Anderson v. Fautin , 379 P.3d 1186 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 22
IN THE
SUPREME COURT OF THE STATE OF UTAH
TERRAL E. ANDERSON,
Petitioner,
v.
JANET FAUTIN,
Respondent.
No. 20140664
Filed May 31, 2016
On Certification from the Court of Appeals
Sixth District, Junction Dep‘t
The Honorable Paul D. Lyman
No. 070600002
Attorneys:
Marcus Taylor, Richfield, for petitioner
Tex R. Olsen, Richfield, for respondent
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.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 This case raises a single legal question: does the occupation
element in our boundary by acquiescence doctrine require a claimant
to prove that both owners of adjoining land occupied their respective
parcels up to a visible line? Terral E. Anderson, the petitioner, owns
a vacant parcel adjoining respondent Janet Fautin‘s parcel. Mr.
Anderson failed to visit or inspect his property for a twenty-six year
ANDERSON v. FAUTIN
Opinion of the Court
period. During that time, Ms. Fautin occupied her parcel up to a
fence dividing the properties. A subsequent survey showed that the
fence encroached into Mr. Anderson‘s vacant parcel.
¶ 2 As the record titleholder, Mr. Anderson sought to quiet title
to the disputed strip created by the fence‘s encroachment. In
response, Ms. Fautin claimed title under the doctrine of boundary by
acquiescence. The district court granted summary judgment in favor
of Ms. Fautin, concluding that Mr. Anderson‘s occupancy was
immaterial to the element of occupation. Mr. Anderson appealed,
arguing that the occupation element required Ms. Fautin to prove
occupancy on both sides of the fence. The court of appeals affirmed.
We granted certiorari and, after reviewing our boundary by
acquiescence jurisprudence, we also affirm.
Background
¶ 3 The parties do not dispute the facts. Terral E. Anderson, the
petitioner, and Janet Fautin, the respondent, own adjoining
properties in Piute County, Utah. A fence, which is 2,000 feet long
and runs from a highway to a large curve in the Sevier River, divides
the properties, with Mr. Anderson‘s property directly south of Ms.
Fautin‘s property. John A. Hansen, a previous owner of Ms. Fautin‘s
property, installed the fence sometime before 1930. The Hansen
family, including John A. Hansen and his sons, owned the property
from 1930 to 1957—a period of twenty-seven years. During that time,
they lived on the property in the summer and had several milk cows.
They built a cabin and established a designated milking area directly
north of the fence.
¶ 4 In 1987, Ms. Fautin purchased the property and used it for
grazing livestock. In 2000, she replaced the fence when it became
deteriorated. Significantly, the parties do not dispute that Ms. Fautin
has occupied her property up to the fence since she first purchased
the property.
¶ 5 Mr. Anderson purchased his property in 1968. He did
nothing with it for twenty-six years, until 1994 when he retired. He
explains this period of absence by noting that he was ―on the ocean
most of the time.‖ In 2005, Mr. Anderson had his property surveyed.
The survey disclosed that the fence did not align with the legal
boundary of the property. Two years later, he filed this action,
asking the court to quiet title to the disputed property, which lies
between the fence and the surveyed boundary line.
¶ 6 The parties filed cross-motions for summary judgment, and
the district court granted Ms. Fautin‘s motion, finding that she had
established a boundary by acquiescence. The district court noted that
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Opinion of the Court
there was an issue of fact regarding the occupancy of Mr. Anderson‘s
land,1 but that the issue was ―immaterial, since the law states that
occupancy can occur with activity on only one side of a disputed
boundary.‖ Mr. Anderson appealed the district court‘s interpretation
of this aspect of our boundary by acquiescence law. The court of
appeals upheld the district court‘s interpretation, concluding that the
occupancy element in our boundary by acquiescence doctrine does
not require the claiming party to show occupancy up to both sides of
a visible line.2 We granted certiorari on this single legal issue.3
Standard of Review
¶ 7 Mr. Anderson does not dispute the above facts but argues
that the court of appeals misread the occupation element in our
doctrine of boundary by acquiescence.4 We granted certiorari on
whether our boundary by acquiescence doctrine requires a claimant
to prove occupancy on both sides of a visible line. This is a question
of law that we review for correctness.5 We have jurisdiction pursuant
to Utah Code section 78A-3-102(3)(a).
