Smith v. Security Investment Ltd.

Decision Date03 December 2009
Docket NumberNo. 20080790-CA.,20080790-CA.
Citation223 P.3d 451,2009 UT App 355
PartiesWilliam R. SMITH and Ludean A. Smith, as trustees of the Smith Family Revocable Trust; Mack G. Smith and Carolyn Smith, as trustees of the Mack G. Smith and Carolyn Smith Revocable Trust; J. Lynn Smith, as trustee of the J. Lynn Smith Living Trust; and Cindy S. Hatch, an individual, Plaintiffs and Appellees, v. SECURITY INVESTMENT LTD, a Utah limited partnership, Defendant and Appellant.
CourtUtah Court of Appeals

George K. Fadel, Bountiful, for Appellant.

Wade R. Budge, Troy L. Booher, and Chris J. Martinez, Salt Lake City, for Appellees.

Before GREENWOOD, P.J., ORME and DAVIS, JJ.

MEMORANDUM DECISION

ORME, Judge:

¶ 1 This case involves a dispute over a two-acre parcel of land to which Defendant Security Investment LTD claims record title, but to which Plaintiffs (collectively, the Smiths) claim ownership under the doctrine of boundary by acquiescence. A fence, constructed in a nearly straight line, follows the record boundary line between several properties, including the properties owned by Security and the Smiths, excepting the relevant two-acre parcel of land that is on the Smiths' side of the fence. The bench trial was limited to the factual issue of whether the fence served as a boundary or a barrier, and thus centered on the legal issue of whether the parties mutually acquiesced in the fence as a boundary. The court had already determined that there were no disputed material facts concerning the other requisite elements of boundary by acquiescence, which elements had been established on summary judgment.1

¶ 2 The trial court made a factual finding that "[t]he [Smiths] have always believed that the fence is the boundary between their property and [Security's] property" but made no corresponding finding relating to Security's belief. Security claims that the trial court erred in concluding both parties mutually acquiesced in the fence as a boundary when the trial court did not specifically find that Security believed the fence was, or treated the fence as, a boundary. We conclude that the factual findings2 as a whole support the conclusion that Security "impliedly consent[ed], or acquiesce[d]" in the fence as the boundary. RHN Corp. v. Veibell, 2004 UT 60, ¶ 24, 96 P.3d 935 (citation and internal quotation marks omitted).

¶ 3 Under Utah's boundary by acquiescence doctrine, a party is no longer required to establish that the true boundary is "unknown," as Florence v. Hiline Equipment Co., 581 P.2d 998, 1000 (Utah 1978), required, see Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781, or that there is "objective uncertainty" regarding the true boundary, Staker v. Ainsworth, 785 P.2d 417, 424 (Utah 1990) ("overrul[ing] the fifth [boundary by acquiescence] requirement of objective uncertainty contained in Halladay v. Cluff"). See Halladay v. Cluff, 685 P.2d 500, 503-05 (Utah 1984). Instead, to establish boundary by acquiescence, a party must establish only 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 landowners." RHN Corp., 2004 UT 60, ¶ 23, 96 P.3d 935 (citation and internal quotation marks omitted). See id. ¶ 30 (stating the "long period of time" element "mean[s] at least twenty years").

¶ 4 For the "mutual acquiescence" element, the Utah Supreme Court has defined "[t]o acquiesce" as "to `recognize and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property.'" Id. ¶ 24 (citation omitted). See Mason v. Loveless, 2001 UT App 145, ¶ 19, 24 P.3d 997 ("`Mutual acquiescence in a line as a boundary has two requirements: that both parties recognize the specific line, and that both parties acknowledge the line as the demarcation between the properties.' A boundary by acquiescence, thus, requires more than mere acquiescence in use; it requires acquiescence to a line as a boundary.") (citation omitted). "Acquiescence is a `highly fact-dependent question,' and `acquiescence, or recognition, may be tacit and inferred from evidence, i.e., the landowner's actions with respect to a particular line may evidence the landowner impliedly consents, or acquiesces, in that line as the demarcation between the properties.'" RHN Corp., 2004 UT 60, ¶ 24, 96 P.3d 935 (citations omitted).

