Q-2 v. Hughes , 368 P.3d 86 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 8IN THE
SUPREME COURT OF THE STATE OF UTAH
Q-2 L.L.C.,
Petitioner,
v.
WAYNE L. HUGHES, SR. and
PATRICIA L. HAMPTON-HUGHES,
Respondent.
No. 20140131
Filed February 16, 2016
Second District, Farmington
The Honorable Glen R. Dawson
No. 080700575
On Certiorari from the Court of Appeals
Attorneys:
David J. Shaffer, Bountiful, for petitioner
John M. Webster, Riverdale, for respondents
Kenji Kawa, Riverdale, for respondent Wayne L. Hampton
Anthony W. Schofield, Peter C. Schofield, Justin W. Star,
Salt Lake City, amicus curiae, for Attorney‘s Title Guaranty Fund,
First American Title Company, Old Republic National Title
Company, Stewart Title Guaranty Company, and
Westcor Land Title Company
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM,
and JUSTICE HIMONAS joined.
JUSTICE JOHN A. PEARCE became a member of the Court on
December 17, 2015, after oral argument in this matter, and
accordingly did not participate.
Q-2 v. HUGHES
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 We are asked to decide only one issue in this case: how and
when does a party acquire title to property under the doctrine of
boundary by acquiescence? Does title transfer by operation of law at
the time the elements of boundary by acquiescence are met or by
judicial decree at the time the trial court enters its order? This case
arises out of a boundary dispute involving Wayne Hughes and
Patricia Hampton-Hughes (collectively, Hugheses) and their
neighbor, Q-2, L.L.C. and its predecessors-in-interest (collectively,
Q-2). Although the Hugheses agree that Q-2 properly obtained title
to the property at issue under the doctrine of boundary by
acquiescence, they argue that it did so at the time the elements of the
doctrine were satisfied, allowing the Hugheses to subsequently
reacquire the property through adverse possession. Q-2 disputes the
Hugheses‘ claim and argues that it did not obtain title until the trial
court ruled in its favor, preventing the Hugheses‘ adverse possession
claim. After reviewing our prior boundary by acquiescence cases, the
related doctrine of adverse possession, and the policy rationales
underpinning these doctrines, we hold that a party obtains title
under the doctrine of boundary by acquiescence by operation of law
at the time the elements of the doctrine are satisfied. Accordingly, we
affirm the decision of the court of appeals.
Background
¶2 This case is based on a boundary dispute between owners of
neighboring properties in Syracuse, Utah. The parties, or their
predecessors-in-interest, had used an old fence line running north to
south as the boundary between the parcels from 1927 to 1971. The
fence had been erected on the eastern parcel of property, effectively
depriving the owners of the eastern parcel of a portion of their
record property. The Hugheses acquired the eastern parcel in 1998.
By the time the Hugheses acquired the property, the old fence had
deteriorated to the point it was no longer visible. The Hugheses
proceeded to use the purchased property up to the record boundary
line, which included the property west of the old fence line. This
meant that the Hugheses were occupying property that the parties or
their predecessors-in-interest had considered part of the western
parcels for decades.
¶3 In 2001, one of the Hugheses‘ neighbors, Dahl Investment
Company (Dahl), brought a quiet title action, claiming that Dahl had
acquired the disputed property—property lying west of the old
fence line up to the record boundary—under the doctrine of
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boundary by acquiescence. The trial court ruled in favor of Dahl, and
the Hugheses appealed. The court of appeals upheld the trial court‘s
order in 2004, rejecting the Hugheses‘ arguments that the
deterioration of the fence and their nonacquiescence to the fence line
defeated Dahl‘s claim.1
¶4 After the Dahl claim had been litigated and appealed, Q-2,
whose property bordered the Hugheses‘ along the same fence line at
issue in the Dahl litigation, notified the Hugheses by letter in 2005
that Q-2 considered their continued use of the disputed property as
trespassing on Q-2‘s property and demanded that they cease and
desist their use. After the Hugheses continued to use the property,
Q-2 brought an action in 2008 to quiet title to the disputed property
under the theory of boundary by acquiescence. Q-2 relied on the
same evidence that had been presented in the Dahl litigation to
establish its claim. The Hugheses counterclaimed, asserting that even
if Q-2 had acquired the property through boundary by acquiescence,
the Hugheses had reacquired the property by adverse possession.
The trial court dismissed the Hugheses‘ counterclaim by way of
summary judgment2 and then quieted title to the property in Q-2
after a bench trial. The Hugheses appealed.
¶5 The court of appeals affirmed the trial court‘s conclusion
that Q-2 had obtained title to the disputed property through
boundary by acquiescence but reversed the trial court‘s dismissal of
the Hugheses‘ counterclaim after clarifying the applicable law. 3 The
court of appeals determined that in order ―to evaluate the Hugheses‘
adverse possession claim[, the court] must first determine when legal
1 Dahl Inv. Co. v. Hughes, 2004 UT App 391, ¶¶ 10–11, 101 P.3d
830.
