Hall v. Bingham , 528 P.2d 151 ( 1974 )

TUCKETT, Justice:

The plaintiffs initiated these proceedings in the District Court of Weber County seeking injunctive relief against the defendant to restrain her from destroying and interfering with a certain fence which existed between plaintiffs’ property and that of the defendant. The plaintiffs also seek to have their title quieted and for damages against the defendant for slander of title. The trial court granted the defendant’s motion for a summary judgment, and the plaintiffs appeal.

Plaintiffs and the defendant are owners of contiguous tracts of land. The plaintiffs acquired the land they now occupy in 1937 as well as the land now claimed by the defendant. In 1962, the plaintiffs conveyed by warranty deed a parcel of the lands belonging to them to Simmons and Wiberg Investment Corporation. Through mesne conveyances the defendant acquired the property which had been conveyed to Simmons and Wiberg. At or about the time of the conveyance to Simmons and Wiberg that corporation executed a unilateral agreement or declaration to the effect that a certain fence line along the south boundaries of the property would constitute the property line and boundary dividing that property from that retained by the plaintiffs. That contract was not recorded. After the defendant purchased the property she now occupies she had her south boundary line established by a survey. It developed that the south boundary of her property was to the south of the old fence line. The defendant undertook to establish a new boundary by erecting a fence along the survey line. The plaintiffs commenced these proceedings to prevent the defendant from accomplishing her purpose.

It is the plaintiffs’ contention that there has existed a boundary by acquiescence between the contiguous parcels of land and that the defendant had no right to claim ownership of that parcel lying between the so-called boundary by acquiescence and that described in the deeds.

This is not a boundary by acquiescence case. Even though the plaintiffs claim that the boundary by acquiescence had been established prior to the time they conveyed to Simmons and Wiberg, nevertheless they conveyed by warranty deed and the calls in their deed did not conform to the boundary they now claim was established by acquiescence. The plaintiffs having conveyed away the tract of land now owned by defendant without regard to their claimed boundary by acquiescence they cannot now claim they are entitled to relief from their own conveyance.

The order of the court below is affirmed. Respondent is entitled to costs.

HENRIOD and ELLETT, JJ., concur.