Staker v. Ainsworth, 870166

• Court: Supreme Court of Utah
• Writing for the Court: DURHAM; HOWE, Associate C.J., and ZIMMERMAN; HALL; STEWART, J., concurs in the dissenting opinion of HALL
• Citation: 785 P.2d 417
• Parties: Stuart H. STAKER, Plaintiff and Appellee, v. Noal D. AINSWORTH, Juanita Ainsworth Fox, David Ainsworth, Lynn Ainsworth, Jean Ainsworth, Jack Ainsworth, Beth Ainsworth, Freedom Yocum, Jr., Edna Yocum, Robert J. Holmes, Grant S. Jensen, Paul E. Holmes, Bruce E. Holmes, Helen Holmes, James Roger Shane and Elfriede Shane, Defendants and Appellees. Noal D. AINSWORTH, Juanita Ainsworth Fox, David Ainsworth, Lynn Ainsworth, Jean Ainsworth, Jack Ainsworth, Beth Ainsworth, Third-Party Plaintiffs and Appellees, v. Conrad G. MAXFIELD and Utah National Corporation, Defendants and Appellants.
• Docket Number: No. 870166,870166
• Decision Date: 08 January 1990

Page 417

785 P.2d 417 Stuart H. STAKER, Plaintiff and Appellee,
v.
Noal D. AINSWORTH, Juanita Ainsworth Fox, David Ainsworth,
Lynn Ainsworth, Jean Ainsworth, Jack Ainsworth, Beth
Ainsworth, Freedom Yocum, Jr., Edna Yocum, Robert J. Holmes,
Grant S. Jensen, Paul E. Holmes, Bruce E. Holmes, Helen
Holmes, James Roger Shane and Elfriede Shane, Defendants and
Appellees.
Noal D. AINSWORTH, Juanita Ainsworth Fox, David Ainsworth,
Lynn Ainsworth, Jean Ainsworth, Jack Ainsworth,
Beth Ainsworth, Third-Party Plaintiffs
and Appellees,
v.
Conrad G. MAXFIELD and Utah National Corporation, Defendants
and Appellants. No. 870166. Supreme Court of Utah. Jan. 8, 1990.

Page 418

Conrad G. Maxfield, David H. Day, Jay V. Barney, Murray, for defendants and appellants.

Joseph C. Rust, Salt Lake City, for Staker.

Jerrold S. Jensen, Salt Lake City, for the Holmeses and Jensen.

Mitchell J. Olsen, Midvale, for the Ainsworths.

Freedom and Edna Yocum, pro se.

James and Elfriede Shane, pro se.

DURHAM, Justice:

This is an appeal from a summary judgment in favor of appellees in which the trial court deferred to fence lines as property boundary lines over those established by a record title survey. In granting summary judgment, the trial court relied on the doctrine of boundary by acquiescence. Appellants contend that the trial court misapplied the doctrine and that summary judgment in their favor was warranted. We affirm the judgment and overrule Halladay v. Cluff, 685 P.2d 500 (Utah 1984), and its progeny as to the "objective uncertainty" requirement in boundary by acquiescence.

Appellants Conrad G. Maxfield and Utah National Corporation and appellees Stakers, Ainsworths, Yocums, Holmeses, Jensens, and Shanes own adjoining properties located approximately west of 300 West and east of the Rio Grande railroad tracks between 9400 South and 10000 South in Salt Lake County. The following diagram, not drawn to scale, illustrates the location of the properties involved in this case and their disputed boundaries.

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

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In 1972, Maxfield purchased his parcel and received a warranty deed from his grantors for the portion enclosed by the fence lines. He also received a quitclaim deed for the portion between the fence and the record title survey line which borders the Ainsworths' property. The strip is approximately eighty feet wide. Seven years later, the Stakers had their parcel surveyed. The survey indicated a discrepancy of about eighty feet between the fence lines and the record title boundary lines on both sides of the property. The Ainsworths had a survey done in 1981 which yielded similar results.

On May 7, 1985, the Stakers filed a complaint against the Ainsworths, Yocums, Holmeses, Jensens, and Shanes, seeking to judicially determine the boundary lines of their properties. Shortly thereafter, some of those defendants--appellees in this appeal--counterclaimed against the Stakers, alleging that the Stakers' action constituted a cloud on their titles. On August 10, 1985, the Ainsworths filed suit against Maxfield and others, seeking to quiet title according to the fence lines. They also filed a motion in January 1986 to consolidate the Staker action, in which various parties had joined. In January 1987, the Ainsworths filed a motion for summary judgment, in which the Stakers, Holmeses, Jensens, Yocums, and Shanes joined. Maxfield also filed a motion for summary judgment that month. On March 23, 1987, the trial court denied Maxfield's motion and granted the Ainsworths'. Apparently basing the decision on the doctrine of boundary by acquiescence, the trial judge's order declared the fence lines separating the parcels to be the true and proper boundary lines.