2 It is unclear on what grounds the trial court granted Q-2‘s
summary judgment motion. Q-2 asked for summary judgment on
two grounds: first, Q-2 argued the Hugheses could not prove
adverse or hostile possession of the property because they believed
they owned the disputed land; and second, they stated that the
Hugheses did not possess the property for a sufficient amount of
time because Q-2 did not own the property until after the lawsuit,
the claim at issue in this decision. These appear to be arguments not
over facts, but whether on the undisputed facts the Hugheses were
entitled to judgment as a matter of law.
3 Q-2, LLC v. Hughes, 2014 UT App 19, ¶¶ 13, 16, 319 P.3d 732.
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Q-2 v. HUGHES
Opinion of the Court
title to the disputed property passed to Q-2 or its predecessor-in
interest.‖4 Although the court of appeals noted that the issue
―appear[ed] to be an issue of first impression for Utah Courts,‖ it
found ―clear guidance in our . . . boundary by acquiescence
jurisprudence,‖5 and held that ―legal title to the disputed property
passed to Q-2‘s predecessor-in-interest no later than 1971‖ by
operation of law.6 Thus, ―the Hugheses‘ predecessor-in-interest
could convey only ‗bare record title‘ to the disputed property to the
Hugheses by the 1998 warranty deed, and legal title rested with
Q-2.‖7
¶6 After ruling on this issue, the court of appeals also clarified
that the adverse or hostile element of adverse possession can be
satisfied when ―a person in possession of the property . . . possesses
a written document purporting to convey title.‖8 ―Thus, the
Hugheses‘ possession of the entire property described by their
warranty deed‖—a deed that conveyed only ―bare record title‖—
―was adverse to the legal title of the disputed property,‖ which had
vested in Q-2 decades ago.9 Having clarified the law that the trial
court should apply, the court of appeals also held that ―[o]n each
element of their claim of adverse possession, the Hugheses
introduced sufficient evidence to survive summary judgment‖ and
remanded the case for further proceedings.10 Two of the three judges
concurred separately, noting the potential problems that arise from
allowing title to transfer by operation of law without judicial
intervention and asking us to review the decision. 11 Q-2 petitioned
for review, and its petition was accompanied by an amicus brief filed
4 Id. ¶ 7.
5 Id. ¶ 8.
6 Id. ¶ 13.
7 Id. ¶ 16.
8 Id. ¶15 (alteration in original) (quoting UTAH CODE § 78B-2-
210(1)(a)).
9 Id. ¶¶ 13, 16.
10 Id. ¶¶ 17–18. Our grant of certiorari did not encompass the
issue of whether the court of appeals correctly reversed the trial
court‘s grant of summary judgment in favor of Q-2 on the Hugheses‘
adverse possession claim.
11 See id. ¶¶ 19–20 (Orme, J., concurring).
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by a coalition of title companies (collectively, Title Companies)
urging us to grant Q-2‘s petition, which we did.
Standard of Review
¶7 We granted certiorari in this case to review whether the
court of appeals correctly held that property transfers by operation
of law at the time the elements of boundary by acquisition are
satisfied.12 The determination of when title transfers under this
doctrine requires an ―interpretation[] of common law principles,‖
which we review for correctness.13 We have jurisdiction pursuant to
Utah Code section 78A-3-102(3)(a).
Analysis
¶8 The parties ask us to decide at what point in time a party
obtains title under boundary by acquiescence. While we have not yet
expressly resolved this issue, we have necessarily determined in our
prior boundary by acquiescence cases that title transfers by
operation of law at the time the elements are met and prior to
judicial adjudication. This corresponds precisely with the way title is
transferred under the related doctrine of adverse possession.
Although Q-2 and the amici have invited us to deviate from this
precedent on policy grounds, the policy goals they put forth likely
cannot be achieved by our ruling in this case and, regardless, are
outweighed by competing policy goals.
¶9 We discuss these issues in turn, beginning first with our
prior caselaw related to the transfer of title in boundary by
acquiescence cases, finding that in those cases we necessarily
determined that title transferred by operation of law without judicial
involvement. We then confirm our boundary by acquiescence
jurisprudence on this issue by looking to the treatment of title
transfer under the closely related doctrine of adverse possession.
Finally, we address the policy considerations suggested by the
parties.
12 See John Holmes Constr., Inc. v. R.A. McKell Excavating, Inc., 2005
UT 83, ¶ 6, 131 P.3d 199 (―On certiorari, we review the decision of
the court of appeals, not the trial court.‖).
13 Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT
112, ¶ 18, 38 P.3d 291.