¶ 5 "[V]arious landowner actions [may] evidence . . . acquiescence in a visible line as a boundary." Id. ¶ 25. For instance, "[o]ccupation up to, but never over, the line is evidence of acquiescence," but "occupation by itself may in some cases be insufficient to establish acquiescence." Id. "Acquiescence may also be shown by silence, or the failure of a party to object to a line as a boundary," id., particularly when a fence "appears to be a boundary," Lane v. Walker, 29 Utah 2d 119, 505 P.2d 1199, 1200 (1973) ("[T]he test to establish the boundary by `acquiescence' necessarily need not be based on mutual `intent.' `Intent' is not synonymous with `acquiescence'. . . . `Acquiescence' is more nearly synonymous with `indolence,' or `consent by silence,'—or a knowledge that a fence or other monuments appears to be a boundary,—but that no one did anything about it[.]"). See Mason, 2001 UT App 145, ¶ 20, 24 P.3d 997 ("[O]ur settled case law . . . clearly provides that acquiescence may be established by silence."). Cf. Ault, 2002 UT 33, ¶ 20, 44 P.3d 781 ("[R]ecord property owners are not required to take legal action or otherwise `oust' someone adversely occupying their property to maintain their legal rights in their property. They must only take some action manifesting that they do not acquiesce or recognize the particular line, e.g., a fence, as a boundary between the properties.") (emphasis added) (citation omitted).3

¶ 6 Additionally, "knowledge of the true boundary is relevant to a determination of whether a party acquiesced in a particular line as the boundary. . . . [S]uch factual knowledge is properly considered, and in fact may take the dispute out of the reach of boundary by acquiescence."4 Wilkinson Family Farm, LLC v. Babcock, 1999 UT App 366, ¶ 13, 993 P.2d 229 (emphasis added). See Ault, 2002 UT 33, ¶ 19, 44 P.3d 781 ("In other words, to acquiesce, a landowner must recognize and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property, regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain.") (emphasis added). And finally, the fence's purpose is also an important consideration in determining acquiescence. See Mason, 2001 UT App 145, ¶ 19, 24 P.3d 997.

¶ 7 The factual findings show that the fence in question followed a nearly straight line, was constructed along the record boundary between several different properties, and only deviated from the record boundary with regard to the disputed two-acre parcel. The fence in actuality, then, served as the true boundary for the overwhelming majority of all property it touched. And, therefore, its apparent purpose,5 with regard to the disputed two-acre parcel, was also to serve as a boundary. Cf. Van Dyke v. Chappell, 818 P.2d 1023, 1027 (Utah 1991) ("Additional evidence that provides further support for the finding that the fence was intended as a boundary [is] the fact that the fence was in line with the rest of the fences that ran across the valley."). The findings also show that since 1978, the Smiths used the disputed two-acre parcel for farming and grazing while Security made no use whatsoever of the disputed parcel and never objected to the Smiths' use of the disputed parcel.

¶ 8 With the fence appearing to denote a boundary of the disputed parcel, Security's silence, inaction, and failure to object to the Smiths' use of the two acres is highly significant. So too is the Smiths' treatment of the fence as a boundary, along with Security's complete lack of use of the disputed property with no objective actions supporting that it claimed ownership of the disputed parcel.6 These factors readily support the trial court's conclusion that Security impliedly consented to, or acquiesced in, the fence as a boundary, regardless of whether Security subjectively intended to do so or knew the true record boundary to be otherwise.7 See generally RHN Corp. v. Veibell, 2004 UT 60, ¶¶ 25, 29, 96 P.3d 935 (discussing that objective uncertainty regarding the true boundary is no longer required, that silence can establish acquiescence, and that "[o]ccupation up to" a fence may support acquiescence in the fence as a boundary); Ault v. Holden, 2002 UT 33, ¶ 20, 44 P.3d 781 (stating that record property owners "must . . . take some action manifesting that they do not acquiesce"); id. ¶ 19 (indicating acquiescence may be shown "regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain"); Lane, 505 P.2d at 1200 (indicating a landowner may "'consent by silence,'" or inaction when "a fence . . . appears to be a boundary").

¶ 9 Furthermore, as observed in Provonsha v. Pitman, 6 Utah 2d 26, 305 P.2d 486 (1957), sometimes when it is not economically feasible to fence around a small portion of land that is part of a large tract, a landowner "may . . . prefer[] to establish what might have been a not too accurate boundary and to have been content that it should be the dividing line, rather than to expend a sum that undoubtedly would have exceeded the value of the land involved." Id. at 487. Security's tenant's testimony explaining that they chose not to fence in the disputed two-acre parcel because doing so did not make economic sense comports with the sentiment expressed in Provonsha, and may well explain Security's apparent apathy concerning the two acres—at least until local land values increased.8 Importantly, the tenant also stated, "I never once...

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    ...because he “used the disputed property on several occasions” and the claiming party “twice offered to purchase it”); Smith v. Security Inv. Ltd., 2009 UT App 355, ¶¶ 7–8, 223 P.3d 451 (concluding that evidence showing that the opposing party “made no use whatsoever of the disputed parcel an......
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