Utah Court of Appeals
2022 UT App 64 (Click for full text of opinion)
The Utah Court of Appeals upheld the dismissal of a boundary by acquiescence claim where the claimant did not produce clear and convincing evidence of each element of the claim.
In 2012, Mr. Huck bought a property in the Avenues neighborhood of Salt Lake City that was improved with a small apartment building. When Huck’s predecessor acquired the property in 1972, a wire fence located approximately nine feet from the apartment building marked the property’s western boundary. The fence did not run the entire length of the property, however, and the southwestern corner of the property was covered in overgrown trees and brush with no fence. Over the years the fence fell into disrepair to where there were only “remnants” of a fence.
Ken’s House acquired the parcel adjoining this southwest corner of the Huck property in 2016, and a survey showed the actual property line to be two and a half feet farther east than where the fence remnants were. Ken’s House built a detached two-car garage along the surveyed boundary line, and Huck sued over the disputed two and a half feet under boundary by acquiescence.
To prove boundary by acquiescence, a claimant must demonstrate, by clear and convincing evidence, the following four elements: (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.
While at trial, Huck produced several witnesses that testified as to use of the “alley” area on the side of the apartment building between the two properties wherein the disputed strip was located, the Court of Appeals held that Huck had not met his burden of clear and convincing evidence because the evidence of use was not targeted at use of the disputed strip, specifically. Testimony that the disputed strip was generally used for “safety” and to comply with the city’s ten-foot setback was too passive and not sufficient to satisfy the occupation element to place Ken’s House on notice.