The Evolution in Utah of a "somewhat Arcane Rule of Property Law"
| Publication year | 1991 |
| Pages | 7 |
| Citation | Vol. 4 No. 2 Pg. 7 |
Jerrold S. Jensen, J.
Other than it overruled three 1984 Utah Supreme Court opinions, the case was really rather ho-hum. It reaffirmed hornbook law, stated what any property owner would have told you was the law, and followed a centuries-old principle of common law. But this doctrine has had a long and tortured history in Utah.
The confusion all started in 1928. Got sorted out in 1951. Had a brush with disaster in 1981, and went to hell in 1984. But because of a pristine case, the Utah Supreme Court saw the wisdom of what it termed a "somewhat arcane rule of property law, " and set the matter straight once again.
The case is Staker v. Ainsworth.[1] The doctrine is boundary by acquiescence. And the issue is whether attorneys and judges in this state can tell the difference between boundary by acquiescence and boundary by agreement.
Adverse possession, easement by prescription, boundary by agreement and boundary by acquiescence are all of the same genre in the law, having common ' traits and subtle differences, with the doctrine of adverse possession having its origins in 13th century England. The common law, the doctrine of boundary by acquiescence and boundary by agreement have since become highly developed in American law, as rules of repose, to leave at rest those things which have been at rest. The theory being that the peace and good order of society require that there be stability in the occupation of lands. Boundary lines which have been long established and accepted by those who should be concerned, should be left undisturbed in order to leave at rest matters which may have resulted in controversy and litigation.[2]
For a multiplicity of reasons, usually having to do with inexact surveying techniques—or more accurately inexact surveying techniques employed by some surveyors—property lines of the last century were often something less than precise. Vast acreage and cheap land usually obliterated the problem, but as these vast tracts have become subdivided into small and smaller plots, and as the land has become more valuable, precise boundaries have become of more and more concern. And Utah, as much as any state, has had a plethora of lawsuits dealing with these boundary discrepancies, often issuing right from the U.S. land patent grants of the 1870s and'80s. Now Staker was of this sort, and darned if anyone in 1986 could remember exactly what transpired between adjoining landowners in 1886. But Halladay v. Cluff [3]said they should, so we all went to court.
HALLADAY V. CLUFF AND "OBJECTIVE UNCERTAINTY"
The rule of boundary by acquiescence, as set forth by the American courts, essentially is: where the owners of adjoining land occupy their respective premises up to a certain line, which they mutually recognize and acquiesce in as the boundary line for a long period of time—usually 20 years—they and their grantees are precluded from claiming that the boundary line thus recognized and acquiesced in is not the true one, although such line may not be in fact the true line according to the calls of their deeds.[4]
Utah Supreme Court decisions, beginning in 1887, [5]have generally followed this rule, and over the years succinctly boiled the doctrine down to four basic criteria: (1) occupation up to a visible line marked definitely 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.[6]
To these criteria, in 1984, was added a fifth element by the Utah Supreme Court in Halladay v. Cluff, namely "the presence or absence of dispute and/or uncertainty." "Dispute or uncertainty, " as stated by the court, was to be measured against "an objective test of reasonableness, " hence the term "objective uncertainty." As defined, the "objective uncertainty" test meant that a property line shown on the record title could not be displaced by an arbitrary boundary, even though of long standing, unless something applied against "an objective test of reasonableness, " prevented a property owner from realizing that the legal description of his title did not correspond to the property he possessed.
The opinion listed what might be examples of "objectively measurable uncertainties, " such as: inability to locate monuments established in an original survey, internal inconsistencies in plat, no official or original plat or survey by which the boundary line can be located, etc. Then, into the fray, just to make sure the matter was not ease of comprehension, were thrown additional factors for consideration: (a) whether there was reasonable availability of surveys at the time of the original description, (b) the relationship of the value of the land to the cost of the survey, and (c) whether the land was urban or rural.
The facts of Halladay indicate that in 1946, Defendant Bigelow purchased a residential lot in Provo, Utah. The following year, Defendant Cluff purchased an adjoining lot. Since 1930, a fence had surrounded these two lots on three sides. As it turned out, the fence extended in the rear 52 feet beyond the titled boundary. This extension apparently resulted from the assumption that the depth of the lot measured from the edge of the street (logical), instead of points from across the street (illogical).
The two lots behind the Bigelow's and Cluff s lots were purchased by Halladay; one in 1950 and the other in 1961. However, in 1958, Halladay acquired a...
To continue reading
Request your trial