Maxfield and Utah National Corporation appeal the ruling and contend (1) that summary judgment in favor of appellees was in error because genuine issues of material fact exist and (2) that the trial court misapplied the doctrine of boundary by acquiescence.

In reviewing a motion for summary judgment, all doubts and uncertainties concerning issues of fact are viewed in the light most favorable to the party opposing summary judgment. Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864, 866 (Utah 1988). Where a triable issue of material fact exists, the cause will be remanded for determination of that issue. Id. In this case, the trial court ruled in favor of the fence lines by applying the doctrine of boundary by acquiescence. Therefore, there must exist undisputed facts in the evidence before the trial court relating to each of the elements of that doctrine in order for us to affirm the ruling.

Page 420

Historically, the doctrine of boundary by acquiescence included four factors: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners." Goodman v. Wilkinson, 629 P.2d 447, 448 (Utah 1981); 12 Am.Jur.2d Boundaries § 85 (1964 & Supp.1989). In Halladay v. Cluff, 685 P.2d 500 (Utah 1984), this Court added a fifth element to this list of factors: "objective uncertainty" as defined in that case.

It is clear that the fourth requirement, that there be adjoining landowners, has been met in this case. Although the various diagrams and maps before the trial court differ somewhat, they all reflect that the parcels involved are contiguous. Further, there is no indication that the parties to this suit are not the true owners of the property in dispute and therefore have no standing to sue. Similarly, there are no allegations that the parcels lacked occupation up to a visible line--the first requirement. Houses were built and occupied; land was farmed, improved, and irrigated; and livestock was kept. Lynn Ainsworth's affidavit, for instance, is typical in that it indicates that the Ainsworth family has farmed the property within the fence lines since at least 1930.

Pursuant to the third requirement, the claimed boundary line must also have been in existence for "a long period of time" to establish boundary by acquiescence. In most states, this period is the same as the limitations period for adverse possession. Note, Boundary by Agreement and Acquiescence in Utah, 1975 Utah L.Rev. 221, 228 & n. 57. However, this Court concluded in Hobson v. Panguitch Lake Corp., 530 P.2d 792, 795 (Utah 1975), that only under unusual circumstances would a common law prescriptive period of less than twenty years be sufficient to establish boundary by acquiescence. See also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (fifteen years of mutual acquiescence in a fence as a boundary did not fulfill requirement). Viewed in the light most favorable to appellants, the evidence in support of summary judgment was sufficient to establish that the fence lines had existed for a long period of time. Various affidavits state that present landowners remember the fences from their childhoods, which indicates that the claimed boundary lines have been in existence for at least thirty years. Other affiants stated that they recalled making repairs to existing fences as long ago as 1956. (Newer portions of the fence replaced washed-away or deteriorated sections but apparently were constructed to substantially follow the old boundary lines.) Finally, appellants concede in their brief that "[t]he fence lines involved in this case were probably established as long ago as the 1890's." Thus, the evidence establishes that the fence lines have been in existence for at least thirty years and perhaps as long as ninety years, satisfying the third requirement of boundary by acquiescence.

The record also supports the conclusion that there was mutual acquiescence in the fence line as a boundary for a long period of time, fulfilling the second requirement. Of course, there was no acquiescence from 1985, when the first claim regarding this dispute was filed. Arguably, there may have been no acquiescence after 1972, when Maxfield purchased his property. ¹ It appears, however, to be undisputed that successive landowners until 1972 or 1985 regarded the fences as the true boundary lines from the time they were first erected. As mentioned earlier, this probably was as early as 1890. There is no indication in the record that any predecessor in interest behaved in a fashion inconsistent with the belief that the fence line was the boundary. Owners occupied houses, constructed buildings, farmed, irrigated, and raised livestock only

Page 421

within their respective fenced areas. One residence in particular, belonging to the Shanes, is built up to a fence line and is cut into two parts by the new survey line. This house has been standing for over eighty years. Additionally, there is no indication that any landowner ever notified his neighbor of a disagreement over the true boundary. This scenario is different from the one in Parsons v. Anderson, where mutual acquiescence for the required period was lacking. In that case, the plaintiffs tore down significant portions of the fence and, without objection by the defendants, proceeded to plant trees and shrubs, store firewood, and construct a chain link fence in a different location. Id. at 539. No similar factors exist in this case.

We conclude that the undisputed facts establish all of the first four requirements of the doctrine of boundary by acquiescence. There are, however, problems associated with proof of the fifth requirement, that of objective uncertainty. We have been persuaded by the problems presented in this case to reconsider that requirement, enunciated by Halladay and succeeding case law. ² Halladay and its progeny would require that the property line as shown on the record title not be displaced by another boundary

unless it is shown that during the period of acquiescence there was some objectively measurable circumstance in the record title or in the reasonably available...