_____________________________________________________________
1The district court noted ―that [Ms. Fautin] now asserts . . . that
[Mr. Anderson] and [his] predecessors used their land by raising
goats and/or placing pens and horses on the property.‖
2 Anderson v. Fautin, 2014 UT App 151, ¶ 22, 330 P.3d 108.
3 Mr. Anderson did not appeal the district court‘s conclusion that
the mutual acquiescence element of our boundary by acquiescence
rule was met. The district court concluded that it is ―well established
[in Utah] that acquiescence may be established by silence.‖ And,
therefore, it held that ―[Mr. Anderson], in spite of the nonuse of his
property, either knew or should have known [Ms. Fautin] was using
the disputed area up to the fence line. [Mr. Anderson] never objected
to [Ms. Fautin‘s] use of the disputed area. Accordingly, this Court
finds [Mr. Anderson‘s] silence, indolence, and failure to inspect his
property constitutes [sic] a mutual acquiescence in the disputed
boundary line.‖
4 See Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (noting that ―an
appellate court reviews a [lower] court‘s ‗legal conclusions and
ultimate grant or denial of summary judgment‘ for correctness‖
(citation omitted)).
5 See Torian v. Craig, 2012 UT 63, ¶ 13, 289 P.3d 479.
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ANDERSON v. FAUTIN
Opinion of the Court
Analysis
¶ 8 To establish a boundary by acquiescence, our prior caselaw
required a claimant to satisfy four elements: ―(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.‖6 This doctrine minimizes
litigation, ―promot[es] stability in landownership,‖7 and ―fills an
important gap in the law left unaddressed by other doctrines.‖8
¶ 9 Mr. Anderson argues that the first element of our boundary
by acquiescence doctrine—the occupation element—requires a
claimant to show occupation on both sides of a visible line. Ms.
Fautin, in response, claims that the occupation element requires a
claimant to show occupation only on his or her side of a visible line.
She also argues that the nonclaimant‘s occupancy is relevant, if at all,
only to the second element of boundary by acquiescence—the
mutual acquiescence element—which is an issue Mr. Anderson did
not appeal.
¶ 10 As the parties‘ arguments demonstrate, we have made
inconsistent articulations and applications of both the occupation
element and the mutual acquiescence element in our precedent. Our
inconsistent approach to the doctrine has largely resulted from the
influence of two related doctrines on boundary by acquiescence
disputes: boundary by agreement and adverse possession.
Consequently, to clarify what the occupation element of boundary
by acquiescence requires, we must consider the ways in which these
two related doctrines have shaped our boundary by acquiescence
jurisprudence.
¶ 11 As discussed below, we conflated boundary by acquiescence
with boundary by agreement in our early caselaw. This led us to
look for evidence of mutual occupancy in boundary by acquiescence
_____________________________________________________________
6Q-2 L.L.C. v. Hughes, 2016 UT 8, ¶ 10 n15, 368 P.3d 86 (citation
omitted).
7 Bahr v. Imus, 2011 UT 19, ¶ 35, 250 P.3d 56. (citation omitted); see
also Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990) (noting that
boundary by acquiescence ―derives from [the] realization, ancient in
our law, that peace and good order of society [are] best served by
leaving at rest possible disputes over long established boundaries.‖
(citation omitted)).
8 Staker, 785 P.2d at 423.
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Opinion of the Court
cases. It also encouraged this court to look for evidence from which
to imply consent by a nonclaimant to a boundary line. But our more
recent cases have properly separated boundary by acquiescence
from boundary by agreement, recognizing the close relationship
between the former doctrine and adverse possession. Under this
more recent caselaw, we have abandoned any mutual occupancy
requirement, finding the occupation element satisfied when a
claimant occupies his or her property up to a visible line.
Accordingly, to the extent our early cases required a claimant to
show that both parties occupied up to a visible line to satisfy the
occupation element, we here expressly disavow any such
requirement. Because the facts show that Ms. Fautin occupied her
parcel up to the fence, we affirm the court of appeals‘ judgment.
I. Our Early Cases Failed to Adequately Separate the Doctrine of
Boundary by Acquiescence from the Doctrine of Boundary by
Agreement
¶ 12 In our early caselaw, we failed to separate the doctrine of
boundary by acquiescence from the doctrine of boundary by
agreement. This approach to boundary by acquiescence disputes had
two unfortunate consequences: (1) it led this court to impose upon a
claimant a burden of showing that both adjoining landowners had
occupied up to a visible line; and (2) it led this court to distort the
mutual acquiescence requirement by focusing on evidence from
which to infer that a nonclaimant had consented to the location of a
boundary at a visible line. We have in our more recent caselaw
abandoned these initial approaches, including the mutual occupancy
requirement.
