Halladay v. Cluff

685 P.2d 500, 1984 Utah LEXIS 839

• Court: Utah Supreme Court
• Decided: May 1, 1984
• Docket: 18032
• Status: Published

Opinions

OAKS, Justice:

This is an appeal from a judgment relying on boundary by acquiescence to quiet title to a 52.5- by 118-foot parcel of real property in the city of Provo. The issues are whether a showing of uncertainty or dispute on the location of a boundary line is necessary to the application of boundary by acquiescence, and, if so, what is meant by “uncertainty” and who has the burden of proving it.

The property in issue is located in Provo City and is shown as parcel A-B-C-D on the accompanying map. From 1930 to the present, there has been a fence along lines E-A-B-F. It extends approximately 52 feet behind the rear property lines (C-D) of lots 1 and 2. This extension apparently resulted from an assumption that the 231-foot depth of these lots was measured from the edge of the street instead of from the points across 100 South Street shown on the legal descriptions.

The fence was clearly visible when the Bigelows purchased lot 1 in 1947 and when Cluff acquired lot 2 in 1948. The Halla-days acquired lot 3, which contains most of the disputed parcel, in 1958. (They purchased lot 5 in 1950 and lot 4 in 1961.)

When the Bigelows and Cluff purchased lots 1 and 2, they assumed their properties extended to the back fence at line A-B. Acting accordingly, they cultivated gardens and built and maintained several chicken coops on their respective portions of parcel A-B-C-D. Bigelows had a survey made in 1956 that placed their rear boundary near line C-D, but they and Cluff apparently believed the survey to be erroneous. In 1975, Cluff obtained a plat that placed her rear boundary at line C-D.

During the period of their adjoining property ownership, the Halladays maintained that Bigelows’ and Cluff s true boundaries were at line C-D. Mr. Halla-day informed Mr. Bigelow of this fact on one occasion in the 1950s and told him not to use the disputed parcel on several occasions in the 1970s. Halladays had no discussions with Cluff regarding the property line until shortly before this litigation commenced. Halladays made very little use of lot 3.

In 1979, the Halladays commenced this suit to quiet title to parcel A-B-C-D. The Bigelows and Cluff counterclaimed, and the district court sustained their ownership of this parcel under the doctrine of boundary by acquiescence. On appeal, the Halladays seek to overturn that decision on the basis that boundary by acquiescence cannot be applied where there was no dispute or uncertainty concerning the location of the boundary. We agree and reverse with directions to quiet title in the Halladays, the record owners.

I. UNCERTAINTY OR DISPUTE AS AN INGREDIENT IN BOUNDARY BY ACQUIESCENCE

The doctrine of boundary by acquiescence has been the source of considerable confusion and controversy among judges, lawyers, and landowners in this state. King v. Fronk, 14 Utah 2d 135, 139, 378 P.2d 893, 895 (1963); Note, Boundary by Acquiescence, 3 Utah L.Rev. 504, 504 (1953). See generally Note, Boundaries-by Agreement and Acquiescence in Utah, 1975 Utah L.Rev. 221. One of the primary areas of confusion is the requirement of the “presence or absence of dispute and/or uncertainty as to boundary.” King v. Fronk, 14 Utah 2d at 139, 378 P.2d at 895.

Much of the confusion has resulted from the intermingling of rules governing boundary by acquiescence and boundary by parol agreement. Annot., 7 A.L.R. 4th 53, 59 (1981). Both of these doctrines identify circumstances in which landowners can establish boundary lines without a written agreement. Originally, the two were easily distinguishable because boundary by parol agreement required an express parol agreement with respect to a boundary but no period of acquiescence, while boundary by acquiescence required a lengthy period of acquiescence but no express parol agreement. Hummel v. Young, 1 Utah 2d 237, 239-40, 265 P.2d 410, 411 (1953); Brown v. Milliner, 120 Utah 16, 25, 232 P.2d 202, 207 (1951); Note, 1975 Utah L.Rev., supra, at 224.¹

