Dean v. Kang Sik Park , 2012 Utah App. LEXIS 381 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
James S. Dean and Sherlene T. Dean, ) OPINION
)
Plaintiffs and Appellees, ) Case No. 20110427‐CA
)
v. )
) FILED
Kang Sik Park, trustee of the Kang Sik ) (December 13, 2012)
Park Revocable Trust, and Marsha K. )
Park, ) 2012 UT App 349)
Defendants and Appellants. )
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Third District, Salt Lake Department, 090908746
The Honorable John Paul Kennedy
Attorneys: Robert E. Mansfield, James D. Gardner, and Adam C. Buck, Salt Lake
City, for Appellants
Bryce D. Panzer, Salt Lake City, for Appellees
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Before Judges McHugh, Voros, and Christiansen.
CHRISTIANSEN, Judge:
¶1 Defendants Kang Sik Park and Marsha K. Park (the Parks) appeal from the trial
court’s decision to quiet title in Plaintiffs James S. Dean and Sherlene T. Dean (the
Deans). Specifically, the Parks assert that the trial court erred in determining that they
failed to prove that both they and their neighbors acquiesced to a boundary marked by
a wooden fence and that the Parks occupied the property up to the wooden fence. For
the reasons stated below, we affirm the trial court’s decision.
BACKGROUND
¶2 This case arises over a boundary dispute between neighbors in the Federal
Heights area of Salt Lake City. The Deans purchased Lot 9 of Federal Heights Plat “D”
in April 2005. As part of a complete home renovation, the Deans planned to replace an
old wooden fence that ran between their lot and Lot 8, which was owned by their
next‐door neighbors, the Parks. To that end, they obtained a survey of Lot 9 and found
that the existing wooden fence running from the southwest corner to the northwest
portion of their property was located inside the record boundary line by several feet.
The wooden fence also ran east‐west along part of the rear border of Lot 9. At the rear
of the Deans’ property there is also a chain‐link fence that runs east‐west on the record
boundary line, runs parallel to the wooden fence up to the southwest corner of the
Deans’ lot, and runs approximately twenty feet to the north, mostly parallel to the
wooden fence. The divergence between the wooden fence and the record boundary line
partially marked by the chain‐link fence creates a small triangular plot of land that has
become overgrown by a number of Elm trees (the Disputed Area). After it became
apparent that the Parks challenged the Deans’ ownership of the Disputed Area, the
Deans filed an action to quiet title to the area and alternatively sought an order allowing
them to remove the trees, which they alleged threatened their house and property. The
Parks counterclaimed, seeking to quiet title to the Disputed Area under the theory of
boundary by acquiescence.
¶3 The Deans’ lot is one of three previously owned by Ms. Park and her former
husband, Dr. Jed Morrison. Ms. Park worked for a licensed real estate broker from the
late 1970s until 1992, when she obtained her own broker’s license. Dr. Morrison and Ms.
Park bought Lots 8, 9, and 10 of Federal Heights Plat “D” in 1977. They built their home
on Lot 10 because it was at the top of a gentle slope that extended across all three lots.
The Morrisons built several chain‐link fences in and around the three lots. Some of the
chain‐link fences, like the fence between Lots 9 and 10, did not follow the record
boundary line; other fences, like the fence between Lots 8 and 9, partially marked the
record boundary line. The chain‐link fence between Lots 8 and 9 runs exactly along the
record boundary line for approximately twenty feet.
¶4 When they divorced in 1983, Dr. Morrison retained Lot 9 and conveyed his
interest in Lots 8 and 10, located on either side of Lot 9, to Ms. Park. Dr. Morrison sold
Lot 9 to David Clark in 1983. During the same year, Ms. Park constructed a new home
on Lot 8, where she took up residence. She conveyed that parcel to Dr. Park in 1988 and
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relocated. Ms. Park and Dr. Park were married in 1991, whereupon Ms. Park moved
back into the Lot 8 residence.
¶5 After purchasing Lot 9, Clark, a professional architect, elected to level his
property by bringing in a substantial amount of fill before building a home and fence.