¶ 13 The conflation of boundary by acquiescence and boundary
by agreement in our early caselaw was caused, in part, by the close
conceptual relationship between the doctrines—both of which apply
to boundary disputes and look for acquiescence or agreement by
adjoining landowners.9 As noted above, boundary by acquiescence
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9 It is likely for this reason that other jurisdictions as well have
conflated the two doctrines. James O. Pearson, Jr., Annotation, Fence
as Factor in Fixing Location of Boundary Line–Modern Cases, 7 A.L.R. 4th
53 § 2[a] (1981) (―It has been said that the doctrine of boundary by
acquiescence is in chaotic condition. This confusion apparently
results from the intermingling of the doctrine of boundary by
acquiescence with that of boundary by parol agreement. Thus, the
rule that an agreement as to a boundary is valid only when
(Continued)
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ANDERSON v. FAUTIN
Opinion of the Court
requires occupation up to a visible line and acquiescence in that line
as a boundary by adjoining landowners.10 In comparison, the related
doctrine of boundary by agreement requires:
(1) an agreement between adjoining landowners, (2)
settling a boundary that is uncertain or in dispute, (3) a
showing that injury would occur if the boundary were
not upheld, and (4) where the doctrine is being invoked
against successors in interest, demarcation of a
boundary line such that a reasonable party would be
placed on notice that the given line was being treated as
the boundary line between the properties.11
¶ 14 We first began to conflate these two doctrines in Holmes v.
Judge.12 In that decision, we noted that
in all cases where the boundary is open, and visibly
marked by monuments, fences, or buildings, and is
knowingly acquiesced in for a long term of years, the
law will imply an agreement fixing the boundary as
located, and will not permit the parties or their
grantees to depart from such line.13
In subsequent cases, we relied on this ―implied agreement‖ language
to frame our boundary by acquiescence inquiry. This reliance
eventually led us to treat boundary by acquiescence claims as
subsidiary to boundary by agreement claims, applying the former
doctrine to imply a boundary agreement only if the claimant could
not marshal evidence of such an agreement.14
acquiescence in the agreement continues and, in some jurisdictions,
that this acquienscence [sic] must continue for the statutory period
has tended to obscure consideration of the fact that simple
recognition and acquiescence in an established boundary may fix
such boundary.‖(footnote omitted)).
10 See Bahr v. Imus, 2011 UT 19, ¶ 35, 250 P.3d 56.
11 Id. ¶ 41.
12 87 P. 1009 (Utah 1906).
13 Id. at 1014 (emphasis added).
14 See, e.g., Ringwood v. Bradford, 269 P.2d 1053, 1055–56 (Utah
1954) (concluding that the doctrine of boundary by acquiescence
applies ―[i]n the absence of a showing of an actual agreement‖). In
fact, it is worth noting that for a time we so conflated the doctrines
(Continued)
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Opinion of the Court
¶ 15 As a subsidiary doctrine that applied only where courts
could infer a boundary agreement, we began to rely on contract
principles—as articulated in boundary by agreement—to assess
boundary by acquiescence claims. This, in turn, laid the groundwork
for a mutual occupancy requirement, which required a claimant to
demonstrate that both adjoining landowners had occupied their
properties up to a visible line. After all, a court could not imply a
boundary agreement if one party to that agreement had never
occupied his or her property to become aware of and consent to a
visible line as the boundary.15 Accordingly, in Young v. Hyland,16 we
modified the boundary by acquiescence inquiry established in
Holmes to assess whether adjoining landowners ―occup[ied] their
respective premises up to a certain line.‖17
¶ 16 In subsequent cases, we relied on Young’s ―respective
premises‖ language to articulate our boundary by acquiescence
doctrine.18 And though we required a claimant to demonstrate that
both landowners occupied up to a visible line in these early cases,
we failed to adequately address the legal significance of the
nonclaimant‘s occupancy. This failure is significant in the context of
this appeal because the parties ask us to assess whether the
occupation element in our boundary by acquiescence doctrine
requires both parties to occupy up to a visible line. These early cases
that we referred to them interchangeably. See Hobson v. Panguitch
Lake Corp., 530 P.2d 792, 794 (Utah 1975) (referring to ―the doctrine of
boundary by acquiescence or agreement‖); Carter v. Lindner, 460 P.2d
830, 832 (Utah 1969) (referring to ―boundary line by acquiescence
under an oral agreement‖).