With time, the distinctions between boundary by agreement and boundary by acquiescence became blurred. The requirement of an express parol agreement began to be articulated among the elements of boundary by acquiescence, although this Court said that “the law will imply an agreement fixing the boundary as located, if it can do so consistently with the facts appearing .... ” Hummel v. Young, 1 Utah 2d at 240, 265 P.2d at 411. Similarly, the requirement of a long period of acquiescence was applied to boundary by agreement. Hobson v. Panguitch Lake Corp., Utah, 530 P.2d 792, 794 (1975); Blanchard v. Smith, 123 Utah 119, 121, 255 P.2d 729, 730 (1953). In various opinions, the Court even referred to boundary by agreement and boundary by acquiescence as if they had merged into one. See, e.g., Hobson v. Panguitch Lake Corp., 530 P.2d at 794 (reference to “the doctrine of boundary by acquiescence or agreement”); Carter v. Lindner, 23 Utah 2d 204, 460 P.2d 830 (1969) (reference to “boundary line by acquiescence under an oral agreement”); Note, 1975 Utah L.Rev., supra, at 222-23.

The confusion stemming from the intermingling of boundary by agreement and boundary by acquiescence has carried over to the subject of uncertainty or dispute over the boundary. Originally, this was mentioned as a requirement only in connection with boundary by agreement. Rydalch v. Anderson, 37 Utah 99, 109, 107 P. 25, 29 (1910). In that context, uncertainty or dispute over the boundary would precede and provide the motivation for the oral agreement. In 1928, this Court began to refer to uncertainty or dispute as a matter to be considered in boundary by acquiescence. Tripp v. Bagley, 74 Utah 57, 66-72, 276 P. 912, 916-18 (1928). Thereafter, the opinions of this Court frequently referred to a showing of uncertainty or dispute as an essential ingredient in the application of the doctrine of boundary by acquiescence. Madsen v. Clegg, Utah, 639 P.2d 726, 728-29 (1981); Leon v. Dansie, Utah, 639 P.2d 730, 731 (1981); Wright v. Clissold, Utah, 521 P.2d 1224, 1226 (1974); Universal Investment Corp. v. Kingsbury, 26 Utah 2d 35, 37-38, 484 P.2d 173, 174-75 (1971); Glenn v. Whitney, 116 , 209 P.2d 257, 260 (1949); Home Owners’ Loan Corp. v. Dudley, 105 Utah 208, 219, 141 P.2d 160, 166 (1943); Peterson v. Johnson, 84 Utah 89, 93, 34 P.2d 697, 698-99 (1934). Although there are admittedly some other opinions throughout this period that make no mention of a showing of uncertainty or dispute,² we have concluded from the more recent cases and from the clear weight of authority that the relevance of this ingredient is settled in our law. See generally Annot., 69 A.L.R. 1430, 1501-04 (1930), supplemented in 113 A.L.R. 421, 436 (1938); 12 Am.Jur.2d Boundaries §§ 78-79, 83, 88 (1964).

The difficult issues in respect to uncertainty or dispute as an ingredient in boundary by acquiescence concern the meaning of these terms and who has the burden of proof. As demonstrated hereafter, our opinions have not given consistent answers to these questions. The contest is typically between interests that are both worthy— the desire to confirm boundaries that have apparently been recognized on the ground over a long period of time and the desire to enhance reliance on the property dimensions shown in the county records. The law clearly gives precedence to the record title, with boundary by acquiescence being an exception, but the conditions of that exception have not been settled with clarity or adhered to with consistency, in part because of the bewildering variety of factual circumstances in which the question arises.

In general, when survey information is reasonably available (such as when reliable survey control points are accessible to the land and survey costs are not disproportionate to the value of the land) so that it is reasonable to expect the parties to locate their boundary on the ground by surveys, the courts should be less willing to apply the doctrine of boundary by acquiescence. This reasonable availability of survey information obviously varies from place to place and from time to time. However, it can be said in general that survey information is more available and its cost is less likely to be disproportionate in relation to the value of the land in city and platted areas than in rural or wilderness areas. It can also be said in general that technological advances in survey techniques (as well as in the accuracy and accessibility of record title information) is tipping the scales toward greater reliance on record title information and lesser reliance on boundary by acquiescence.³ The law should conform to those realities.

