Staker v. Ainsworth

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 Stak-ers, Ainsworths, Yocums, Holmeses, Jen-sens, 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.

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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 Ains-worths 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. Max-field 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 tri.al court relating to each of the elements of that doctrine in order for us to affirm the ruling.

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. Pan-guitch 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 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 survey information (or other technique by which record title information was located on the ground) that would have prevented a landowner, as a practical matter, from being reasonably certain about the true location of the boundary. By the same token, a claimant cannot assert boundary by acquiescence if he or his predecessors in title had reason to know the true location of the boundary during the period of acquiescence.

Halladay, 685 P.2d at 505; see also Stratford v. Morgan, 689 P.2d 360, 364 (Utah 1984). In other words, there must have been a particular form of dispute. The dispute may not be proved by evidence of mere differences of opinion or by a mere lack of actual knowledge of the true location of the boundary. Halladay, 685 P.2d at 505. The uncertainty or dispute must instead be measured against an objective test of reasonableness. The party claiming boundary by acquiescence has the burden of proving objective uncertainty as part of his prima facie case. Id. at 507.

In this case, appellants contend that ap-pellees have not shown that the fence lines arose out of a dispute or uncertainty as measured by an objective standard. The record reveals that the trial judge inquired several times as to when a dispute first arose, but appellees’ counsel was unable to answer satisfactorily. In an attempt to protect what appears to have been regarded as the true boundary line since 1890, appellees claim that the fence lines were established according to erroneous surveys, in particular a survey allegedly made by Alvin Rock in the 1920s. They also point to possible survey mistakes dating back to the first settlement of the region. Proof of such errors would possibly fulfill the objective uncertainty requirement in Halladay.³ The available evidence concerning this issue, however, is demonstrably incomplete, conflicting, and confusing. It is unclear, and apparently impossible to establish, whether an actual erroneous survey occurred or what the results were. That is not unexpected or unusual in a case involving boundary lines and surveys as old as these. This problem illustrates some of the difficulties associated with imposing a requirement of objective uncertainty in boundary by acquiescence. As Justice Howe pointed out in his dissent in Halla-day,

In the first place, a survey may have actually been made and the boundary marked on that line. Because of the lapse of many years, no one who was then present may be alive or available. Just because a recent survey shows the marked boundary to be incorrectly placed does not prove that its then owners, many years ago, did not have a survey made on which they relied in establishing the marked boundary. As finer and more precise instruments of survey are developed, property lines established in accordance with earlier surveys may after be shown to be out of place by later surveys.... The majority assures us that a new survey would not necessarily be allowed to upset a boundary set on an earlier survey. But after the lapse of many years, no one may know that an earlier survey was made. Thus, the later survey will be followed and the boundary, long recognized, will be moved.

685 P.2d at 509 (Howe, J., dissenting). Justice Howe’s second point also bears repeating:

[TJhe boundary dispute is here and now. It does little good to reflect as to what the then owners 30, 40 or 50 years ago might have done and disregard entirely the conduct of the owners and their successors since that time in acquiescing in the markers on the ground. In most cases, the acquiescence is an unconscious act with no thought being given during the period of acquiescence to the boundary, let alone with surveying it.

Id. Finally, Justice Howe concludes, “[I]t is not unjust in certain cases to require disputing owners to live with what they and their predecessors have acquiesced in for a long period of time.” Id. at 510.

It is not difficult to understand why this Court adopted a fifth element. As the majority opinion in Halladay noted, “The doctrine of boundary by acquiescence has been the source of considerable confusion and controversy among judges, lawyers, and landowners in this state.” Id. at 503 (citations omitted). The opinion proceeded to explain that much of the confusion resulted from the intermingling of two related doctrines: boundary by acquiescence and boundary by agreement. In previous opinions, this Court even referred to the doctrines as though they had merged into one. See, e.g., Hobson v. Panguitch Lake Corp., 530 P.2d at 794. The pivotal case upon which the Halladay majority relied in .expressly declaring uncertainty or dispute a requirement in boundary by acquiescence was Tripp v. Bagley, 74 Utah 57, 276 P. 912 (1928). In that case, the following statements are found:

[O]ne of the requisites necessary to the establishment of a boundary line other than the true boundary line between adjoining landowners by oral agreement or acquiescence ... is that the location of the true boundary sought to be thus established is or has been uncertain or in dispute.

Tripp, 74 Utah at 67, 276 P. at 916 (citations omitted).

It thus becomes of controlling importance to determine whether two adjacent landowners may establish a boundary line between their lands by oral agreement or by acquiescence for a long period of time, when there is no uncertainty as to the location of the true boundary line....

Tripp, 74 Utah at 69, 276 P. at 917 (emphasis added).

Cases which followed Tripp seized upon this dicta, which we now deem to be unfortunate in its impact, and intermittently began to refer to a showing of uncertainty or dispute in a boundary by acquiescence context. See, e.g., Leon v. Dansie, 639 P.2d 730, 731 (Utah 1981); Glenn v. Whitney, 116 Utah 267, 272-73, 209 P.2d 257, 260 (1949); Peterson v. Johnson, 84 Utah 89, 93, 34 P.2d 697, 698-99 (1934). The discussion in Tripp, however, occurred in an analysis of an express parol agreement problem and not in a boundary by acquiescence situation. Uncertainty and dispute were important in that case only insofar as they were needed to overcome a statute of frauds bar to an oral agreement. In an effort to clear up the ensuing confusion, and based upon what the Court believed at the time to be “the more recent cases” and “the clear weight of authority that the relevance of this ingredient is settled in our law,” we concluded in Halladay that a requirement of objective uncertainty would minimize conflict with the statute of frauds and avoid litigation while promoting stability in boundaries. Halladay, 685 P.2d at 505.

