Article

• Publication year: 2014
• Pages: 46
• Citation: Vol. 27 No. 6 Pg. 46

Article Vol. 27 No. 6 Pg. 46 Utah Bar Journal December, 2014

November, 2014

Settling Boundary Disputes Using Utah's Boundary by Acquiescence Doctrine

Elliot R. Lawrence, J.

Not too long ago, I took a call from a property owner involved in a boundary dispute. A masonry wall had stood for several years, separating her parcel from a neighboring property. A new owner had recently purchased the neighboring property, and he discovered that the wall had been built about ten feet onto his parcel. He immediately demanded that it be removed, so he could install a swimming pool. The woman protested, but he hired a contractor, who began removing the wall and her flower bed. She was distraught, but at that point, she had no choice but to begin legal action against her neighbor. If the parties had understood the boundary by acquiescence theory, they could have settled the dispute and avoided litigation.

Boundary by Acquiescence is an equitable doctrine applied to resolve property line disputes based on recognition of long-established markers used to identify 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). The boundary by acquiescence principle was recognized in Utah as early as 1887. See Switzgable v. Worseldine, 5 Utah 315,15 P. 144 (Utah 1887).

Boundary by acquiescence is not found in the Utah Code but was developed over many years by Utah's appellate courts. It is intended to guide property owners, prevent inequity, and help avoid litigation. The doctrine thus promotes stability in property descriptions, contributing to the "peace and good order of society." Bahr v. Imus, 2011UT 19, § 35, 250 P.3d 56.

The Equitable Underpinning of Boundary by Acquiescence

Boundary by acquiescence, like the similar doctrines of adverse possession or prescriptive easements, prevents inequity by recognizing long acceptance of property use or occupation.

The very reason for being of the doctrine of boundary by acquiescence.. .is that in the interest of preserving the peace and good order of society the quietly resting bones of the past, which no one seems to have been troubled or complained about for a long period of years, should not be unearthed for the purpose of stirring up controversy, but should be left in their repose.

Hobson v. Panguitch Lake Corp., 530 R2d 792,794 (Utah 1975). Altering property ownership is not to be taken lightly but may be necessary to prevent inequity and injustice and to recognize property rights arising from reliance on long-standing use. "It 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." Staker v. Ainsworth, 785 R2d 417, 422 (Utah 1990) (citation and internal quotation marks omitted).

Elements of Boundary by Acquiescence

A property owner must prove the following four elements in order to successfully establish a boundary by acquiescence: "(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." Bahr, 2011 UT 19, ¶ 35. The person asserting a claim for boundary by acquiescence has the burden of proof. And, because application of the acquiescence doctrine alters anowner's interest in real property, all four elements must each be established by "clear and convincing" evidence. Essential Botanical Farms, IC v. Kay, 2011UT 71, ¶ 22, 270 P.3d 430, 437. If any of the four elements are not proven, the claim fails. Hales v. Frakes, 600 P.2d 556, 559 (Utah 1979).

For a time, a fifth element - objective uncertainty as to the correct boundary line's location - was also required. However, in 1990, the Utah Supreme Court eliminated that requirement, holding that it made "boundary by acquiescence less practical," and that the extra element would lead to more litigation rather than less. Staher, 785 P.2d at 423.

Occupation Up to a Visible Line

The occupation element requires actual or constructive occupation and use of the area in question, not just a mere claim to the property. "The first element [of boundary by acquiescence]...