Q-2, LLC v. Hughes ( 2014 )

ORME, Judge

(concurring specially):

119 I concur in the court's opinion, but with some trepidation. As I observed at oral argument, the idea that legal title to real property would be deemed to have shifted pursuant to doctrines like boundary by acquiescence or adverse possession ⁵ not at a point in time when a judicial decree so determines, but at some earlier point in time when the elements of such doctrines are factually satisfied, is concerning. This will mean that some real estate titles will be other than as shown by recorded documents, other than as memorialized in judicial decrees, and other than as an inspection of the property would suggest. The resulting uncertainty seems to guarantee a level of risk that is anathema to prospective real estate buyers as well as title insurers.

120 That said, I cannot argue that the import of the decisions cited in the lead opinion is other than as concluded there. So I do hope the parties will ask the Utah Supreme Court to review this decision. And I hope that the Court will grant the certiora-ri petition. The result we reach, troubling though it is, seems all but compelled by the Supreme Court opinions on which we rely. I cannot help but believe that those precedents should be reconsidered by the one court in a position to do something about them.

5 . This case involves the interplay between adverse possession and boundary by acquiescence, but the basic problem-viewing titles as having shifted not when a judicial decree says they have but when the requirements for those doctrines were satisfied at some earlier moment in time-is presented in any case involving either doctrine and, indeed, other doctrines, such as easement by necessity, easement by implication, and prescriptive easement.