Utah Boundary by Acquiescence: “Don’t Fence Me In”
Sometimes an old fence is nothing more than an old fence. At other times, an old fence can be used to establish property rights. In a recent opinion, the Utah Supreme Court wrote of a barbed wire fence and Utah’s “boundary by acquiescence” doctrine. The opinion can be found at Essential Botanical Farms, LC v. Kay, 2011 UT 71 (November 15, 2011).
The doctrine of “boundary by acquiescence” can be stated simply. If two adjoining property owners treat a certain monument (such as a fence or a ditch) as the boundary line between the two parcels of property and that “acquiescence” continues for a long period of time, the law will recognize that monument as the boundary line.
Beginning in the mid 1950s, the Andrews family and the Fowkes family owned adjoining parcels or property in rural Juab County,Utah. The two parcels were separated by a “weathered” barbed wire fence that the Utah Supreme Court described as existing “from time immemorial.” Each family farmed the land up to each side of the fence and never claimed ownership of the property on the other side of the fence.
Over 40 years later, the Andrews family sold its parcel to Essential Botanical Farms, LC (“EBF”), and the Fowkes family sold its parcel to Mr. Kay. Mr. Kay soon discovered that the boundary line as shown on the county records extended beyond the fence and onto the land occupied by EBF. After this discovery, he removed a portion of the old fence and constructed a new fence on the boundary line shown in the county records. As a result, six acres occupied by EBF were now on Mr. Kay’s side of the new fence.
EBF filed a lawsuit against Mr. Kay claiming that the “boundary of acquiescence” doctrine established the old fence line as the boundary line between the two parcels of property and that EBF had title to the six acres in question.
The Utah Supreme Court agreed with EBF. The court listed the elements of a boundary by acquiescence claim: (1) occupation up to a visible line marked by monuments, fences, or buildings, (2) with mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners. The court then summarized the consistent evidence that the previous owners had for decades treated the old fence as the property line and that there was no evidence of any dispute as to whether the fence served that purpose. The evidence included testimony that when livestock would stray from one side of the fence to the other, the owner having to deal with the uninvited strays would say to his neighbor, “Your cows are on my property.”
Added note: The Utah Supreme Court also clarified that given the possibility that a boundary by acquiescence claim may have the effect of depriving a party of its property, the claim has to be established by “clear and convincing evidence.” The court concluded the EBF had met that burden.