RHN CORP. v. Veibell

Decision Date16 July 2004
Docket NumberNo. 20010548.,20010548.
Citation2004 UT 60,96 P.3d 935
PartiesRHN CORPORATION, a Utah corporation, Plaintiff and Appellant, v. J. Alton VEIBELL and Willow Creek Water Company, C.C., a Utah limited liability company, Defendants and Appellees. J. Alton Veibell and Grethe Veibell, Third-party Plaintiffs, Appellants, and Cross-Appellees, v. RHN Corporation, a Utah corporation; Leola J. Ericksen Family Limited Partnership, Clarence Richards, Lodees Richards, Charlotte Nelson, Terri Howard, and Gerald Howard, Third-party Defendants, Appellees, and Cross-Appellants.
CourtUtah Supreme Court

Russell A. Cline, Salt Lake City, for appellants.

Larry S. Jenkins, Salt Lake City, for appellees.

DURHAM, Chief Justice:


¶ 1 This case involves two separate boundary disputes between adjacent landowners in Box Elder County. The Veibell family and the Ericksen family have owned adjacent properties in the county since the early 1900s. The parties to this case are J. Alton Veibell (Alton Veibell or Veibell), the successor-in-interest to the Veibell property, and the Leola J. Ericksen Family Limited Partnership (the Partnership), the successor-in-interest to the Ericksen property. The parties have raised claims based on boundary by acquiescence and deed reformation.


¶ 2 The first plot in dispute is a small triangle of land located on the north side of the 111.5 rod mark in Section 23 of Box Elder County.1 The chain of title to this triangle and the surrounding property is as follows: Michael C. Ericksen acquired title to a large parcel of land in Section 23 of Box Elder County in 1901; in 1909, Michael conveyed the property north of the 111.5 rod mark (the Ericksen property) to Joseph Ericksen, who in turn deeded the property to his son and daughter-in-law, Durell and Leola J. Ericksen, on January 19, 1965; Durell Ericksen passed away in 1978, and his wife, Leola, transferred the property to the Partnership in 1987 before she passed away in 1990.

¶ 3 On November 7, 1938, Michael Ericksen conveyed the portion of the property south of the 111.5 rod mark (the Veibell property) to James Weibell,2 father of Alton Veibell. The 1938 deed contained the following property description:

Beginning at a point 111.5 rods South of the northwest corner of the Northeast Quarter of Section 23, Township 12 North, range 2 West of the Salt Lake Meridian, running thence South 208.5 rods; thence East 160 rods; thence North 208.5 rods; thence West 160 rods to the place of beginning, containing 108.5 acres.
Alton Veibell obtained legal title to this property in 1958. The four boundaries of the Veibell property are along straight lines with ninety-degree angles. The 111.5 rod mark, running from east to west, is the record boundary separating the Veibell property from the Ericksen property to the north.

¶ 4 Since before 1938, a diagonal fence (the diagonal fence) has run the width of the property along the boundary between the Ericksen and Veibell properties. The west end of the fence begins at a position south of the 111.5 rod mark on the Veibell property. The fence runs northeast, crosses the rod mark about half way down the property line, and continues onto the Ericksen property north of the 111.5 rod mark. For decades, the Ericksens and Veibells treated this fence, not the 111.5 rod mark, as the boundary between their respective properties.

¶ 5 The location of the diagonal fence and the record boundary line create two triangles of land that are in dispute. The Veibells are the record owners of the west triangle, but it is occupied by the Ericksens. The east triangle is owned by the Ericksens, but it is occupied by the Veibells.

¶ 6 The Ericksens have farmed up to the fence since the late 1930s. Durell Ericksen was not alive to testify at trial as to his belief concerning the boundary line. However his brother, Bryce Ericksen, who helped farm the family's land until the early 1960s, testified that he believed that the fence was the true boundary line.

¶ 7 James Weibell, Alton Veibell's father, farmed the Veibell property up to the fence from the 1920s until he passed away in 1951. His son, Alton, continued farming the land up to the fence until the time of trial. Alton Veibell testified that he believed the diagonal fence represented the true boundary line up until 1981, when he had his property surveyed. There is no indication in the record that either family ever objected to the fence as a boundary prior to the 1990s.