15 Thus, in Holmes we noted that ―the original owners lived
thereon for many years, and thus knew or must have known of the
fence and the claims of the respective owners, from what appeared
upon the ground at least.‖ 87 P. at 1011.
16 108 P. 1124 (Utah 1910).
17 Id. at 1126 (emphasis added). Young cited Rydalch v. Anderson,
107 P. 25 (1910), a boundary by agreement case, when it set forth this
―respective premises‖ language. See id. Consistent with this
language, we identified evidence showing mutual occupancy. See id.
at 1126–27.
18 See, e.g., Christensen v. Beutler, 131 P. 666, 667–68 (Utah 1913);
Binford v. Eccles, 126 P. 333, 335 (Utah 1912).
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Opinion of the Court
do little to illuminate this question because we did not enumerate
the boundary by acquiescence test into distinct elements at that
time.19 As a result, we did not address whether the nonclaimant‘s
occupancy was required to satisfy the occupation element or
whether it held independent legal significance.
¶ 17 In several of these early decisions, however, we treated the
nonclaimant‘s occupancy as relevant to whether the nonclaimant
acquiesced to a visible line as the boundary.20 These cases suggest
that the nonclaimant‘s occupancy was legally significant to the
nonclaimant‘s acquiescence. Specifically, these cases look to the
nonclaimant‘s occupancy to assess whether he received notice of the
putative boundary line. This approach is suggested in Holmes, where
we noted that ―the original owners . . . knew or must have known of
the fence and the claims of the respective owners, from what
appeared upon the ground at least.‖21 In this way, the mutual
occupancy requirement—which was created by our conflating the
doctrines of boundary by acquiescence and boundary by
_____________________________________________________________
19 Compare Young, 108 P. at 1126 (―[W]here the owners of
adjoining lands occupy their respective premises up to a certain line
which they recognized and acquiesced in as their boundary line for a
long period of time, they and their grantees will not be permitted to
deny that the boundary line thus recognized is the true line of
division between their properties.‖), with Bahr, 2011 UT 19, ¶ 35 (―A
successful invocation of boundary by acquiescence requires a
showing of the following four elements: ‗(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.‘‖ (citation omitted)).
20 See, e.g., Tanner v. Stratton, 139 P. 940, 940 (Utah 1914) (finding
that both claimant and nonclaimant ―occupied and cultivated his
[respective] parcel up to the fence, and neither claimed beyond it‖);
Christensen, 131 P. at 667 (noting that the nonclaimant‘s predecessor
in interest helped the claimant erect the fence by contributing costs,
and that ―[t]he evidence . . . shows that the fence was erected and
maintained on what had been recognized and accepted . . . as the
boundary line both [claimant] and [the nonclaimants‘] predecessors
in interest‖); Farr Dev. Co. v. Thomas, 122 P.906, 906 (Utah 1912)
(finding that the claimant had occupied up to a visible line and that
the nonclaimant had never claimed beyond the fence).
21 87 P. at 1011.
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Opinion of the Court
agreement—overlapped with the mutual acquiescence element in
these early cases.
¶ 18 Our failure to separate boundary by acquiescence from
boundary by agreement led to an additional unfortunate
consequence. Specifically, we began to require evidence from which
we could infer that a nonclaimant expressly consented to treat a
visible line as a boundary. This distorted the notion of acquiescence,22
which merely requires passive assent, to something more analogous
to acceptance in the contract context, which typically requires an
affirmative act.23 In Tanner v. Stratton,24 we emphasized the
significance of the nonclaimant‘s consent. There, we applied
boundary by acquiescence because the nonclaimant occupied up to a
visible line but never claimed beyond it.25 We concluded that ―this
indicate[d] not only a mere recognition and acquiescence in the old
fence line as and for a boundary line,‖ but also provided ―facts from
which consent [could] be implied.‖26 This statement emphasized the
relationship between acquiescence and consent.
¶ 19 Cases after Tanner likewise looked for evidence of consent.
