Hobson v. Panguitch Lake Corp.

• Decision Date: 03 January 1975
• Docket Number: No. 13615,13615
• Citation: 530 P.2d 792
• Parties: Fred N. HOBSON et ux., Plaintiffs and Respondents, v. PANGUITCH LAKE CORPORATION, a Utah Corporation, and Oliver LeFevre, Defendants, Third-Party Plaintiffs and Appellant, v. Derral CHRISTENSEN et ux., et al., Third-Party Defendants, Fourth-Party Plaintiffs and Respondents, v. Della D. MARSDEN et al., Fourth-Party Defendants and Respondents.
• Court: Utah Supreme Court

Page 792

530 P.2d 792

Fred N. HOBSON et ux., Plaintiffs and Respondents, v. PANGUITCH LAKE CORPORATION, a Utah Corporation, and Oliver

LeFevre, Defendants, Third-Party Plaintiffs and Appellant, v. Derral CHRISTENSEN et ux., et al., Third-Party Defendants, Fourth-Party Plaintiffs and Respondents, v. Della D. MARSDEN et al., Fourth-Party Defendants and Respondents.

No. 13615.

Supreme Court of Utah.

Jan. 3, 1975.

J. Anthony Eyre of Kipp & Christian, Salt Lake City, for Panguitch lake corp.

Ken Chamberlain of Olsen & Chamberlain, Richfield, for Hobson.

Thorpe Waddingham, Delta, for Christensen.

Paul M. Hansen, Ogden, for Marsden.

CROCKETT, Justice:

Under a claim that a boundary was established by an oral agreement according to an existing fence line plaintiffs Fred N. and Mary L. Hobson assert ownership of a strip of mountain land in Garfield County, overlapping a tract as described in conveyances to the defendant Panguitch Lake Corporation. The diagram below shows the properties with the disputed strip in cross-hatching.

Section 31, Township 35 South, Range 7 West

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Prior to 1957 the 40-acre tracts (quarter quarter sections) 1, 2 and 3 were owned by William Marsden and Della D. Marsden. On November 1, 1957, William Marsden by warranty deed conveyed tract 3, which includes the disputed parcel, to his wife Della, who is also named as a party defendant. A year later, on September 2, 1958, Mrs. Marsden sold tract 1 to the plaintiffs Hobsons and conveyed by warranty deed which described it as the Northeast Quarter of the Southwest Quarter of Section 31, etc.

In August, 1958, prior to the conveyance just described, Fred Hobson had met with William Marsden, who, by use of a handheld compass, purported to locate the west boundary line of tract 1; and stakes were driven along the line as so designated. A fence was constructed by Hobson along that line in 1958 (which later proved to be off-direction as shown in the diagram). ¹ Six years later, in 1964, Mrs. Marsden conveyed the 40 acres (quarter quarter section) to the west of Hobsons, designated on the diagram as tract 3, to other parties, Derral Christensen, et al., who a year later, on September 15, 1965, conveyed to defendant Panguitch Lake Corporation. Two and a half years later the defendant had a survey made and thereafter removed the fence built by Hobson. Failure of discussions to produce an agreement resulted in this lawsuit.

Plaintiffs argue that on the basis of the conversations between Mr. Hobson and plaintiffs' predecessor, William Marsden, and the construction of the fence in conformity with their marking it with stakes, combined with the existence of the fence for approximately ten years, constituted a boundary by agreement. In support of this contention they have quoted from the case of Brown v. Milliner ² this language:

A review of the Utah cases involving boundary disputes reveals that it has long been recognized in this state that when the location of the true boundary between two adjoining tracts of land is unknown, uncertain or in dispute, the owners thereof may, by parol agreement, establish the boundary line and thereby irrevocably bind themselves and their grantees. (Emphasis added.)

The difficulty with the plaintiffs' argument is that it ignores the additional and critical fact in the Brown case: that there had been acquiescence in the boundary for a period of more than sixty years.

It should be clearly understood that our case law does not support, and that we do not agree with the proposition that a landowner can claim boundary solely on the basis of an oral agreement. ³ From a reading of the cases it will be seen that it requires the acceptance, or the giving of consent or approval, by words or conduct, over som substantial period of time and when certain requisites are met. ⁴ This is true because it must be appreciated that recognition of such boundaries does have the effect of transferring ownership of disputed strips of property without compliance with the statute of frauds; ⁵ and it may be at variance with recorded conveyances.

The very reason for being of the doctrine of boundary by acquiescence or agreement is that in the interest of preserving the peace and good order of society the quietly resting bones of the past, which no one seems to have been troubled or complained about for a long period of years, should not be unearthed for the purpose of stirring up controversy, but should be left in their repose. Arising out of this reason for being, an indispensable requirement for application of the doctrine is the existence of the boundary for a long period of time, which the actual decisions in all of our cases on the subject affirm. ⁶

The question as to just what length of time is required has been discussed a number of times. Particularly in the case of King v. Fronk. ⁷ Justice Henriod, speaking for the court, pointed out that the statutory period of seven years for establishing ownership by adverse possession ⁸ mandates the common law requisites of open, notorious, continuous and adverse possession, and also requires that the property be fenced or inclosed and that taxes be paid...