobson v. Panguitch Lake Corp., 530 P.2d at 794 (reference to "the doctrine of boundary by acquiescence or agreement"); Carter v. Lindner, 23 Utah 2d 204, 460 P.2d 830 (1969) (reference to "boundary line by acquiescence under an oral agreement"); Note, 1975 Utah L.Rev., supra, at 222-23.

The confusion stemming from the intermingling of boundary by agreement and boundary by acquiescence has carried over to the subject of uncertainty or dispute over the boundary. Originally, this was mentioned as a requirement only in connection with boundary by agreement. Rydalch v. Anderson, 37 Utah 99, 109, 107 P. 25, 29 (1910). In that context, uncertainty or dispute over the boundary would precede and provide the motivation for the oral agreement. In 1928, this Court began to refer to uncertainty or dispute as a matter to be considered in boundary by acquiescence. Tripp v. Bagley, 74 Utah 57, 66-72, 276 P. 912, 916-18 (1928). Thereafter, the opinions of this Court frequently referred to a showing of uncertainty or dispute as an essential ingredient in the application of the doctrine of boundary by acquiescence. Madsen v. Clegg, Utah, 639 P.2d 726, 728-29 (1981); Leon v. Dansie, Utah, 639 P.2d 730, 731 (1981); Wright v. Clissold, Utah, 521 P.2d 1224, 1226 (1974); Universal Investment Corp. v. Kingsbury, 26 Utah 2d 35, 37-38, 484 P.2d 173, 174-75 (1971); Glenn v. Whitney, 116 The difficult issues in respect to uncertainty or dispute as an ingredient in boundary by acquiescence concern the meaning of these terms and who has the burden of proof. As demonstrated hereafter, our opinions have not given consistent answers to these questions. The contest is typically between interests that are both worthy--the desire to confirm boundaries that have apparently been recognized on the ground over a long period of time and the desire to enhance reliance on the property dimensions shown in the county records. The law clearly gives precedence to the record title, with boundary by acquiescence being an exception, but the conditions of that exception have not been settled with clarity or adhered to with consistency, in part because of the bewildering variety of factual circumstances in which the question arises.

Utah 267, 272-73, 209 P.2d 257, 260 (1949); Home Owners' Loan Corp. v. Dudley, 105 Utah 208, 219, 141 P.2d 160, 166 (1943); Peterson v. Johnson, 84 Utah 89, 93, 34 P.2d 697, 698-99 (1934). Although there are admittedly some other opinions throughout this period that make no mention of a showing of uncertainty or dispute, 2 we have concluded from the more recent cases and from the clear weight of authority that the relevance of this ingredient is settled in our law. See generally Annot., 69 A.L.R. 1430, 1501-04 (1930), supplemented in 113 A.L.R. 421, 436 (1938); 12 Am.Jur.2d Boundaries §§ 78-79, 83, 88 (1964).

In general, when survey information is reasonably available (such as when reliable survey control points are accessible to the land and survey costs are not disproportionate to the value of the land) so that it is reasonable to expect the parties to locate their boundary on the ground by surveys, the courts should be less willing to apply the doctrine of boundary by acquiescence. This reasonable availability of survey information obviously varies from place to place and from time to time. However, it can be said in general that survey information is more available and its cost is less likely to be disproportionate in relation to the value of the land in city and platted areas than in rural or wilderness areas. It can also be said in general that technological advances in survey techniques (as well as in the accuracy and accessibility of record title information) is tipping the scales toward greater reliance on record title information and lesser reliance on boundary by acquiescence. 3 The law should conform to those realities.


In some earlier cases, uncertainty or dispute had to be traceable to an objectively determinable ambiguity in a deed or survey, so that the true location of the boundary could not be readily ascertained. It was not established by proving that neither adjoining landowner knew the exact location of the boundary, because "lack of knowledge as to the location of the true boundary is not synonymous with uncertainty." Glenn v. Whitney, 116 Utah at 273, 209 P.2d at 260; Note, 1975 Utah L.Rev., supra, at 231-32. However, later cases rejected this objective measurement in favor of a subjective test in 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...

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