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Opinion of the Court
I. The Weight of Legal Authority Instructs that Title Is Granted
by Operation of Law
A. In Our Prior Boundary by Acquiescence Cases, We Have Held
that Parties Obtain Title by Operation of Law and Not by
Judicial Decree
¶10 Although our precedent on this issue is limited, it is
unmistakable: title is obtained by operation of law at the time the
elements of boundary by acquiescence are satisfied. The doctrine of
boundary by acquiescence has been recognized in Utah since at least
1887.14 The elements are well established,15 and the parties do not
dispute that Q-2 successfully proved its claim to the property under
the doctrine before the trial court. The only issue is when, exactly,
Q-2 should be deemed to have acquired title to the disputed
property. We have previously determined that title under the
doctrine of boundary by acquiescence transfers by operation of law,
not by judicial order. Although our prior cases could have been more
explicit in addressing this issue, the decisions‘ import is clear, and
we take this opportunity to reaffirm our precedent.
¶11 In two cases, Brown v. Peterson Development Co.,16 and RHN
Corp. v. Veibell,17 we necessarily determined that title is conferred by
operation of law at the time the elements of boundary by
acquiescence are satisfied.18 The court of appeals correctly noted that
14 See Suitzgable v. Worseldine, 15 P. 144, 144–45 (Utah 1887)
(―[T]hey invoke the principle that boundary lines long acquiesced in
conclusively establish that they are the true boundaries, and estop
adjoining proprietors from disputing them. We recognize the
principle . . . .‖).
15 ―[E]stablishment of boundary by acquiescence requires
(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 period of at least 20 years, (iv) by adjoining landowners.‖ Jacobs v.
Hafen, 917 P.2d 1078, 1081 (Utah 1996).
16 622 P.2d 1175 (Utah 1980).
17 2004 UT 60, 96 P.3d 935.
18 A third, earlier case also touched on this issue in express dicta.
See King v. Fronk, 378 P.2d 893, 896–97 (Utah 1963). After deciding
the boundary issue before the court, Chief Justice Henriod added a
discussion focused on what the required time should be to satisfy the
―long period of time‖ element. Id. In so doing, he implicitly assumed
that the passage of that time—regardless of the length that would be
(Continued)
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―a recognition that title had transferred by operation of law at the
time the elements of the doctrine were met—and before a judicial
ruling or order was entered—was essential to [our] disposition of the
questions presented.‖19 For a decision to become precedent and
trigger stare decisis, ―it must be (1) [a] deliberate or solemn decision
of a court or judge [2] made after argument of a question of law
fairly arising in a case, and [3] necessary to its determination.‖20 As
discussed below, in both Brown and Viebell, the issue of whether and
when a party obtained title was a central issue argued by the parties
and necessary to our determination of the cases. Those decisions are
accordingly binding precedent, and Q-2 has not requested that we
overturn them.21
¶12 First, in Brown v. Peterson Development Co., a determination
of whether a party‘s predecessor-in-interest had obtained title by
boundary by acquiescence prior to litigation was both central and
necessary to our ultimate holding. In a dispute between a developer
and its neighbors, the developer claimed ownership of all property
up to an old fence line by virtue of a quitclaim deed executed by its
predecessor-in-interest, Reynold Johnson.22 We found that the
undisputed evidence showed that all parties (and their predecessors-
in-interest) had acquiesced in the fence boundary for more than forty
years.23 Accordingly, we held that the defendants‘ ―legal title to any
part of the disputed strip of land had been extinguished when [Mr.]
Johnson‘s occupancy and possession had ripened into a legal title.‖24 This
―ripening‖ of title left the defendants with ―only the bare record
required—would be sufficient on its own to grant title, stating that a
―persistent fence, nothing more, [can] ripen into title.‖ Id. at 896
(emphasis added).
19 Q-2, LLC v. Hughes, 2014 UT App 19, ¶ 12, 319 P.3d 732.
20Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 19 n.17, 270
P.3d 430 (alterations in original) (internal quotation marks omitted).
21Even if Q-2 had, we would not because to do so would create
an unnecessary and baseless distinction between the doctrines of
boundary by acquiescence and adverse possession, infra Part I.B, and
the policy arguments put forth by Q-2 and the amici for
reconsidering our precedent are not persuasive, infra Part II.
22 Brown, 622 P.2d at 1176–77.
23 Id. at 1177.
24 Id. (emphasis added).
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Q-2 v. HUGHES
Opinion of the Court
title‖ to the property.25 We ordered title to be quieted in the
developer because its predecessor-in-interest, Mr. Johnson, ―had
acquired title to the disputed strip of land by operation of law under
the doctrine of boundary by acquiescence‖ and had transferred that
title to the developer by quitclaim deed—years before any lawsuit
was filed.26 Thus, we held in Brown that a party could acquire title to
disputed property by operation of law and transfer that title—all
prior to and without judicial involvement.