In Hummel v. Young,27 we refused to apply boundary by
acquiescence because the claimant ―testified that he built the fence
himself in 1928 without consulting the adjoining owner . . . and that
she did not live on her lot at that time. Thus it would do violence to
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22See Acquiescence, THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE (5th ed. 2011) (―Passive assent or agreement
without protest.‖).
23 See Cal Wadsworth Constr. v. City of St. George, 898 P.2d 1372,
1376 (Utah 1995) (―An acceptance is a manifestation of assent to an
offer, such that an objective, reasonable person is justified in
understanding that a fully enforceable contract has been made.‖); see
also RESTATEMENT (SECOND) OF CONTRACTS § 69 cmt. a (AM. LAW.
INST. 1981) (―Ordinarily an offeror does not have power to cause the
silence of the offeree to operate as acceptance.‖).
24 139 P. 940 (Utah 1914).
25 Id. at 941.
26 Id.
27 265 P.2d 410 (Utah 1953).
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ANDERSON v. FAUTIN
Opinion of the Court
the evidence to imply an agreement here.‖28 And in Ringwood v.
Bradford,29 we concluded that the mere presence of a fence, coupled
with no acts inconsistent with acquiescence, was insufficient to raise
a conclusive presumption that the parties agreed on the boundary
line30—especially since the claimant provided no evidence ―of any
discussion as to the boundary line.‖31 In short, in these early cases
we would not imply a boundary agreement unless evidence
indicated that a nonclaimant had agreed to treat a visible line as a
boundary.
¶ 20 In summary, when we conflated boundary acquiescence
with boundary by agreement, we treated the former doctrine as a
subsidiary remedy concerned with implying a boundary agreement
where no direct evidence of an agreement was available. This led us
to focus on facts that could establish an implied agreement,
including facts supporting mutual occupancy and a nonclaimant‘s
affirmative consent to a visible line as a boundary. But as discussed
below, we have abandoned the implied agreement approach to
boundary by acquiescence disputes and made the nonclaimant‘s
occupancy immaterial to the occupation element.
II. Our More Recent Caselaw Has Separated the Doctrine of
Boundary by Agreement from the Doctrine of
Boundary by Acquiescence
¶ 21 Our more recent approach to boundary by acquiescence
cases is similar to the way we approach adverse possession disputes.
Under our current approach, the occupation element focuses on
whether the claimant‘s occupancy placed the nonclaimant on notice,
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28Id. at 412; see also Brown v. Milliner, 232 P.2d 202, 209 (Utah
1951) (declining to apply boundary by acquiescence because the
claimant built and relied upon a fence as the boundary without ever
discussing the matter with the adjoining landowner).
29 269 P.2d 1053 (Utah 1954).
30 See id. at 1054.
31 Id. In emphasizing the need for evidence of a nonclaimant‘s
consent, we distinguished boundary by acquiescence from adverse
possession, noting that ―[t]o hold that the defendant‘s belief,
reliance, and occupation up to the fence line, without more, are
controlling in a boundary dispute would be to ignore the statutory
guides for adverse possession since she did not pay taxes on that
portion of land which she claims.‖ Id. at 1056.
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whereas the mutual acquiescence element merely requires silence or
indolence by a nonclaimant who may or may not occupy his or her
property. In other words, we no longer require both parties to
occupy their respective parcels up to a visible line. Abandoning the
mutual occupancy requirement and treating boundary by
acquiescence claims as more akin to adverse possession claims
permits the former doctrine to minimize litigation and ―promot[e]
stability in landownership.‖32 And by ―fill[ing] a small but important
gap‖ in our boundary dispute law,33 boundary by acquiescence is
able to advance these purposes.
¶ 22 As noted, we have moved boundary by acquiescence
conceptually closer to adverse possession in our recent cases. This
transition from a boundary by agreement approach to an adverse
possession approach is first visible in Harding v. Allen.34 In that case,
the nonclaimant argued against boundary by acquiescence, claiming
that he never occupied his property.35 The court disagreed and
concluded that
[t]he occupancy intended as a requirement in satisfying the
rule may be actual or constructive, by an owner, who may
frequently or occasionally enter and physically occupy
his land, but who must be shown to have occupied it thus at
such reasonable intervals and during a period within which a
boundary by acquiescence might be acquired, as to have
knowledge of the physical facts that, through passage of time,
might create rights in others to his land under the doctrine,
with an opportunity to interrupt their fruition. We think
such opportunity was available here, particularly
where the property‘s situs is in a busy city.36
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32 Bahr v. Imus, 2011 UT 19, ¶ 35, 250 P.3d 56 (citation omitted); see
also Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990) (noting that
boundary by acquiescence ―derives from [the] realization, ancient in
our law, that peace and good order of society [are] best served by
leaving at rest possible disputes over long established boundaries.‖
(citation omitted)).