This created a three‐foot drop between his property and the Parks’ property. The drop
is most pronounced toward the northwestern portion of Lots 8 and 9 and gradually
lessens toward the rear of the lots until the properties are nearly level at the
southwestern corner. In approximately 1984, Clark constructed a wooden fence atop his
newly‐raised property, which is located inside the record boundary line. The wooden
fence ran from the back of Lot 9 inside the existing chain‐link fence, then angled inside
the record boundary line toward Clark’s house. The wooden fence did not run in a
straight line, but appeared to jog around some trees. The wooden fence sat
approximately three‐and‐a‐half feet inside the record boundary line at the northernmost
point of Clark’s house and four feet inside the record boundary line at the southwest
corner of Clark’s house. If Clark had instead built the wooden fence at the bottom of the
embankment between the lots, where the record boundary line runs, the fence would
have extended only approximately three feet above the level of his backyard and would
not have created privacy between the lots. Clark was unavailable to testify at trial.
¶6 The Parks testified that they occupied the Disputed Area by watering, fertilizing,
gardening, maintaining, and allowing Elm trees to grow on it. However, the trial court
found that “any watering or fertilizing of the Disputed Area was incidental to watering
or fertilizing of the grassy area of the back yard adjacent to the Disputed Area. No
sprinkler heads or lines are located in the disputed area.” The court also found that
“[Ms. Park]’s children occasionally planted small plants and flowers above the boulders
in the Disputed Area until approximately 1988, but [Ms. Park] never planted anything
in the Disputed Area after 1988. . . . [Ms. Park] has rarely even gone into the back yard
since 1993.” Furthermore, “the Disputed Area is not suitable for vegetable gardening
and has not been for a significant period of time.” Finally, the court found that “the
Parks have not made any significant use of the Disputed Area since at least 2005, and
likely since 1988, based on both the state of the Disputed Area and Ms. Dean’s
observation of the Parks’ activities.” Critically, the court found Dr. Park’s testimony
regarding the Parks’ use of the land to be unreliable. “Dr. Park’s testimony regarding
use of the Disputed Area was not consistent on a number of subjects, such as . . . when
grass . . . [and] trees were growing in the Disputed Area . . . . [His] testimony in this
matter is not credible and as a result . . . no weight [is given] to his testimony.”
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¶7 Clark’s wooden fence stood undisturbed and undisputed until the Deans bought
and surveyed the property. When they found that the fence was not on the record
boundary line, they notified the Parks in writing of their intent to replace and rebuild it
on the boundary line. In response, the Parks wrote two letters disputing ownership of
the area. The Deans removed the fence but preserved the fence posts and agreed to
leave the Elm trees pending a resolution of this dispute. The Deans brought suit to quiet
title on May 26, 2009. The Parks counterclaimed, arguing their right to quiet title under
the doctrine of boundary by acquiescence.
¶8 The trial court found that the Parks failed to meet their burden to establish two of
the elements necessary to prove a boundary by acquiescence: (1) mutual acquiescence in
a line as the boundary and (2) continuous occupation of the disputed area. The trial
court ultimately found that Clark built the wooden fence where he did as a barrier to
protect his privacy, rather than to establish the boundary between his and the Parks’
lots. The court found that the Parks’ testimonies regarding mutual acquiescence and
continuous occupation were not credible. Accordingly, the trial court quieted title to the
Disputed Area in the Deans and authorized the Deans to remove the Elm trees from the
property. The trial court made extensive findings of fact and conclusions of law. This
appeal, which addresses only the boundary by acquiescence issues, followed.
ISSUES AND STANDARDS OF REVIEW
¶9 The primary issue raised in this appeal is whether the trial court erred in
rejecting the Parks’ boundary by acquiescence claim and in quieting title to the Deans.
The Parks argue first that the trial court erred in determining that they failed to
demonstrate mutual acquiescence in the wooden fence as the boundary line. Related to
this issue, the Parks challenge the trial court’s reliance on what they characterize as
Clark’s subjective intent in building the wooden fence. Second, the Parks argue that the
trial court erred in finding that the Parks did not adequately occupy the Disputed Area.