¶13 The second case, RHN Corp. v. Veibell, also required us to
decide whether a party had obtained title by operation of law prior
to litigation. There, the parties had ―acquiesced in the fence as a
boundary beginning in 1938 and continuing at least up until either
1979 or 1981,‖ when the plaintiff, Mr. Veibell, ―discovered the true
location of the record boundary.‖27 The defendant argued that this
discovery resulted in Mr. Viebell‘s subsequent acquiescence to the
record boundary, defeating his claim.28 We rejected this argument.
Although we noted that Mr. Viebell ―may not have acquiesced in a
fence as a boundary after the time he discovered that the record
boundary line did not correspond with the fence line,― we found that
―[Mr.] Veibell and his predecessors-in-interest acquiesced in the
fence for a long period of time prior to his discovery of the true
record boundary.‖29 We ultimately held that Mr. Viebell‘s
―occupancy and possession for a long period of time ‗ripened into a
legal title‘ long before he discovered the actual location of the record
boundary‖ and, consequently, long before the quiet title action was
filed.30 Again in this case, as in Brown, we held that a party‘s
possession had ripened into title years before a lawsuit was ever
filed. And, as in Brown, this holding was necessary to our ultimate
resolution of the case.
¶14 A fair reading of these cases reveals that we held that the
parties obtained title by operation of law at the time the elements of
boundary by acquiescence were satisfied, without need for any
25 Id.
26 Id. at 1177–78.
27 Veibell, 2004 UT 60, ¶ 30.
28 Id. ¶ 31.
29 Id. (discussing and applying Staker v. Ainsworth, 785 P.2d 417,
420 (Utah 1990)).
30 Id. ¶ 30 (quoting Brown, 622 P.2d at 1177–78).
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judicial involvement. In both cases, we necessarily determined that a
party had obtained title years prior to any litigation. The precedent
found in Brown and Veibell controls the issue before us, and we take
the opportunity today to reaffirm our prior decisions by explicitly
stating that the doctrine of boundary by acquiescence grants title by
operation of law when its elements are met. The doctrine
simultaneously extinguishes the previous owners‘ legal title and
leaves them with only ―bare record title.‖ To be sure, there will be
cases in which judicial adjudication becomes necessary to resolving
disputes, but a judicial adjudication of a boundary dispute does not
itself confer title. Rather, it merely determines the prior point at
which title vested.31
B. The Way in Which Courts Treat the Transfer of Title in Adverse
Possession Cases Supports the Conclusion that Title in Boundary by
Acquiescence Cases Is Transferred by Operation of Law
¶15 Our decision to follow and affirm our precedent in Brown
and Veibell on the transfer of title under the doctrine of boundary by
acquiescence is supported by our and other courts‘ treatment of ―its
sister doctrine of adverse possession.‖32 Adverse possession, like
31 This reasoning defeats Q-2‘s secondary argument that the
standard of proof we have set for boundary by acquiescence cases—
clear and convincing—suggests that judicial review is essential to a
boundary by acquiescence claim. It is the existence of the facts
supporting the elements of the doctrine, and not their clear and
convincing exhibition before a court, that establishes title. See
Colquhoun v. Webber, 684 A.2d 405, 410 (Me. 1996); Mahoney v. Tara,
LLC, 107 A.3d 887, 891 (Vt. 2014) (―In other words, although an
adverse party bears the burden of proving the elements of [the
doctrine], . . . her action, if successful, does not confer title but rather
recognizes title vested independently of the judgment.‖). A high
burden of proof has not prevented other courts from determining
that title transferred by operation of law under the related doctrine
of adverse possession. See, e.g., Celebration Worship Ctr., Inc. v. Tucker,
35 N.E.3d 251, 254–55 (Ind. 2015) (holding that a homeowner
―establish[ed] by clear and convincing proof that the homeowner‘s
immediate predecessor in title adversely possessed and obtained fee
simple title to the disputed real estate by operation of law‖).
