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New Case Summary—Q-2 V. Hughes Utah Supreme Court on February 16, 2016
The Utah Supreme Court confirmed that title to property passes by operation of law when the elements of boundary by acquiescence are met because 1) the Court held that parties obtained title by operation of law in its prior boundary by acquiescence cases; 2) title passes by operation of law in the closely related doctrine of adverse possession; and 3) policy considerations favor the transfer of property by operation of law.

Boundary Disputes by J. Craig Smith (Smith Hartvigsen, PLLC)
"What made this doctrine acceptable to avoid the statute of frauds was that, despite the absence of an express parol agreement, the doctrine “required a lengthy period of acquiescence.” Halladay, 685 P.2d at 503. “The doctrine of boundary by acquiescence is rooted in policy considerations of ‘avoiding litigation and promoting the stability of land ownership.’” Bahr, 2011 UT 19, at 35 (further citation omitted).

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Simplified Summary:
Disputes Using Utah’s Boundary by Acquiescence Doctrine
by Elliot R. Lawrence

The Boundary by Acquiescence theory provides that a long-standing marker indicating where property owners understand a boundary to be located becomes the actual boundary, even if a survey places it elsewhere. Boundary by Acquiescence is shown by proving all of the following:

(1) a visible line marked by monuments, fences, buildings, or natural features treated as a boundary;
(2) the claimant’s occupation of his or her property up to the visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary;
(3) mutual acquiescence in the line as a boundary by adjoining landowners;
(4) for a period of at least 20 years.

It is not necessary that the owners formally agree that the monument marks the property boundary; acceptance or acquiescence is sufficient. This can be shown by the actions of the property owners regarding the location of the boundary.

The disputed property must be actually occupied or used. Merely claiming ownership is not sufficient.

Utah Supreme Court Opinions on Boundary by Acquiescence:

Essential Botanical Farms, LC v. Kay, 2011 UT 71 — Boundary by Acquiescence elements must be proven by “clear and convincing evidence.”

Q-2, LLC v. Hughes, 2016 UT 8 — Title to disputed property passes when the elements of boundary by acquiescence are established, even if the dispute is not resolved by agreement or a court action at that time.

Anderson v. Fautin, 2016 UT 22 — Discusses and clarifies certain terms of the Boundary by Acquiescence doctrine.

Utah Court of Appeals
The Utah Court of Appeals overturned the lower court’s denial of a boundary by acquiescence claim that concluded the landowner could not have acquiesced to a fence as a boundary because the landowner’s intent was that the fence be built for animal containment and not as a boundary.

In the 1950’s, the Gibsons’ predecessor erected a fence about two feet inside the deeded northern property line of the Gibson property for the purpose of confining animals. Over the years, the various landowners never discussed the boundaries. In 2015, the Gibsons intended to replace the fence with a cement retaining wall along the deeded northern property line, which was met with opposition by neighboring Linebaugh, who claimed that the property north of the existing fence was legally her property.

At trial, the district court entered summary judgment for the Gibsons, ruling that Linebaugh could not establish boundary by acquiescence, for as an essential element of the claim is mutual acquiescence in the line as a boundary, the lower court held that the Gibsons’ predecessor could not have acquiescence to the mesh fence as a boundary where the fence was not intended as a boundary, but as containment for animals.

On appeal, the Court of Appeals reversed, finding that the lower court misread Utah case law on the issue. A claim for boundary by acquiescence is determined by the parties’ objective actions in relation to the boundary and not their mental state. The fact that no discussions had ever taken place regarding the boundaries, combined with the Gibsons and their predecessors’ occupation up to the fence as their property, overcomes any notion that the Gibsons and predecessors could not have acquiesced to the fence solely because it was initially built to contain animals.