The new requirement, however, appears to have defeated the very purposes for which it was added and has, we now believe upon careful reflection, rendered the doctrine lifeless. As noted in Justice Howe’s dissents in Halladay v. Cluff, 685 P.2d at 508, Stratford v. Morgan, 689 P.2d at 365, and Parsons v. Anderson, 690 P.2d at 540, boundary by acquiescence has always been restrictively applied in Utah. Nevertheless, it fills an important gap in the law left unaddressed by other doctrines.⁴ For instance, settling a dispute under boundary by agreement requires that there was an express agreement between the parties. If actual knowledge of the boundary exists, there is no consideration exchanged and the agreement fails. Since sufficient proof of an agreement is often difficult to co.me by, the doctrine of boundary by agreement is not often invoked. There are similar problems in applying the estoppel theory to settle boundary disputes. ■ Thus, the doctrine of boundary by acquiescence, based largely on policy considerations (of avoiding litigation and promoting stability in landownership) fills a small but important gap.

The doctrine of boundary by acquiescence derives from realization, ancient in our law, that peace and good order of society is [sic] best served by leaving at rest possible disputes over long established boundaries. Its essence is that where there has been any type of a recognizable physical boundary, which has been accepted as such for a long period of time, it should be presumed that any dispute or disagreement over the boundary has been reconciled in some manner.

Baum v. Defa, 525 P.2d 725, 726 (Utah 1974) (footnotes omitted).

The problems that have emerged in our case law, which have been noted in recent commentary as well, indicate that the Hal-laday requirement of objective uncertainty makes boundary by acquiescence less practical, further restricts what was already a restrictive doctrine, and “effectively eliminate[s] boundary by acquiescence as a viable doctrine for settling property disputes in Utah.” 1985 Utah L.Rev. at 194. The result of Halladay and its progeny has been “to convert a doctrine that was originally predicated on the policy of settling boundaries by reference to long acquiesced in lines into a doctrine that [serves] as a basis for challenging boundaries not founded on recent survey information.” Id. at 201. Thus, in contrast to the purpose of the objective uncertainty requirement, it now appears that its use may increase litigation over boundaries rather than decrease it. Id.

The dissenting opinion criticizes this reversal of position, and it is certainly not particularly comfortable for an appellate court to decide it has made a mistake. However, much of the dissent’s focus on the role of stare decisis and judicial restraint simply has no application to a state supreme court in its common law development function. The rule we change today is a judge-made rule which has been soundly criticized by every scholarly reference to it.⁵ It is a highly technical, historically debated, somewhat arcane rule of property law, not some fundamental principle of constitutional law or social policy. Having become convinced that the objective uncertainty requirement of Halladay was a mistake, we change the rule accordingly.

Consequently, we overrule the fifth requirement of objective uncertainty contained in Halladay v. Cluff and affirm the summary judgment entered in favor of ap-pellees.-

HOWE, Associate C.J., and ZIMMERMAN, J., concur.

1 . As previously noted, Maxfield’s predecessor in interest gave him a quitclaim deed for the disputed strip of land bordering the Ainsworths' property. Conrad Maxfield's affidavit states that shortly after the purchase, he personally notified Heber Ainsworth that he did not regard the fence line as the true boundary. Heber Ainsworth died in 1979, but the Ainsworth family denies that the conversation ever took place.

2 . We note considerable recent commentary criticizing our decisions in tbis area. See, e.g., Backman, The Law of Practical Location of Boundaries and the Need for an Adverse Possession Remedy, 1986 B.Y.U.L.Rev. 957, 965-82 [hereinafter Backman]; Recent Developments, 1985 Utah L.Rev. 131, 193 [hereinafter 1985 Utah L.Rev.]; Note, Objective Uncertainty in Boundary by Acquiescence: Halladay v. Cluff, 1984 B.Y.U.L.Rev. 711.

3 . Among other examples, the Halladay opinion cites "disagreement among different surveyors on location of boundary line” as establishing objective uncertainty. Halladay, 685 P.2d at 506 (citations omitted). Appellees also rely heavily on footnote 7 in that opinion, which states in part:

[A] boundary located on a survey line could qualify for boundary by acquiescence, even though a subsequent survey showed the original survey to have been in error.... If the original survey was in error, that is a clear instance of objective uncertainty, and boundary by acquiescence will apply if its other elements are proved.

Id. at 508 n. 7.

4 . Three major doctrines have been developed to resolve boundary disputes among adjoining landowners: estoppel, boundary by agreement, and boundary by acquiescence. Backman at 962-68. The estoppel theory requires the combination of acts or representations by the original landowner and reliance by a neighbor on those representations in order to establish a boundary. Boundary by agreement, premised on a contractual theory, requires "(1) an agreement, (2) between adjoining landowners, (3) settling a boundary that was uncertain or in dispute, and (4) executed by actual location of a boundary line.” Backman at 963. In addition, Utah requires mutual acquiescence for a long period of time. The elements in boundary by acquiescence have been noted previously in this opinion.

5 . We have not hesitated in other instances to reverse case law when we are firmly convinced that we have erred earlier. See, e.g., State v. Hansen, 734 P.2d 421, 427 (Utah 1986), overruling State v. Norton, 675 P.2d 577 (Utah 1983); State v. Tuttle, 713 P.2d 703, 704 (Utah 1985), overruling State v. Brady, 655 P.2d 1132 (Utah 1982); American Fork City v. Crosgrove, 701 P.2d 1069, 1075 (Utah 1985), overruling Hansen v. Owens, 619 P.2d 315 (Utah 1980).