Utah Court of Appeals
June 26, 2014
2014 UT App 151 (Click for full text of opinion)
***Subsequent history: Further proceedings in this case resulted in an opinion by the Utah Supreme Court. Please see Anderson v. Fautin, 2016 UT 22.
The Utah Court of Appeals concluded that an owner’s silence or inactivity does not defeat a boundary by acquiescence claim by an adjoining owner’s use and occupation of the disputed area. In its opinion, the court reviewed several boundary by acquiescence cases issued over many years.
The dispute centered around placement of a fence that was originally constructed in 1930. Anderson purchased the parcel in 1968, but rarely visited it. In the meantime, Fautin (and her predecessor owners) had used the area up to the fence for farming and grazing for “substantially more than 20 years.”
In 2004, Anderson had his property surveyed, and the surveyor concluded that the fence was over 120 feet south of where the property line should be. He filed a quiet title action, seeking to reassert control over that 120 feet, and an order that a fence be constructed in the correct spot. Fautin responded by invoking the boundary by acquiescence doctrine, because she had used the property for more than 20 years without objection from Anderson.
Anderson claimed exemption because he was an absentee owner, did not attempt to use the disputed area, and never interacted with Fautin (or her predecessors), he could not have “acquiesced” in the fence as the property boundary. Fautin countered that Anderson’s silence or inactivity was not a defense to a boundary by acquiescence claim; and that all that she needed to show was use or occupation up to a fixed boundary (i.e., the fence), and that Anderson’s inactivity was not material.
The Court of Appeals agreed with Fautin. It noted that the question had not been directly addressed, but it concluded that one property owner’s inactivity was not material. The Court reviewed several cases dating back to the 1960s, and concluded that the elements of boundary by acquiescence, particularly the “mutual acquiescence in a defined line as a boundary” were not dependent upon knowledge or activity by either owner. All that was necessary was “occupation to to a visible line that would place a reasonable party on notice that the given line was being treated as a boundary.”