33 Staker, 785 P.2d at 423.
34 353 P.2d 911 (Utah 1960).
35 Id. at 913.
36 Id. at 913–14 (emphasis added). The court also emphasized the
fact that the nonclaimant‘s predecessor-in-interest approached the
(Continued)
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Opinion of the Court
Thus, in Harding we deemphasized the need to provide evidence of a
nonclaimant‘s consent to a visible line as the boundary. Constructive
occupancy gave the nonclaimant notice; notice coupled with a failure
to dispute the boundary showed acquiescence.37
¶ 23 This change altered the significance of the nonclaimant‘s
occupancy. As noted above, under contract theories of boundary by
acquiescence, mutual occupancy served as a logical predicate to two
parties establishing a boundary agreement. After Harding, the
claimant‘s occupancy up to a visible line satisfied the occupation
element by providing notice to the nonclaimant.38 In contrast, the
nonclaimant‘s occupancy largely dealt with whether the latter party
received notice and acquiesced to the arrangement.39 As we
claimant and secured written permission to operate a candy store on
the property. Id. at 913. The court concluded that this ―fact alone
would tend to point to occupancy although no building was situate
[sic] on the property.‖ Id.
37 This approach receives support from the following language in
Holmes v. Judge: ―the original owners lived thereon for many years,
and thus knew or must have known of the fence and the claims of
the respective owners, from what appeared on the ground at least.‖
87 P. 1009, 1011 (Utah 1906).
38 See, e.g., Ault v. Holden, 2002 UT 33, ¶ 17, 44 P.3d 781 (noting
that the occupation element was satisfied since the parties did not
dispute the claimant‘s occupancy up to the fence); Fuoco v. Williams,
389 P.2d 143, 145 (Utah 1964) (noting that the occupation element
was satisfied since the parties stipulated that the claimant occupied
her property up to the ditch); King v. Fronk, 378 P.2d 893, 894–95
(Utah 1963) (discussing the claimant‘s occupancy up to a visible line
to the exclusion of the nonclaimant‘s occupancy and concluding that
the claimant produced sufficient evidence to establish a boundary by
acquiescence); Johnson Real Estate Co. v. Nielson, 353 P.2d 918, 919–20
(Utah 1960) (nonclaimantsame); see also Bahr, 2011 UT 19, ¶ 36
(discussing ways in which a claimant could put a nonclaimant on
notice by occupying up to a visible line).
39 See, e.g., Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶ 30,
270 P.3d 430 (discussing the nonclaimant‘s occupancy and noting
that ―there is no evidence that the [nonclaimant] landowners
themselves ever ‗behaved in a fashion inconsistent with the belief
that the fence line was the boundary‘‖ (citation omitted)); RHN Corp.
v. Veibell, 2004 UT 60, ¶¶ 25–27, 96 P.3d 935 (discussing
nonclaimant‘s occupation to show that he never acted inconsistently
(Continued)
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discussed in the previous section, some early boundary by
acquiescence cases took a similar approach, treating the
nonclaimant‘s occupancy as legally relevant to acquiescence. In
Harding, for the first time, we unequivocally stated that the
nonclaimant‘s occupancy served this purpose.
¶ 24 The nonclaimant‘s occupancy, now used only to assess
acquiescence, took on an ever diminishing significance, as we
concluded that silence or indolence signaled acquiescence. In Lane v.