¶10 We review a trial court’s determination of a boundary by acquiescence claim for
correctness. See RHN Corp. v. Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935. However, the trial
court’s conclusions of law on this issue are “‘highly fact‐dependent . . . , with numerous
potential fact patterns, which accord[s] the trial judge a broad measure of discretion
when applying the correct legal standard to a given set of facts.’” Orton v. Carter, 970
P.2d 1254, 1256 (Utah 1998) (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah
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1998)). To the extent that the Parks challenge the trial court’s factual findings, we will
not set them aside unless they are clearly erroneous. See Veibell, 2004 UT 60, ¶ 22.
ANALYSIS
¶11 Under long‐established Utah law,
[f]or a court to quiet title in a parcel of property on the basis
of boundary by acquiescence, the party claiming title to
property under the doctrine must establish “(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, [and] (iv) by adjoining
landowners.”
Ault v. Holden, 2002 UT 33, ¶ 16, 44 P.3d 781 (second alteration in original) (quoting
Orton, 970 P.2d at 1257); accord Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 6, 270
P.3d 430; Goodman v. Wilkinson, 629 P.2d 447, 448 (Utah 1981). “If the party attempting
to establish boundary by acquiescence fails to satisfy any one of the elements of the
doctrine, the boundary is defeated.” Ault, 2002 UT 33, ¶ 16. Because the Parks invoked
the doctrine of boundary by acquiescence in this case, the burden of satisfying each
element rests with them, and their burden for doing so is by clear and convincing
evidence. See Essential Botanical, 2011 UT 71, ¶ 22 (explaining that “[b]ecause boundary
by acquiescence . . . alters fee simple ownership of real property, we hold that a claim of
boundary by acquiescence must be proven by clear and convincing evidence”).1 The
Parks argue that the trial court erred in determining that they failed to establish both the
mutual acquiescence and occupation elements of boundary by acquiescence.
1
The Utah Supreme Court’s decision in Essential Botanical Farms, LC v. Kay, 2011
UT 71, 270 P.3d 430, was entered eight months after the trial court’s decision in this
case. Of significance, however, is the trial court conclusion “that the Parks have not
carried their burden to establish boundary by acquiescence by either a preponderance
of the evidence or by clear and convincing evidence.” We agree that the Parks failed to
carry their burden either by a preponderance of the evidence or by clear and convincing
evidence.
20110427‐CA 5
I. Mutual Acquiescence
¶12 The Parks first argue that the trial court erred in determining that they failed to
present clear and convincing evidence that they and their neighbors mutually
acquiesced in the wooden fence as the boundary line between the two properties.
“‘Under the doctrine of boundary by acquiescence, the party attempting to establish a
particular line as the boundary between properties must establish that the parties
mutually acquiesced in the line as separating the properties.’” Essential Botanical, 2011
UT 71, ¶ 26 (quoting Veibell, 2004 UT 60, ¶ 24).
¶13 Specifically, the Parks take issue with the trial court’s conclusion that “the most
important factor regarding acquiescence in this unique case is the purpose of Clark’s
fence.” The Parks argue that the trial court incorrectly surmised Clark’s subjective intent
in building the wooden fence and relied on that supposition to conclude that Clark did
not acquiesce to the wooden fence as the boundary, in contravention of the Utah
Supreme Court’s recent decision in Essential Botanical Farms, LC v. Kay, 2011 UT 71, 270
P.3d 430.
¶14 In Essential Botanical, the supreme court made clear that a determination of
mutual acquiescence must be based on the objective behavior of the adjacent
landowners regardless of an owner’s subjective beliefs about the boundary. Id.¶¶ 27–28. The court explained,
[A] party’s subjective intent has no bearing on the existence
of mutual acquiescence. Instead, acquiescence in, or
recognition of, a boundary is an objective determination
based solely on the parties’ actions in relation to each other
and to the line serving as the boundary. Mutual
acquiescence arises “where neighbors do not behave[] in a
fashion inconsistent with the belief that a given line is the
boundary between their properties. . . .” [R]ecognition is
displayed through specific actions, the existence of which is
not determined by the actor’s mental state. As a result, the
determination of mutual acquiescence is based on the
objective behavior of the adjacent landowners regardless of
their subjective intent to act in such a manner.