II. THE MEANING OF UNCERTAINTY OR DISPUTE OVER BOUNDARY

In some earlier cases, uncertainty or dispute had to be traceable to an objectively determinable ambiguity in a deed or survey, so that the true location of the boundary could not be readily ascertained. It was not established, by proving that neither adjoining landowner knew the exact location of the boundary, because “lack of knowledge as to the location of the true boundary is not synonymous with uncertainty.” Glenn v. Whitney, 116 Utah at 273, 209 P.2d at 260; Note, 1975 Utah L.Rev., supra, at 231-32. However, later cases rejected this objective measurement in favor of a subjective test in which “a boundary line may be ‘uncertain’ or ‘in dispute’ even though it is capable of being readily ascertained.” Ekberg v. Bates, 121 Utah 123, 127, 239 P.2d 205, 207 (1951), quoting Willie v. Local Realty Co., 110 Utah 523, 531, 175 P.2d 718, 723 (1946). Uncertainty or dispute was much easier to prove under this rule, which therefore had the effect of increasing the availability of boundary by acquiescence and decreasing reliance on the record title.

After carefully considering our previous decisions on this question, we return to the more rigorous definition set forth in Glenn v. Whitney, supra, and hold that “dispute” is not proved by a mere difference of opinion, and “uncertainty” is not proved by a mere lack of actual knowledge of the true location of the boundary. This is the thrust of our recent decisions on this subject, e.g., Madsen v. Clegg, supra, and it is the holding of the better-reasoned cases in other jurisdictions. E.g., Buza v. Wojtalewicz, 48 Wis.2d 557, 564-67, 180 N.W.2d 556, 560-61 (1970); Hartung v. Witte, 59 Wis. 285, 298-300, 18 N.W. 175, 180-81 (1884); Fry v. Smith, 91 Idaho 740, 741-42, 430 P.2d 486, 487-88 (1967). Finally, the ingredient that has been called “dispute or uncertainty” should be measured against an objective test of reasonableness and should therefore more appropriately be called “objective uncertainty.”

Under the rule as we have defined it here, the property line shown on the record title cannot be displaced by another boundary unless it is shown that during the period of acquiescence there was some objectively measurable circumstance in the record title or in the reasonably available survey information (or other technique by which record title information was located on the ground) that would have prevented a landowner, as a practical matter, from being reasonably certain about the true location of the boundary. By the same token, a claimant cannot assert boundary by acquiescence if he or his predecessors in title had reason to know the true location of the boundary during the period of acquiescence.

Our decision to measure compliance with the requirement of “objective uncertainty” by whether the landowner, as a practical, matter, could be reasonably certain about the true location of the boundary on the ground is supported by two policy considerations.

First, by allowing less latitude for boundary by acquiescence, we minimize conflict with the objectives of our statute of frauds, which forbids the transfer of interests in real property without a written conveyance. U.C.A., 1953, § 25-5-1; Madsen v. Clegg, 639 P.2d at 728-29; Tripp v. Bagley, 74 Utah at 68-72, 276 P. at 916-18.

Second, an objective test, which minimizes reliance on boundary by acquiescence, corresponds more closely to the purposes of that doctrine. This Court has recognized that “[t]he very reason for being of the doctrine of boundary by acquiescence or agreement is ... [to avoid] stirring up controversy,” Hobson v. Panguitch Lake Corp., 530 P.2d at 794, to prevent litigation, and to promote repose of title and stability in boundaries. Hales v. Frakes, 600 P.2d at 559. These purposes are best furthered if those who purchase, use, or sell real property must rely on descriptions in deeds and reasonably available survey information to settle boundary questions in the first instance. Only when it is not reasonable to expect landowners to ascertain the true location of the boundary by this manner should landowners be allowed to claim boundary by acquiescence. See Hartung v. Witte, 59 Wis. at 298-300, 18 N.W. at 180-81. Allowing a claimant to forego reasonably available means of determining the true boundary and to assert his lack of “actual knowledge” as a basis for boundary by acquiescence fosters uncertainty on the location of boundaries and magnifies the number of instances in which landowners have to resolve disputes by litigation.