32 Brown v. Brodell, 756 N.W.2d 779, 782 (N.D. 2008); accord
Essential Botanical Farms, 2011 UT 71, ¶ 22 (describing boundary by
acquiescence as a legal doctrine ―that may deprive a person of fee
simple ownership in real property‖ and stating that boundary by
(Continued)
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Opinion of the Court
boundary by acquiescence, is a common law doctrine originating in
England.33 Indeed, the doctrine of boundary by acquiescence
―developed from the cause of action for adverse possession.‖34
There are generally two forms of adverse possession: long-term and
short-term.35 Long-term adverse possession, the most common form
of the doctrine, allows a party to obtain title to property after being
in ―(1) actual, (2) open and notorious, (3) hostile, (4) exclusive, and
(5) continuous possession of the land for the statutory period,
usually about twenty years.‖36 An apparent minority of states have a
short-term adverse possession doctrine, either in addition to the
long-term form or in place of it.37 Short-term adverse possession has
the same general elements as the long-term form with two major
differences: an additional requirement—payment of property taxes
or a claim based on color of title—and a shortened possession
period—usually five to seven years instead of twenty.38
¶16 Despite the widespread acceptance of the two forms of
adverse possession throughout the United States, and its application
in literally thousands, if not tens of thousands, of different factual
scenarios, we have not found, and counsel could not point us to, any
case from any jurisdiction requiring judicial adjudication to confer
title by adverse possession. Instead, there is overwhelming support
for the contrary principle: title is conferred by operation of law and
acquiescence, prescriptive easements, and adverse possession are
―related real property doctrines‖).
33 James H. Backman, The Law of Practical Location of Boundaries
and the Need for an Adverse Possession Remedy, 1986 B.Y.U. L. REV. 957,
958 (1986).
34 42 CAUSES OF ACTION 2D 489, § 12 (2009). Some states even
blend the two doctrines together in certain situations. See, e.g.,
Buckner v. Hosch, 987 So. 2d 1149, 1152 (Ala. Civ. App. 2007)
(discussing ―the hybrid form of adverse possession applicable in
boundary-line disputes‖).
35 Backman, supra note 33, at 959.
36Id. at 959 & n.15 (―Forty-one states have this type of adverse
possession.‖).
37 Id. at 960–61, 961 nn.27–28.
38 Id. at 960–61.
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―[n]o judicial action is necessary.‖39 Indeed, our own adverse
possession jurisprudence has long accepted this rule.40
¶17 ―Utah has no long-term adverse possession statute,‖41
leaving us with only the short-term form of adverse possession. We
39 Murdock v. Zier, 137 P.3d 147, 152 (Wyo. 2006); see, e.g., Gorte v.
Dep’t of Transp., 507 N.W.2d 797, 801 (Mich. Ct. App. 1993) (―Thus,
assuming all other elements have been established, one gains title by
adverse possession when the period of limitation expires, not when
an action regarding the title to the property is brought.‖); Williams v.
Frymire, 186 S.W.3d 912, 922 (Mo. Ct. App. 2006) (―Adverse
possession for the statutory period establishes an indefeasible legal
title in the possessor, the title of the record owner is divested, and
that title is not lost by abandonment, or failure to assert it after it has
been perfected.‖ (internal quotation marks omitted)); Gorman v. City
of Woodinville, 249 P.3d 1040, 1042–43 (Wash. Ct. App. 2011) (―Once
an adverse possessor has fulfilled the conditions of the doctrine, title
to the property vests in his favor. The adverse possessor need not
record or sue to preserve his rights in the land.‖ (footnote omitted));
3 AM. JUR. 2D Adverse Possession § 235 (―An adverse possession of
land for the period of limitation operates of itself as a grant of all
adverse title and interests to the occupants. No judicial action is
necessary to effectuate transfer.‖ (footnote omitted)).
40 In an early adverse possession case not cited by the parties, we
necessarily held that title passed by operation of law prior to a
judicial adjudication—just as with the boundary by acquiescence
cases discussed above. See Rydalch v. Anderson, 107 P. 25, 28–29 (Utah
1910) (―[W]hen the [adverse possession] statute in force prior to 1888
had fully run, the right to the property held by adverse possession
became a vested right, which could not be affected by a subsequent
change of the law.‖). Other adverse possession cases confirm this
holding. See, e.g., Elder v. Nephi City ex rel. Brough, 2007 UT 46, ¶ 19,
164 P.3d 1238 (stating that a party may ―obtain[] an interest in land
by operation of law through prescription or adverse possession,‖
though we declined in that case to allow a third party to establish the
extent of the interest potentially acquired); Toltec Ranch Co. v.
Babcock, 66 P. 876, 878 (Utah 1901) (―[W]here such property is held
and possessed adversely to the legal title for [seven years], the party
so holding and possessing acquires the title to the property by
adverse possession.‖).
41 Jacobs, 917 P.2d at 1080.
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Opinion of the Court
recognize, however, that ―short-term adverse possession [often] does
not help resolve boundary disputes,‖ because ―[o]ne who possesses
land for a long period without having legal title, but believing he is
the actual owner, is unlikely to think of procuring a tax description
in order to pay taxes on the land‖ because ―he will think that he is
already paying taxes on it.‖42 ―Utah property owners must [usually]
look to other methods of resolving such disputes,‖ including
boundary by acquiescence.43 Boundary by acquiescence thus ―fills an
important gap in [Utah] law‖44 that exists ―[b]ecause Utah has no
long-term adverse possession statute.‖45 Our boundary by
acquiescence doctrine ―serves as a primary legal mechanism for
settling boundary disputes‖ in Utah46—disputes that would be
―typical [long-term] adverse possession case[s]‖ in other states.47
42 Backman, supra note 33, at 961–62.
43 Id. at 962. Boundary by acquiescence exists as one of three
major doctrines employed in Utah to resolve boundary disputes,
alongside boundary by estoppel and boundary by agreement. See
Staker v. Ainsworth, 785 P.2d 417, 423 n.4 (Utah 1990).