20110427‐CA 6
Id. ¶ 27 (second alteration in original) (additional citations and internal quotation marks
omitted) (quoting Bahr v. Imus, 2011 UT 19, ¶ 37, 250 P.3d 56). The court then elaborated
that “a subjective belief regarding the location of a boundary may be evidence of
mutual acquiescence, but only to the extent that such understanding is based on the
objective actions of the landowners.” Id. ¶ 28.
¶15 Given the supreme court’s discussion in Essential Botanical, we agree with the
Parks’ assertion that in boundary by acquiescence cases, a party’s subjective belief about
a particular boundary may not be determinative to a finding of mutual acquiescence.
However, the Parks misconstrue the trial court’s findings in this case as well as the
supreme court’s analysis of subjective intent. We take this opportunity to clarify the
trial court’s finding that “the most important factor regarding acquiescence in this
unique case is the purpose of Clark’s fence” in light of Essential Botanical.
¶16 After clarifying that the subjective belief or mental state of a party has no bearing
on the determination of mutual acquiescence except where it is based on the party’s
objective actions, the Essential Botanical court concluded that “the landowners mutually
acquiesced by recognizing and treating the fence as the boundary between their
properties” in part because “all five witnesses were consistent in their testimony that
they always believed the fence was the boundary between their properties.” Id. ¶ 29
(emphasis added). The court went on to explain that their belief was supported by
testimony as to the landowners’ actions, in particular, generations of farming the land
and treating the fence as the separating line between the farms. Id.
¶17 Although the Essential Botanical court did not discuss mutual acquiescence
specifically in terms of purpose, we do not understand “purpose” as falling exclusively
into either the category of subjective belief, intent, or mental state on the one hand or
the category of objective action and behavior on the other. Instead, the term “purpose,”
similar to the supreme court’s use of the term “belief,” can be explained by mental state
or by objective action. In Essential Botanical, when stating that the landowners
“believed” that the fence was a boundary, the supreme court relied on the objective
actions of the landowners in determining their recognition and treatment of the fence as
the boundary. See id.
¶18 A case more factually on point with the present case is Wilkinson Family Farm,
LLC v. Babcock, 1999 UT App 366, 993 P.2d 229. In Wilkinson, the adjoining landowners
knew the location of the “true” boundary. Id. ¶ 4. A fence was built on a particular
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location just off of the true boundary line to avoid impractical topography, and it was
built to contain cattle. Id. ¶¶ 3–4. This court affirmed the trial court’s consideration of
the parties’ purpose in building the fence, concluding that the purpose of the fence was
determinative of mutual acquiescence because the fence was not “intended as a
boundary” but rather as a means of containing livestock. Id. ¶¶ 4, 9–10.
¶19 We explained that “Utah courts have consistently considered the purpose of a
fence or other marker in determining whether parties in dispute mutually acquiesced in
a fence as a boundary, typically concluding that there is no acquiescence where the
fence was not intended as a boundary.” Id. ¶ 10 (collecting cases in which a fence was
built for detaining livestock instead of as a boundary). Importantly, in Wilkinson, we
used the terms “purpose” and “intent” to explain the landowners’ subjective intent only
insofar as the purpose or intent in building the fence was supported by the landowners’
objective actions. See id. ¶¶ 9–10. What also sets Wilkinson apart from Essential Botanical
is that, in Wilkinson, the landowners’ behavior demonstrates that they did not recognize
and treat the line as a boundary, whereas in Essential Botanical, the landowners did. See
1999 UT App 366, ¶¶ 9–10; see also Essential Botanical Farms, LC v. Kay, 2011 UT 71,
¶¶ 29–31, 270 P.3d 430.