Walker,40 for example, we defined ―acquiescence‖ as ―more nearly
synonymous with ‗indolence,‘ or ‗consent by silence.‘‖41 In fact, the
only exception we have established to the rule finding mutual
acquiescence through silence is where nonclaimants could not access
their property.42 Thus, ―a do-nothing history on the part of the
parties concerned . . . result[s] in putting to rest titles to property.‖43
This change in how we treated a nonclaimant‘s occupancy was
accompanied by a change in the way we articulated our boundary
by acquiescence doctrine, as subsequent cases omitted Young’s
―respective premises‖ language from the occupation element.44
¶ 25 These linguistic and analytical changes to the doctrine of
boundary by acquiescence are supported by the principles
or otherwise objected to the fence as the boundary line); but see Orton
v. Carter, 970 P.2d 1254, 1257 (Utah 1998) (discussing both parties‘
occupancy in the context of a fence line that was not continuous,
thus relying on mutual occupancy to determine the boundary, where
the fence left some uncertainty); Staker, 785 P.2d at 420–21 (noting
that all parcels were occupied, in a case where several parties
disputed several boundaries, and discussing occupancy in relation to
mutual acquiescence).
40 505 P.2d 1199 (Utah 1973).
41 Id. at 1200.
42 See Carter v. Hanrath, 925 P.2d 960, 962 (Utah 1996).
43 King, 378 P.2d at 896.
44 E.g., Orton, 970 P.2d at 1257 (―Four requirements must be met
for a court to find a boundary by acquiescence: ‗(i) occupation up to
a visible line marked by monuments, fences, or buildings . . . .‘‖
(citation omitted)); Staker, 785 P.2d at 420 (―Historically, the doctrine
of boundary by acquiescence included four factors: ‗(1) occupation
up to a visible line marked by monuments, fences, or buildings . . .
.‘‖ (citation omitted)).
13
ANDERSON v. FAUTIN
Opinion of the Court
underlying our doctrine of adverse possession. Under our adverse
possession statute, ―one who claims property by adverse possession
must show that his use and possession of the property has been
actual, open and notorious, and continuous for the statutory period.
A claimant must also have paid all taxes levied on the property
during the statutory period.‖45 This ensures that ―one who claims
adversely must be able to show possession such that the legal
titleholder is put on notice of his claim.‖46 Thus, ―in order to
establish a boundary by adverse possession or by acquiescence the
circumstances must be such that the party who would be losing his
property either had or should have had knowledge that his property
was being claimed by another.‖47
¶ 26 Accordingly, the occupation element of boundary by
acquiescence corresponds with the ―actual, open and notorious‖48
requirements of adverse possession. The claimant must occupy his
or her property up to a visible line in such a manner as to place the
nonclaimant on notice that he or she claims the property so
occupied.49 In contrast, the mutual acquiescence element roughly
corresponds to the ―continuous for the statutory period‖50
requirement. Similar to a titleholder in relation to an adverse
possessor, a nonclaimant can object to the boundary at any time
within the twenty-year period to prevent the claimant‘s occupancy
from maturing into title.51 This close resemblance shows the
relationship between the doctrines.52
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45 Allred ex rel. Jensen v. Allred, 2008 UT 22, ¶ 17, 182 P.3d 337
(citation omitted).
46 Dillman v. Foster, 656 P.2d 974, 980 (Utah 1982).
47 Riter v. Cayias, 431 P.2d 788, 789 (Utah 1967) (emphasis added).
48 Allred ex rel. Jensen, 2008 UT 22, ¶ 17.
49 See Bahr, 2011 UT 19, ¶ 36.
50 Allred ex rel. Jensen, 2008 UT 22, ¶ 17.
51See Ault, 2002 UT 33, ¶ 22 (noting that the nonclaimant‘s act of
merely informing the claimant that he did not recognize a fence as
the true boundary line prevented the claimant‘s occupancy from
maturing into title).
52Recently, in Q-2 L.L.C. v. Hughes, we noted that prior cases
recognized the similarity between these two doctrines and ―worked
(Continued)
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Opinion of the Court
¶ 27 It also shows the marked difference between our more
recent approach to boundary by acquiescence and our previous
approach, which we discussed above. In particular, our previous
approach looked for evidence from which to imply an agreement.
This made mutual occupancy a necessary prerequisite to finding a
boundary agreement between adjoining landowners. It also made
evidence of a nonclaimant‘s consent key, for without acceptance by
the nonclaimant the court could not imply a contract. Now, we no
longer attempt to imply an agreement. Consonant with adverse
possession jurisprudence, our current boundary by acquiescence
caselaw looks to the claimant‘s occupancy alone to determine
whether the claimant provided notice to the nonclaimant. The
nonclaimant need not provide express consent, but can acquiesce
through inaction. This present approach, while markedly different
from our prior approach, is preferable for policy reasons.