44 Staker, 785 P.2d at 423.
45 Jacobs, 917 P.2d at 1080.
46 Id.
47 Backman, supra note 33, at 969–70. An example of how other
states apply the doctrine of adverse possession to boundary disputes
is found in the recent Wyoming Supreme Court case of Graybill v.
Lampman. 332 P.3d 511 (Wyo. 2014). The facts and claims of the case
are remarkably similar to those before us today: two parties ended
up in a dispute when it was discovered an old fence did not follow
the record boundary. Id. at 515–16. When a new party, the
Lampmans, obtained the parcel upon which the fence was erected,
they proceeded to use the property beyond the fence line up to the
record boundary. Id. at 517–18. The Lampmans‘ neighbors, the
Prados, claimed that the parties and their predecessors-in-interest
had accepted the fence as a boundary for over twenty years and that
the Prados had gained title to the property lying between the fence
and the record boundary under the doctrine of adverse possession.
Id. at 519. The Lampmans responded that, even if the Prados had
acquired title, they had re-aquired title through their own
subsequent adverse possession of the property, beginning when they
purchased the land. Id. The Wyoming Supreme Court agreed that
the Prados had acquired possession after twenty years had expired,
(Continued)
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¶18 The historical connection between adverse possession and
boundary by acquiescence, coupled with the similarities between the
two doctrines‘ application in nearly identical factual scenarios,
compels a similar method of transferring title. The doctrines work in
much the same manner,48 ‖rest[] upon the same reason[s],‖49 and
serve the same purpose—―putting to rest titles to property and
prevent[ing] protracted and often belligerent litigation.‖50 Indeed,
we have noted the similarities between the doctrines in prior cases
and have worked to ―promote consistency and predictability among
these related real property doctrines.‖51 We therefore see no
principled way of distinguishing between the doctrines on the issue
of title transfer. Thus, acquisition of title under the doctrine of
noting that no judicial action was necessary to establish title. Id. at
522 & n.15. The court then remanded for the trial court to determine
―whether the Lampmans adversely possessed the disputed parcel
back from the Prados.‖ Id. at 522. Our holding today similarly allows
for the possibility that ―[o]nce real property is vested by adverse
possession [or boundary by acquiescence], title can [then] be
divested by conveyance, descent[,] or operation of law‖ as a result of
another‘s prescriptive use. Id.
48 Both doctrines grant title to property based on a party‘s long-
term possession of the property. See Hammond v. Johnson, 66 P.2d 894,
900 (Utah 1937), superseded on other grounds by statute, UTAH CODE §
73-3-1 (―One may obtain . . . title by disseisin of the owner and use
and possession of the [property] for the statutory time, commonly
called ‗adverse possession.‘‖).
49Holmes v. Judge, 87 P. 1009, 1012 (Utah 1906) (―The [doctrine of
boundary by acquiescence] seems to have been adopted as a rule of
repose, with a view to the quieting of titles, and rests upon the same
reason as our statute prohibiting the disturbance of an adverse
possession which has continued for 20 years.‖).
50 King, 378 P.2d at 896.
51 Essential Botanical Farms, 2011 UT 71, ¶ 22 (adopting the clear
and convincing standard of proof in boundary by acquiescence cases
in order to conform with the standard used in prescriptive
easements and at least some adverse possession cases); see also
Hobson v. Panguitch Lake Corp., 530 P.2d 792, 795 (Utah 1975)
(defining the ―long period of time‖ element of boundary by
acquiescence as requiring twenty years, in order to ―relate[] to the
common law prescriptive period‖).
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Q-2 v. HUGHES
Opinion of the Court
boundary by acquiescence operates in the same manner as it does
under the doctrine of adverse possession—by operation of law, not
by judicial fiat.52 And because title is vested as soon as the elements
are satisfied just as if title had been transferred by deed, ―title
remains vested until it passes by grant, descent, adverse possession,
or some other operation of law.‖53 A different result would both
contravene our clear precedent and create an unnecessary and
unjustified distinction between the two closely related doctrines of
boundary by acquiescence and adverse possession.