¶20 Similarly, here, based upon the evidence submitted at trial, the trial court
inferred that Clark built the wooden fence to protect the privacy of his yard and patio
rather than to establish a boundary. The trial court found that prior to building the
house, Clark brought in a substantial amount of soil to raise the level of Lot 9. Due to
the raised level of the property, “there is a short but relatively steep sloped area
between the lots, especially in the vicinity of the homes . . . . The record property line
runs through the sloped area between the two lots.” Clark built the wooden fence along
the highest point of this slope between the lots. “This location maximized the privacy
afforded to both Lot 9 and Lot 8.” Specifically, the trial court explained,
Had Clark constructed the wood fence along the record
property line . . . the fence would have been three to four feet
lower, giving the fence the appearance of being only about
three feet tall from the perspective of someone in Lot 9 on
the patio area behind the house. This would have resulted in
reduced privacy to the back yards of both lots, as the fence
would have been much easier to see over and thus to see
into each yard from the other.
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¶21 We disagree with the Parks’ assertion that the court incorrectly relied on Clark’s
subjective purpose or intent, in contravention of Essential Botanical. See Essential
Botanical, 2011 UT 71, ¶¶ 27–29. To the contrary, we conclude that the trial court’s
reliance on Clark’s purpose in building the wooden fence was based on Clark’s
demonstrated experience and objective actions. And given that Clark did not testify, the
trial court’s use of the word “purpose” was not based on Clark’s mental state or intent.
¶22 Furthermore, in this case, the landowners knew the location of the actual record
boundary line between Lots 8 and 9. This court also addressed the landowners’
knowledge of the “true” boundary line in Wilkinson. There, the trial court found that the
parties and their predecessors knew the location of the “true” boundary and used the
disputed area between the actual boundary and the fence for their respective activities.
See Wilkinson, 1999 UT App 366, ¶ 4. This court affirmed, concluding that the parties did
not mutually acquiesce to the fence in part due to their knowledge of the actual
boundary line: “‘[I]f there is no uncertainty as to the location of the true boundary line
the parties may not, knowing where the true boundary line is, establish a boundary line
by acquiescence at another place.’” Id. ¶ 12 (quoting Nunley v. Walker, 369 P.2d 117, 122
(Utah 1962)).
¶23 We construe “knowledge” much the same as we do “purpose.” In light of
Essential Botanical, the landowners’ knowledge of the true boundary line is important
when such knowledge is inferred from the evidence of the landowners’ objective
actions, rather than as an independent indication of the landowners’ subjective belief,
intent, or mental state. See Essential Botanical, 2011 UT 71, ¶¶ 27–29. Here, in addition to
Clark’s purpose for building the wooden fence where he did, the trial court found that
both Clark and Ms. Park had some degree of knowledge of the record boundary line.
¶24 With regard to Clark, the trial court found that he
was an architect by profession, [who] designed and built the
home on Lot 9 during 1984. Based upon Clark’s profession
and the approval of his building plans by the city, the Court
finds that Clark knew where the record boundary line was
and constructed his house in substantial compliance with the
setback and side yard requirements . . . as evidenced by the
fact that the corners of the home on Lot 9 are nearly exactly
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ten (10) feet from the record property line and twenty feet
combined.
¶25 And with regard to Ms. Park, the court found that “[b]ased on her long history of
detailed involvement with the properties and her professional expertise, . . . [Ms. Park]
had or at one time had actual knowledge of the record property lines for the lots.” In
particular, the court found that Ms. Park worked in real estate when she purchased the
lots; that she was involved with the construction of homes on Lots 8 and 10; that she
had viewed the plat maps when she purchased the lots and therefore knew that the
boundary lines were not straight; and that she was involved with the construction of the
chain‐link fence on the record boundary line between the lots. Also, the court found that
the chain‐link fence built by Ms. Park and her former husband that partially marked the
true boundary between Lots 8 and 9 remained in place even after Clark built the
wooden fence in 1984.
¶26 The trial court thus determined “that Clark’s and [Ms. Park]’s knowledge of the
true, record boundary line between the lots is relevant to the issue of acquiescence and
weighs against mutual acquiescence in this case.” The trial court correctly relied on the
parties’ knowledge of the “true” boundary line because it found that their knowledge
was evidenced by their objective actions and behavior as demonstrated by their
involvement and professional expertise.