Boundary by acquiescence remains a viable means of establishing a boundary where there is objective uncertainty in the location of the true boundary that cannot reasonably be resolved by reference to the record title and by use of reasonably available survey information. For example, following are instances of objectively measurable uncertainties in which boundary by acquiescence would be appropriate if its other requirements were met: inability to locate monuments established in original survey, Holmes v. Judge, 31 Utah 269, 271, 87 P. 1009, 1010 (1906); internal inconsistencies in plat, Young v. Hyland, 37 Utah 229, 233, 108 P. 1124, 1126 (1910); no official or original plat or survey by which the boundary line can be located, Jensen v. Bartlett, 4 Utah 2d 58, 60, 286 P.2d 804, 806 (1955); disagreement among different surveyors on location of boundary line, id.; landmarks referenced in deeds have disappeared, Joaquin v. Shiloh Orchards, 84 Cal.App.3d 192, 148 Cal.Rptr. 495, 496 (1978); uncertainties or disputes created by conflicting terms in deeds, such as overlapping descriptions, Motzkus v. Carroll, 7 Utah 2d 237, 239, 322 P.2d 391, 393 (1958); or metes and bounds descriptions that do not close, Nunley v. Walker, 13 Utah 2d 105, 110-11, 369 P.2d 117, 120-21 (1962). Boundary by acquiescence should also be available where there are other inconsistencies that create reasonable doubt in the meaning of the record title or in its application to the actual on-the-ground location of the property identified in the record.⁴

III. BURDEN OF PROOF OF OBJECTIVE UNCERTAINTY

An early line of cases placed the burden of proving uncertainty or dispute on the party claiming boundary by acquiescence. Peterson v. Johnson, 84 Utah at 93-94, 34 P.2d at 698-99; Home Owners’ Loan Corp. v. Dudley, 105 Utah at 219-20, 141 P.2d at 166; Willie v. Local Realty Co., 110 Utah at 530-32, 175 P.2d at 722-23; Glenn v. Whitney, 116 Utah at 272-73, 209 P.2d at 260. For example, since the fence in Home Owners’ Loan Corp. v. Dudley, supra, “was not shown to have been established to settle any dispute or to establish any boundary line, the true location of which was unknown or even uncertain,” boundary by acquiescence was held to have failed. 105 Utah at 219, 141 P.2d at 166.

A few years later, however, in Brown v. Milliner, supra, this Court rejected the ruling in this line of cases, stating:

In some of the opinions of this court on the subject of disputed boundaries, there are statements to the effect that the location of the true boundary must be uncertain, unknown or in dispute before an agreement between the adjoining landowners fixing the boundary will be upheld, citing Tripp v. Bagley, supra, in support thereof.... But the Tripp case does not require a party relying upon a boundary which has been acquiesced in for a long period of time to produce evidence that the location of the true boundary was ever unknown, uncertain or in dispute. That the true boundary was uncertain or in dispute and that the parties agreed upon the recognized boundary as the dividing line will be implied from the parties’ long acquiescence.

120 Utah at 27, 232 P.2d at 208. Numerous decisions after Brown v. Milliner used a similar approach, either by omitting this subject from the list of elements to establish the doctrine or by requiring the defending landowner to prove “the absence of a dispute or uncertainty in fixing the boundary” as a means of rebutting a presumption of boundary by acquiescence. Wright v. Clissold, 521 P.2d at 1226. See, e.g., Universal Investment Corp. v. Kingsbury, 26 Utah 2d at 37, 484 P.2d at 174; King v. Fronk, 14 Utah 2d at 138, 378 P.2d at 895; Motzkus v. Carroll, 7 Utah 2d at 242-43, 322 P.2d at 395-96.

However, in Florence v. Hiline Equipment Co., Utah, 581 P.2d 998 (1978), this Court was again squarely faced with the question of who should carry the burden of proof. In holding that boundary by acquiescence did not apply, the trial court had stated as a conclusion of law “[t]hat the doctrine of boundary by acquiescence arises only when the true boundary is either unknown, uncertain, or in dispute, none of which was proved in this case.” Id. at 1000. The Court, in an opinion authored by Justice Hall (only one justice dissenting), affirmed that decision and its statement of the law, noting that it was “consistent with this’ Court’s prior holdings.” Id. The Florence holding was apparently ignored (but not questioned) in three subsequent cases.⁵ Then, in rejecting boundary by acquiescence, our two most recent cases discuss the absence of uncertainty or dispute in conjunction with the affirmative requirements of the doctrine and contain no intimation that this subject is part of the burden of a record landowner seeking to rebut a presumption. Leon v. Dansie, Utah, 639 P.2d 730 (1981); Madsen v. Clegg, Utah, 639 P.2d 726 (1981). In the latter case, this Court stated: “In the absence of any initial uncertainty concerning the ownership of the property in question, the doctrine of boundary by acquiescence has no application.” Id. at 729 (emphasis added).