II. The Policies Underlying the Doctrine of Boundary by
Acquiescence and Other Related Doctrines Favor the Transfer of
Title by Operation of Law
¶19 Both our boundary by acquiescence jurisprudence and our
and other state courts‘ uniform treatment of the related doctrine of
adverse possession support a determination that title is conferred by
operation of law under the boundary by acquiescence doctrine. Q-2
and the amici nevertheless argue that, as a matter of policy, title
should transfer under the doctrine of boundary by acquiescence only
at the time of a judicial determination. Their policy arguments are
best summarized by Judge Orme‘s concurrence in the case below:
[T]he idea that legal title to real property would be
deemed to have shifted pursuant to doctrines like
boundary by acquiescence or adverse possession 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
52 See Thomson Reuters/West, Boundaries: Adverse Possession
Defeats Border by Acquiescence, 43-Mar REAL EST. L. REP. 7, 7 (2014)
(―Adverse possession and boundary by acquiescence are two
common doctrines under which the lines between properties can
change without any judicial determination, written document[,] or
recorded instrument.‖).
53 Goldman v. Quadrato, 114 A.2d 687, 690 (Conn. 1955).
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that is anathema to prospective real estate buyers as
well as title insurers.54
These concerns are valid. While adverse possession and boundary by
acquiescence ―resolve many disputes, the fact that they are ‗off
record‘ also causes a host of problems.‖55 Although we recognize the
impact prescriptive claims to property may have on a title record
system, we are cautious when we are asked to depart from well-
grounded precedent. For the reasons set forth below, we are not
persuaded that a deviation from the overwhelming weight of
authority would prove a better approach than the one long in place.
¶20 Under Q-2‘s proposal, a party would not obtain title under
the doctrine of boundary by acquiescence until the moment a judicial
decree is entered. We see at least two problems with this approach.
First, boundary by acquiescence exists to ―avoid[] litigation and
promot[e] stability in land ownership‖56 by allowing parties to
―apply [the doctrine] to resolve matters outside of court.‖57 Q-2‘s
proposal essentially adds a fifth element to the doctrine: judicial
adjudication. Under Q-2‘s suggested approach, a party could not
obtain title under the doctrine of boundary by acquiescence without
involving the courts. Such a rule would discourage out-of-court
settlement of boundary disputes, and would, in fact, create an
incentive to litigate that is antithetical to the purpose for which the
doctrine exists: a ―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.‖58 To be sure, the goal of
54 Q-2, LLC v. Hughes, 2014 UT App 19, ¶ 19, 319 P.3d 732 (Orme,
J., concurring) (footnote omitted).
55 Thomson Reuters/West, Boundaries: Adverse Possession Defeats
Border by Acquiescence, 43-MAR REAL EST. L. REP. 7, 7 (2014); accord
Hobson v. Panguitch Lake Corp., 530 P.2d 792, 794 (Utah 1975) (―[I]t
must be appreciated that recognition of such boundaries does have
the effect of transferring ownership of disputed strips of property
without compliance with the statute of frauds; and it may be at
variance with recorded conveyances.‖ (footnote omitted)).
56 Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990).
57Elliot R. Lawrence, Settling Boundary Disputes Using Utah’s
Boundary by Acquiescence Doctrine, 27-Dec UTAH B. J. 46, 50 (2014).
Staker, 785 P.2d at 423 (alteration in original) (internal quotation
58
marks omitted).
15
Q-2 v. HUGHES
Opinion of the Court
promoting out-of-court resolution of boundary disputes cannot
always be realized, especially in a case like the one before us today.
But the fact that some cases require judicial involvement does not
mean that we should impose the requirement of a judicial decree
and thereby increase judicial involvement in boundary disputes.59
¶21 The other obvious problem we see with Q-2‘s approach is
that requiring a judicial order to transfer title protects only the first
party to claim the property, no matter how long that party has ―slept
on [its] rights.‖60 Under this approach, because a judicial decree
confirming a boundary would be entered regardless of intervening
events or the passing of years—as happened between the Hugheses
and Dahl—a party could prescriptively claim property decades after
its claim to the property arose.61 It seems unfair to honor only the
first party‘s prescriptive claim to title—refusing to recognize another
party‘s subsequent, lengthy, productive, and uninterrupted use of
the land62—simply because that party got there first. We have long
59 The Title Companies also suggest that allowing title to transfer
by operation of law, as opposed to transfer after judicial
adjudication, ―creates the likelihood of lawsuits for rescission based
on mutual mistake, claims for negligent misrepresentation, actions
for breach of warranty[,] and so forth.‖ First, as discussed below, it is
not the timing of title transfer that creates the likelihood of these
types of lawsuits, but the fact that prescriptive claims to title exist.
Second, it seems inherently contradictory to argue that encouraging
litigation in order to protect a property interest helps reduce
litigation.