¶ 28 Specifically, when we treat boundary by acquiescence
claims as similar to adverse possession claims, our boundary by
acquiescence doctrine ―fills an important gap in the law left
unaddressed by other doctrines.‖53 Neither boundary by agreement
nor adverse possession adequately addresses every type of
boundary dispute between adjoining property owners. Under
boundary by agreement, a claimant needs to marshal evidence of an
express parol agreement to alter a disputed boundary line. Boundary
by acquiescence addresses those cases where there is no evidence of
an express agreement, perhaps because the boundary line was
established many years prior by deceased landowners and there are
no witnesses to provide competent evidence of a parol agreement.
Under adverse possession, a claimant must pay taxes on the
disputed property. As we noted in Q-2 L.L.C. v. Hughes,54 Utah‘s
adverse possession statute cannot adequately address 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.‘‖55 Without boundary by acquiescence, a claimant who cannot
to ‗promote consistency and predictability among these related real
property doctrines.‘‖ 2016 UT 8, ¶ 18, 368 P.3d 86 (citation omitted).
53 Staker, 785 P.2d at 423.
54 2016 UT 8.
55 Id. ¶ 17 (citation omitted) (first alteration in original).
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ANDERSON v. FAUTIN
Opinion of the Court
establish either a boundary by agreement claim or an adverse
possession claim may be without legal remedy.
¶ 29 Our prior caselaw, which conflated boundary by
acquiescence with boundary by agreement, essentially eliminated
boundary by acquiescence as a viable remedy because it required a
claimant to present evidence from which a court could imply a
boundary agreement, including evidence of mutual occupancy and
consent to establish a visible line as the boundary. Claimants who
sought a judicial remedy in the absence of such evidence were left
without remedy. By treating boundary by acquiescence claims as
similar to, but distinct from, adverse possession claims, we provide a
legal remedy to those landowners who have relied on a boundary
line for a long period of time but cannot mount evidence of an
agreement or evidence to show they paid taxes on the property up to
the visible line. This will, in turn, ―avoid litigation while promoting
stability in boundaries,‖56 as it will prevent a nonclaimant from
suing to undo a long acquiesced in boundary line merely because a
claimant cannot satisfy the elements set forth under our boundary by
agreement and adverse possession doctrines.
¶ 30 Under our current approach to the occupation element of
boundary by acquiescence, a claimant must occupy his or her land up
to a visible line in a manner that provides the nonclaimant with
notice. Under the mutual acquiescence element, a nonclaimant‘s
occupation up to a visible line is unnecessary, and the nonclaimant
can acquiesce through silence or indolence alone. As discussed in the
previous section, our early boundary by acquiescence cases did not
clarify the legal significance of the nonclaimant‘s occupancy, though
some early cases looked to the nonclaimant‘s occupancy as evidence
of acquiescence.57 To the extent these early cases required mutual
occupancy to satisfy the occupation element of boundary by
acquiescence, we recognize that subsequent caselaw has abandoned
this approach and here disavow any such requirement.
¶ 31 Therefore, to ensure clarity in future cases, our boundary by
acquiescence doctrine requires a claimant to show: (1) a visible line
marked by monuments, fences, buildings, or natural features treated
as a boundary; (2) the claimant‘s occupation of his or her property
up to the visible line such that it would give a reasonable landowner
notice that the claimant is using the line as a boundary; (3) mutual
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56 Staker, 785 P.2d at 423.
57 Supra ¶ 16.
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Opinion of the Court
acquiescence in the line as a boundary by adjoining landowners; (4)
for a period of at least 20 years.
¶ 32 In this case, the facts show that Ms. Fautin occupied her
property up to the fence for over twenty years, thereby satisfying the
occupation element of our boundary by acquiescence doctrine.
Mr. Anderson, on the other hand, failed to visit or inspect his
property for a twenty-six-year period. Had he done so, he could
have timely objected to the fence. Accordingly, we affirm the
decision of the court of appeals.
Conclusion
¶ 33 For the reasons discussed above, we affirm the court of
appeals‘ decision. The occupation element in our boundary by
acquiescence doctrine does not require a claimant to prove
occupancy on both sides of a visible line. Instead, a claimant must
show occupation up to a visible line on his or her property only.
Since Ms. Fautin occupied her property up to the fence for over
twenty years, she satisfied the occupation element.
17