The question of burden of proof is about evenly balanced on the authorities. On policy, both positions are supportable by persuasive arguments. The allocation of the burden of proof could therefore depend on what one assumes about whether it is the record owner or the claimant by acquiescence who has superior access to facts about events long past, but that basis of decision is unacceptable because either assumption could be made and neither could be justified empirically. In this circumstance, we are especially well advised to limit our rule of law to the facts before us.

This ease involves property in the city of Provo, where survey information is readily available. It is therefore reasonable for the law to require the parties in this case to locate their property lines on the ground by means of the record title and reasonably available survey information rather than by acquiescence in a fence line or other identifiable points on the ground. Consequently, as to this circumstance we hold that the party claiming boundary by acquiescence has the burden of proving objective uncertainty as part of the prima facie elements of the doctrine of boundary by acquiescence.⁶ Notwithstanding this allocation of the burden of proof, the record landowner may, of course, conclusively negate the existence of objective uncertainty by proving that the claimant or his predecessors in title had reason to know the location of the true boundary before the expiration of the period of acquiescence.

IV. THE FACTS OF THIS CASE

We are mindful that the district court had to rule on the facts of this case in the face of the contradictory authorities we have discussed. Since we have now undertaken to clarify the rules pertaining to this case, our task is much easier.

Although there are no direct findings relating to the requirement of uncertainty, the court did find that “[tjhere is no record title in either [the Bigelows or Cluff] to the property in dispute.” Neither of these claimants challenges the factual basis for that finding. In addition, there is no evidence of any objectively measureable circumstance in the record title or in the reasonably available survey information that would have prevented the claimants from using these means to ascertain the true boundary on the ground. On the contrary, the evidence clearly shows that both claimants had ready access to deeds and had actually examined surveys clearly establishing the Halladays’ record title to the property in dispute. Consequently, the doctrine of boundary by acquiescence is inapplicable as a matter of law in the circumstances of this case. The decree relying on that doctrine in quieting the claimants’ title to parcel A-B-C-D must therefore be reversed.⁷

The decree is reversed, and the case is remanded to the district court for the entry of a new decree in conformity with this opinion. No costs awarded.

HALL, C.J., and STEWART and DURHAM, JJ., concur.

1 . The period of acquiescence required for boundary by acquiescence has not been quantified into an exact period of time; it depends on the circumstances of the particular case. This Court’s most recent discussion identifies it as a "long period of time ... generally related to the common law prescriptive period of 20 years; and only under unusual circumstances would a lesser period be deemed sufficient.” Hobson v. Panguitch Lake Corp., Utah, 530 P.2d 792, 795 (1975) (10 years held insufficient). Accord King v. Fronk, 14 Utah 2d 135, 141-42, 378 P.2d 893, 897 (1963).

2 . E.g., Goodman v. Wilkinson, Utah, 629 P.2d 447 (1981); Monroe v. Harper, Utah, 619 P.2d 323 (1980); Hales v. Frakes, Utah, 600 P.2d 556 (1979). See also Brown v. Milliner, 120 Utah at 25, 232 P.2d at 207 (uncertainty or dispute characterized as the "fiction” on which boundary by acquiescence is grounded).

3 . When boundary by acquiescence was first introduced in Utah almost a century ago, Switzgable v. Worseldine, 5 Utah 315, 15 P. 144 (1887), much of the state had not been surveyed and searches of record title may have been difficult to conduct.

4 . Parties also remain free to settle uncertainties or disputes through boundary by agreement or by the use of quitclaim deeds or other legal documents. Disputants may also acquire property through adverse possession, as provided by statute. §§ 78-12-2 to -21.

5 . These cases, cited note 2 supra, do not list uncertainty or dispute as an affirmative requirement of boundary by acquiescence.

6 . We express no opinion on whether this allocation of the burden of proof would apply to property not located in a city or platted area.

7 .Our resolution of this issue makes it logically unnecessary for us to rule on the other issues tendered by appellants.

We also forego answering the numerous arguments and charges in the dissenting opinion. We do caution that the meaning and intent of this opinion should not be judged by the content of the dissent, because we do not acquiesce in the dissent’s interpretation of this opinion. To cite only one example, a boundary located on a surveyed line could qualify for boundary by acquiescence, even though a subsequent survey showed the original survey to have been in error. A rule of law that is intended to encourage landowners to rely on record title information and reasonably available survey information will not be applied to penalize a landowner who has done just that. If the original survey was in error, that is a clear instance of objective uncertainty, and boundary by acquiescence will apply if its other elements are proved.