December 18, 2012
Utah Court of Appeals
2012 UT App 349 (Click for Full Text of Opinion)
December 13, 2012
This case confirmed and clarified aspects of the Boundary by Acquiesence Doctrine.
Because boundary by acquiescence alters the fee simple ownership of property (by altering property boundaries), a claim of boundary by acquiescence must be proven by clear and convincing evidence. The party attempting to establish a particular line as the boundary has the burden of proving the elements.
Determination of mutual acquiescence is based on the objective behavior of adjacent landowners. The parties’ subjective intent or belief about a boundary has no bearing on the existence of mutual acquiescence, except where it is based on a party’s objective actions. Recognition or acquiescence of a boundary is an objective determination based solely on the parties’ actions in relation to each other and the line serving as the property boundary.
The purpose of constructing a fence or other marker is a valid consideration, and may be objective evidence relevant to a determination of mutual acquiescence. Knowledge of the “correct” boundary location is also relevant information, and may be inferred or proven from a party’s objective actions, rather than subjective belief or intent.
The disputed area must be occupied up to the visible line or marker, in a manner that would place a reasonable party on notice that the line was being treated as the property boundary. This means a pattern of use that is normal and appropriate for the character and location of the land, and must include some activity on the land.