¶27 The trial court correctly considered Clark’s purpose for building the wooden
fence in determining that he had not acquiesced in that line as the boundary between
the lots. The trial court also properly considered Clark’s and Ms. Park’s knowledge of
the actual boundary line between the lots in determining that they had not acquiesced
in the wooden fence line as the boundary. Thus, we affirm the trial court’s
determination that the Parks failed to meet their burden of proving by clear and
convincing evidence that the parties had mutually acquiesced to the wooden fence as
marking the boundary between Lots 8 and 9.
II. Occupation
¶28 The Parks also contend that the trial court erred in concluding that they
inadequately demonstrated their occupation of the Disputed Area in establishing their
boundary by acquiescence claim. We determine that the trial court did not err in
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concluding that the Parks failed to present clear and convincing evidence that they
adequately occupied the Disputed Area.
¶29 Under Utah law, “courts should consider whether a particular ‘occupation up to
a visible line’ would place a reasonable party on notice that the given line was being
treated as the boundary between the properties.” Bahr v. Imus, 2011 UT 19, ¶ 36, 250
P.3d 56. The trial court’s findings refer to a similar standard, “a pattern of use that is
normal and appropriate for the character and location of the land.” See Englert v. Zane,
848 P.2d 165, 170 (Utah Ct. App. 1993). The trial court found that the Parks failed to
provide credible evidence meeting this standard.
¶30 At trial, the Parks claimed that they occupied the land by watering and fertilizing
the ground and by allowing the Elm trees to remain. However, the trial court
specifically included in its findings of fact that “any watering or fertilizing of the
Disputed Area was incidental to watering of fertilizing of the grassy area of the back
yard adjacent to the Disputed Area. No sprinkler heads or lines are located in the
disputed area.” Although Dr. Park claimed to have maintained a vegetable garden in
the area, the trial court found that he “was not consistent on a number of subjects” and
that “Dr. Park’s testimony in this matter is not credible and as a result g[ave] no weight
to his testimony.” Further, the court found that “the Disputed Area is not suitable for
vegetable gardening and has not been for a significant period of time,” that Ms. Park
“never planted anything in the Disputed Area after 1988,” and that she has “rarely even
gone into the back yard since 1993.”
¶31 “We ‘will not reverse the findings of fact of a trial court sitting without a jury
unless they are . . . clearly erroneous.’” RHN Corp. v. Veibell, 2004 UT 60, ¶ 22, 96 P.3d
935 (quoting Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998)). Furthermore, Utah law
states that “[f]indings of fact, whether based on oral or documentary evidence, shall not
be set aside unless clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the witnesses.” Utah R. Civ. P. 52(a). The
evidence was sufficient to support the findings, and we therefore see no reason to set
aside the trial court’s factual findings in this case. The Parks have not pointed us to any
compelling record evidence that they used the Disputed Area in any significant way or
that their actions could reasonably have been expected to put the Deans or their
predecessors on notice that the wooden fence was being treated as a boundary between
the lots. Thus, the Parks have failed to meet their burden of proving by clear and
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convincing evidence that the “occupation” prong of the boundary by acquiescence
doctrine was satisfied.
CONCLUSION
¶32 The trial court did not err in considering the purpose for the construction of the
wooden fence and in determining that the parties had knowledge of the true boundary
line between Lots 8 and 9. In addition, we cannot say that the trial court’s determination
that the Parks failed to prove that they occupied the Disputed Area was erroneous.
Therefore, we agree that the Parks failed to establish by clear and convincing evidence
that both parties mutually acquiesced to a boundary change and that the Parks
sufficiently occupied the Disputed Area. We accordingly affirm the trial court’s
determination quieting title of the Disputed Area in the Deans.
____________________________________
Michele M. Christiansen, Judge
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¶33 WE CONCUR:
____________________________________
Carolyn B. McHugh, Judge
____________________________________
J. Frederic Voros Jr., Judge
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