¶ 8 While Veibell testified that he did not discover the record boundary was not the fence line until 1981, there is some evidence that as early as 1979, he may have realized that the fence was not the record boundary. In 1979, Veibell sold a lot to his son on the north end of his property that was located precisely on the record boundary, not along the fence line. In 1981, however, Veibell inconsistently deeded a right-of-way across the east triangle, the property he did not own, to Gregory Collings.

¶ 9 In 1999, Alton Veibell filed an action to quiet title in the east triangle.


¶ 10 On April 10, 1967, Alton and Grethe Veibell conveyed by warranty deed (the 1967 deed) a portion of Section 23 south of the fence that ran along the 111.5 rod mark to J. Durell Ericksen and Leola J. Ericksen. The 1967 deed contained the following metes and bounds description of the conveyed property:

Part of the East-half of Section 23, Township 12 North, Range 2 West, SLM, described further as:
Beginning at a point in the N-S centerline of said Section 23, said point being South 2007.8 feet and West 2645.3 feet (South 111.5 rods and West 160 Rods by record) from the NE Corner of said Section 23; thence North 81 Section 23, thence West 927.7 feet along said South line of Section 23, to the N-S centerline of said Section 23; thence north 3348 feet (208.5 rods by record) to the point of beginning. Containing in all 75.8 acres, more or less.

¶ 11 The northern boundary of the conveyed property runs along a fence line that slants slightly to the northeast. The eastern boundary contains three slanted legs. The northernmost two legs run alongside Willow Creek, but the southernmost leg veers slightly west of the creek. The southern boundary runs due west along the south line of Section 23. The western boundary runs due north along the N-S centerline of Section 23. ¶ 12 The above metes and bounds description contains two errors that give rise to this dispute. First, the true distance from the southeast corner of the conveyed property to the N-S centerline is approximately 816.75 feet, not 927.7 feet as described in the 1967 deed. Due to this error, the property description does not close, and the southern boundary extends 110 feet onto property not owned by the Veibells at the time of the transfer. Second, the 1967 deed purports to convey "in all 75.8 acres, more or less," but in reality the conveyed property contains only 64.5 acres. Presumably, the error in calculating the acreage resulted from the mistaken call of the southern boundary.

¶ 13 Alton Veibell testified that he and Durell Ericksen negotiated the boundaries prior to the sale of the conveyed property. Regarding the proposed eastern boundary, Veibell testified that he placed four stakes to mark the three slanted legs of the boundary and that these stakes were originally all on the west side of Willow Creek, leaving the creek entirely on Veibell's property. Alton Veibell further testified that he and Durell Ericksen walked the proposed eastern line and that at Ericksen's request they moved the second stake from the north slightly eastward from its original position so that a small portion of Willow Creek lay on Ericksen's side of the boundary. Ericksen desired this accommodation because he wanted access to the water on the north end of the conveyed property. The parties agreed upon this placement of the eastern boundary. Alton Veibell testified that he and Durell Ericksen never discussed a specific number of acres to be conveyed. Rather, he stated, "We were just selling from this point to this point and this point to this point."

¶ 14 After agreeing upon the boundaries, Durell Ericksen hired Erwin Moser, a surveyor, to survey the property. The legal description of the conveyed property was taken from the metes and bounds description on the surveyor's certificate created by Moser. Jeff Hansen, a licensed surveyor, surveyed the property again in connection with this litigation and found a survey pin that Moser had left in the ground in the exact place the eastern and northern record boundaries meet. Hansen testified that the location of the Moser pin indicated that Moser intended the northern boundary to be the length stated in the deed. When Hansen surveyed the property, he accepted the call of the northern boundary and resolved the inconsistency in the property description by shortening the call of the southern border.

¶ 15 Veibell and Ericksen negotiated a purchase price of $175 per acre. Believing the property encompassed by the agreed upon boundaries contained seventy-five acres, they agreed upon a total price of $13,125. The parties executed a real estate contract memorializing the transaction. The contract recited the purchase price and contained the same property description as the 1967 deed, including the erroneous statement that the parcel contained "in all 75.8 acres more or less."

¶ 16 The Ericksens have paid property taxes on 75.8 acres since the 1967 transfer. Joel Henry, an employee of the Box Elder County Recorder's Office, testified that the county taxed the partnership for 75.8 acres in reliance on the acreage description in the 1967 deed.

¶ 17 Within a few years after the 1967 transaction, Alton Veibell hired Paul Palmer to erect a fence following Willow Creek along the length of the east side of the conveyed property. The northern portion of the fence Palmer built runs within several feet of the east...

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