Dean v. Kang Sik Park

2012 UT App 349, 293 P.3d 388, 2012 WL 6554730, 2012 Utah App. LEXIS 381
CourtCourt of Appeals of Utah
DecidedDecember 13, 2012
Docket20110427-CA
StatusPublished
Cited by4 cases

This text of 2012 UT App 349 (Dean v. Kang Sik Park) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. Kang Sik Park, 2012 UT App 349, 293 P.3d 388, 2012 WL 6554730, 2012 Utah App. LEXIS 381 (Utah Ct. App. 2012).

Opinion

OPINION

CHRISTIANSEN, Judge:

1 1 Defendants Kang Sik Park and Marsha K. Park (the Parks) appeal from the trial court's decision to quiet title in Plaintiffs James S. Dean and Sherlene T. Dean (the Deans). Specifically, the Parks assert that the trial court erred in determining that they failed to prove that both they and their neighbors acquiesced to a boundary marked by a wooden fence and that the Parks occupied the property up to the wooden fence. For the reasons stated below, we affirm the trial court's decision.

BACKGROUND

12 This case arises over a boundary dispute between neighbors in the Federal Heights area of Salt Lake City. The Deans purchased Lot 9 of Federal Heights Plat "D" in April 2005. As part of a complete home renovation, the Deans planned to replace an *390 old wooden fence that ran between their lot and Lot 8, which was owned by their next-door neighbors, the Parks. To that end, they obtained a survey of Lot 9 and found that the existing wooden fence running from the southwest corner to the northwest portion of their property was located inside the record boundary line by several feet. The wooden fence also ran east-west along part of the rear border of Lot 9. At the rear of the Deans' property there is also a chain-link fence that runs east-west on the record boundary line, runs parallel to the wooden fence up to the southwest corner of the Deans' lot, and runs approximately twenty feet to the north, mostly parallel to the wooden fence. The divergence between the wooden fence and the record boundary line partially marked by the chain-link fence creates a small triangular plot of land that has become overgrown by a number of Elm trees (the Disputed Area). After it became apparent that the Parks challenged the Deans' ownership of the Disputed Area, the Deans filed an action to quiet title to the area and alternatively sought an order allowing them to remove the trees, which they alleged threatened their house and property. The Parks counterelaimed, seeking to quiet title to the Disputed Area under the theory of boundary by acquiescence.

T3 The Deans' lot is one of three previously owned by Ms. Park and her former husband, Dr. Jed Morrison. Ms. Park worked for a licensed real estate broker from the late 1970s until 1992, when she obtained her own broker's license. Dr. Morrison and Ms. Park bought Lots 8, 9, and 10 of Federal Heights Plat "D" in 1977. They built their home on Lot 10 because it was at the top of a gentle slope that extended across all three lots. The Morrisons built several chain-link fences in and around the three lots. Some of the chain-link fences, like the fence between Lots 9 and 10, did not follow the record boundary line; other fences, like the fence between Lots 8 and 9, partially marked the record boundary line. The chain-link fence between Lots 8 and 9 runs exactly along the record boundary line for approximately twenty feet.

1 4 When they divorced in 1983, Dr. Morrison retained Lot 9 and conveyed his interest in Lots 8 and 10, located on either side of Lot 9, to Ms. Park. Dr. Morrison sold Lot 9 to David Clark in 1988. During the same year, Ms. Park constructed a new home on Lot 8, where she took up residence. She conveyed that parcel to Dr. Park in 1988 and relocated. Ms. Park and Dr. Park were married in 1991, whereupon Ms. Park moved back into the Lot 8 residence.

15 After purchasing Lot 9, Clark, a professional architect, elected to level his property by bringing in a substantial amount of fill before building a home and fence. This created a three-foot drop between his property and the Parks' property. The drop is most pronounced toward the northwestern portion of Lots 8 and 9 and gradually lessens toward the rear of the lots until the properties are nearly level at the southwestern corner. In approximately 1984, Clark constructed a wooden fence atop his newly-raised property, which is located inside the record boundary line. The wooden fence ran from the back of Lot 9 inside the existing chain-link fence, then angled inside the ree-ord boundary line toward Clark's house. The wooden fence did not run in a straight line, but appeared to jog around some trees. The wooden fence sat approximately three- and-a-half feet inside the record boundary line at the northernmost point of Clark's house and four feet inside the record boundary line at the southwest corner of Clark's house. If Clark had instead built the wooden fence at the bottom of the embankment between the lots, where the record boundary line runs, the fence would have extended only approximately three feet above the level of his backyard and would not have created privacy between the lots. Clark was unavailable to testify at trial.

T6 The Parks testified that they occupied the Disputed Area by watering, fertilizing, gardening, maintaining, and allowing Elm trees to grow on it,. However, the trial court found that "any watering or fertilizing of the Disputed Area was incidental to watering or fertilizing of the grassy area of the back yard adjacent to the Disputed Area. No sprinkler heads or lines are located in the disputed area." The court also found that "[Ms. Park]'s children occasionally planted small *391 plants and flowers above the boulders in the Disputed Area until approximately 1988, but [Ms. Park] never planted anything in the Disputed Area after 1988. ... [Ms. Park] has rarely even gone into the back yard since 1993." Furthermore, "the Disputed Area is not suitable for vegetable gardening and has not been for a significant period of time." Finally, the court found that "the Parks have not made any significant use of the Disputed Area since at least 2005, and likely since 1988, based on both the state of the Disputed Area and Ms. Dean's observation of the Parks' activities." Oritically, the court found Dr. Park's testimony regarding the Parks' use of the land to be unreliable. "Dr. Park's testimony regarding use of the Disputed Area was not consistent on a number of subjects, such as ... when grass ... [and] trees were growing in the Disputed Area.... [His] testimony in this matter is not credible and as a result ... no weight [is given] to his testimony.."

T7 Clark's wooden fence stood undisturbed and undisputed until the Deans bought and surveyed the property. When they found that the fence was not on the record boundary line, they notified the Parks in writing of their intent to replace and rebuild it on the boundary line. In response, the Parks wrote two letters disputing ownership of the area. The Deans removed the fence but preserved the fence posts and agreed to leave the Elm trees pending a resolution of this dispute. The Deans brought suit to quiet title on May 26, 2009. The Parks counterclaimed, arguing their right to quiet title under the doctrine of boundary by acquiescence.

T8 The trial court found that the Parks failed to meet their burden to establish two of the elements necessary to prove a boundary by acquiescence: (1) mutual acquiescence in a line as the boundary and (2) continuous occupation of the disputed area. The trial court ultimately found that Clark built the wooden fence where he did as a barrier to protect his privacy, rather than to establish the boundary between his and the Parks' lots. The court found that the Parks' testimonies regarding mutual acquiescence and continuous occupation were not credible. Accordingly, the trial court quieted title to the Disputed Area in the Deans and authorized the Deans to remove the Elm trees from the property.

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Bluebook (online)
2012 UT App 349, 293 P.3d 388, 2012 WL 6554730, 2012 Utah App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-kang-sik-park-utahctapp-2012.