60 Glenn v. Player, 326 P.2d 717, 719 (Utah 1958).
61 See Dahl Inv. Co. v. Hughes, 2004 UT App 391, ¶¶ 11–13, 101
P.3d 830 (rejecting the Hugheses‘ statute of limitations argument and
holding that, although the fence had deteriorated completely by
1965, ―Dahl Investment‘s failure to maintain a visible marker of the
boundary after 1965 does not defeat the claim,‖ and that Dahl was
not required ―to show continuing compliance with the boundary by
acquiescence requirements,‖ even though the case was brought
almost four decades after the boundary had been established); see
also Cottrell v. Pickering, 88 P. 696, 700–01 (Utah 1907) (suggesting that
the doctrine of laches does not apply in boundary by acquiescence
cases because ―[i]f there are any laches, they are to be imputed as
much to one [party] as to the other‖).
62See 142 AM. JUR. PROOF OF FACTS 3D 349 § 2 (2014) (―One often-
repeated justification is that adverse possession bars stale claims by
(Continued)
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recognized that ―equity aids the vigilant,‖ and ―a court of equity is
reluctant to reward a party who has been dilatory in seeking his
remedy.‖63 Holding that title is conferred by operation of law
encourages parties to assert their rights—although one party may
obtain property through boundary by acquiescence, if it then sleeps
on its rights by allowing the boundary monument to deteriorate and
the record title holder to occupy and use the property, the holder of
―bare record title‖ may be able to reclaim legal title to the property.64
¶22 It has long been the case under Utah law that there will be
many interests in land that may not be reflected in the records.
Indeed, the potential for off-record interests has been deliberately
built into our system of property law through decades of acceptance
and reliance on doctrines such as boundary by acquiescence,
boundary by agreement, boundary by estoppel, adverse possession,
and prescriptive easements. It is the existence and use of these
doctrines that leave the record incomplete—not the timing of
transfer of title. And our acceptance of these doctrines is not a
rejection of the benefits of our record title system, but a recognition
that, at least in certain circumstances, there are other values that can
outweigh those benefits. Without a complete overhaul of our entire
legal owners of land as against strangers who have taken possession
of the owners‘ properties. Another justification suggests that such
bars punish true owners who, through their own fault or neglect,
failed to assert their rights against adverse claimants. . . . Courts have
also noted that adverse possession may promote efficient land
development by seeking to reward those who will make productive
use of land. Adverse possession may also serve to protect the
reliance interests of either the adverse possessor or others dealing
with the adverse possessor that are justifiably based on the status
quo.‖ (footnotes omitted)).
63 Jacobson v. Jacobson, 557 P.2d 156, 158–59 (Utah 1976).
64 This case appears to be a perfect example: although Q-2 was
apparently aware of the Dahl litigation and sent a letter claiming the
Hugheses were trespassing on its property—a statement at odds
with its assertion in court that it did not own the property until the
later judicial order—it never rebuilt the dilapidated fence and waited
several years before filing a quiet title action. Q-2 has provided us
with no reason to distinguish between its prescriptive ownership of
the property and the Hugheses‘, and our principles of equity suggest
we not reward Q-2 for sleeping on its rights.
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Q-2 v. HUGHES
Opinion of the Court
system of common law property doctrines, something neither party
has suggested, modifying just one of these doctrines—boundary by
acquiescence—in the way proposed by Q-2 does little to address the
issue of incomplete land records. Such a change would only disrupt
legitimate expectations and undermine vested property rights. The
benefits of a completely accurate title record system—however
desirable when viewed in isolation—are an insufficiently compelling
reason to upset the reliance interests of property holders across the
entire state in this manner.
¶23 As we have stated, we are cautious when asked to depart
from well-grounded precedent. This is especially true when the
policy arguments provided for the departure are against the full
weight of legal authority. Here, there are strong, countervailing
policies supporting our current system of property law, a system
that property owners throughout Utah rely upon. Accordingly, the
policy arguments put forth by Q-2 and the Title Companies do not
persuade us to depart from our precedent on the doctrine and its
policy. Although we recognize that litigation may sometimes be
necessary, our holding today allows parties the opportunity to
acquire property through the doctrine of boundary by acquiescence
without going to court.
Conclusion
¶24 Today, we reaffirm and make express our prior holdings on
the timing of title transfer under the doctrine of boundary by
acquiescence. Our prior cases necessarily held that the doctrine
confers and settles title by operation of law, not by judicial decree.
Transfer by operation of law correlates with and is confirmed by the
related doctrine of adverse possession. The policy considerations put
forth by Q-2 and the amici do not justify a departure from this result.
We therefore hold that the boundary by acquiescence doctrine
confers title by operation of law at the time the elements of the
doctrine are satisfied and that a judicial adjudication of a boundary
dispute does not grant title, but merely recognizes the title that has
already vested. The decision of the court of appeals is affirmed.
18