Elias v. Lea

270 P.3d 414, 1978 WL 413223

• Court: Utah Supreme Court
• Decided: January 1, 1978
• Docket: 14885
• Status: Published

Opinions

ELLETT, Chief Justice:

Mr. and Mrs. Lea appeal from a judgment entered by the trial court quieting title to a twenty-eight foot strip of land in Mr. Elias who was the record owner thereof. The parties are adjoining landowners and their deeds call for a common boundary line to the east of a fence which has had a varied existence since it was erected.

The trial court refused to quiet title in Mr. and Mrs. Lea on their claim of boundary by acquiescence, and they now bring this appeal.

There is nothing in the record to show that any agreement ever existed between the owners of the two tracts of land to the effect that the fence was the true boundary between the parcels. Nor was there any evidence to indicate that the fence was intended to be a dividing line since it was originally erected by the common owner of the two parcels of land.

In 1954, when the predecessor in interest of the respondent purchased the land, there existed only two stubs of posts in what had originally been a fence built by the owner of both pieces of property for his own purposes. Thereafter, a wooden fence was erected, but the family of the respondent had access to his property on both sides thereof; never at any time did he consent to having the fence as the eastern boundary of his land. In 1973, when a chain link fence was erected which deprived the respondent and his family of access to their property to the east, this lawsuit was initiated.

The appellants would have us reverse the trial court in presumptions which more nearly indicate adverse possession than they do acquiescence. The very presumptions relied upon do not apply until the following elements are established by a preponderance of the evidence:

(1) Occupation up to a visible line marked definitely by some monument,

(2) Acequiescence in that line as a boundary

(a) by adjoining land owners, and

(b) for a long period of time.

Appellants have failed in their proof of acquiescence in the fence as a boundary. As pointed out in the case of Riter v. Cayias,¹ the party losing the property must have knowledge that his property is being claimed by another. There is no proof that the respondent or any of his predecessors in interest ever had any knowledge that the property east of the fence was being claimed by another. This statement is bolstered by the finding of the trial court, to wit:

3. At the time that defendants received the conveyance referred to in the previous paragraph, a fence existed along a line going generally north and south approximately nine feet west of what is now the east line of Lot 5, Millbrook Terrace Subdivision, said line being close to the line on which a chain link fence erected by defendants in 1978, now exists. Neither plaintiff and third-party defendants J. Morrow Elias and Susan Lynn Elias, nor their predecessors in title have acquiesced in said line as a boundary.

The appellants, urge us to overlook the finding of the trial court who saw and heard the witnesses and render our own findings at variance therewith. They urge us to do so because of the provisions of Article VIII, Section 9 of the Utah Constitution which so far as material, reads as follows:

... In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone....

At the time the Constitution was adopted, equity matters were submitted on depositions;² therefore, members of the Supreme Court were just as capable of determining the facts in an equity case as was the trial judge. By our court decision we have continued to consider the facts of an equity case or appeal, but we do not substitute our judgment of what the facts are unless the ruling of the court below is clearly against the weight of the evidence.³

In the instant matter, the ruling of the trial court was based on proper, competent evidence and it is hereby affirmed. Costs are awarded to the respondent.

I CONCUR: J. ALLAN CROCKETT, Justice.

1 . 19 Utah 2d 358, 431 P.2d 788 (1967).

2 . Vol. II, Proceedings of Constitutional Convention, p. 1507. See my dissent in First Security Bank v. Demiris, 10 Utah 2d 405, 412, 354 P.2d 97 (1960).

3 . Metropolitan Investment Co. v. Sine, 14 Utah 2d 36, 376 P.2d 940 (1962); Del Porto v. Nicolo, 27 Utah 2d 286, 495 P.2d 811 (1972).