Act or operation of law

"And our acceptance of these doctrines is not a rejection of the benefits of our record title system, but a recognition that, at least in certain circumstances, there are other values that can outweigh those benefits." Q-2 L.L.C. v. Hughes, 368 P.3d 86, 95 (2016)

Here is a link to the Amicus brief from the Title Companies. Apparently adding risk to a business that profits from taking risk is a no go for them.

http://www.highterra.com/pdf/Q-2_v_Hughes-ACB.pdf

They don't know where to go to sort out these issues. I think its a natural area for a specialized surveyor to work, sort it out, locate the boundary, dispute prevention. Of course for the title industry parting with some of the booty for the services of a surveyor is just a no go for sure. I've spoken with one attorney that seemed surprised that a surveyor might be of use in these situations. More like the battle of the surveyors was how it worked instead of resolving the problems before dispute.

Also see Anderson v. Fautin, 379 P.3d 1186 (2016) which modifies all prior Utah Acquiescence cases. At Page 1195:
"å¦ 33 For the reasons discussed above, we affirm the court of appeals' decision. The occupation element in our boundary by acquiescence doctrine does not require a claimant to prove occupancy on both sides of a visible line. Instead, a claimant must show occupation up to a visible line on his or her property only. Since Ms. Fautin occupied her property up to the fence for over twenty years, she satisfied the occupation element." Emphasis mine.

Their theory seems to be that Acquiescence operates similarly to A.P. therefore there is a transfer of title. They criticize earlier cases that operate Acquiescence more in the line of contract where at least an implied agreement must be present. A mutual occupation requirement is rooted in proving up an agreement. They recognize that A.P. doesn't work because of the tax payment requirement and agreements are difficult to prove after several decades have passed. Utah's acquiescence doctrine appears to be a hybrid title-location doctrine.

Yeah, read and rereading all these cases, giving a presentation on the subject at our annual UCLS conference this year.

Here's the latest from Anderson v. Fautin:

å¦ 31 Therefore, to ensure clarity in future cases, our boundary by acquiescence doctrine requires a claimant to show: (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.

And as far as to element (3) - indolence or inaction on the non claimants side of the line IS mutual acquiescence. Do nothing and sit on your rights and a landowner can lose them.

It ain't so until the judge says so - completely wrong in Utah concerning boundary acquiescence!

Dave Karoly, post: 412966, member: 94 wrote: Also see Anderson v. Fautin, 379 P.3d 1186 (2016) which modifies all prior Utah Acquiescence cases. At Page 1195:
"å¦ 33 For the reasons discussed above, we affirm the court of appeals' decision. The occupation element in our boundary by acquiescence doctrine does not require a claimant to prove occupancy on both sides of a visible line. Instead, a claimant must show occupation up to a visible line on his or her property only. Since Ms. Fautin occupied her property up to the fence for over twenty years, she satisfied the occupation element." Emphasis mine.

Their theory seems to be that Acquiescence operates similarly to A.P. therefore there is a transfer of title. They criticize earlier cases that operate Acquiescence more in the line of contract where at least an implied agreement must be present. A mutual occupation requirement is rooted in proving up an agreement. They recognize that A.P. doesn't work because of the tax payment requirement and agreements are difficult to prove after several decades have passed. Utah's acquiescence doctrine appears to be a hybrid title-location doctrine.

The court says its a replacement for long term adverse possession which 41 states have but Utah doesn't. Court says we need it for some boundary problems and I agree completely. I think we are finally where surveyors should be able to take this one and do some good, raise our game, get it right and don't blow a great opportunity.

California only has a short term A.P. statute. 5 years, payment of taxes, either color of title or claim of right. Justice Shaw wrote in Price v. De Reyes, 161 Cal. 484 (1911) that since an agreed boundary establishes the boundary per the Deeds then payment of taxes would be presumed but our Courts are not exactly following the wisdom of the Shaw decisions from the early 20th century.

I haven't studied it completely but it appears the Establishment Doctrines came about as presumptions that acquiescence is evidence of the original location. My hypothesis, not proven, is that in the Western State Courts with the prevalence of unsurveyed tracts being created evolved the Doctrines into a legal affirmation of marked but non-original boundaries. They are a way to get around uncalled for monuments not controlling boundaries. In a Deed dispute monuments only control if called for but in an boundary dispute an uncalled for monument can control if it meets the elements of one of the establishment doctrines. I don't think most Justices today have much in the way of real property experience, much less boundary, so they may tend to view establishment doctrines as being antiques and obsolete.

The trend in California seems to be to leave boundary location to the experts which is Land Surveyors, at least they seem to think so. If a Land Surveyor persuades a trial court that the best evidence is these uncalled for pipes then the Appellate Court is very unlikely to reverse that due to the substantial evidence rule. Legal doctrines don't enter in so much because they view it as a question of fact for the Expert to advise them on. Complaints by Lawyers to the Appellate Courts that the Surveyor used the wrong law get dropped like a bad penny, they won't go there.

Dave Karoly, post: 412976, member: 94 wrote: California only has a short term A.P. statute. 5 years, payment of taxes, either color of title or claim of right. Justice Shaw wrote in Price v. De Reyes, 161 Cal. 484 (1911) that since an agreed boundary establishes the boundary per the Deeds then payment of taxes would be presumed but our Courts are not exactly following the wisdom of the Shaw decisions from the early 20th century.

Utah short term A.P about the same a CA except 7 years. Paying the taxes is hard because you need a tax description that covers the area. In Q-2 above that wasn't a problem, the Hughes had bare record title adverse possessing the area long lost to acquiescence.

LRDay, post: 412978, member: 571 wrote: Utah short term A.P about the same a CA except 7 years. Paying the taxes is hard because you need a tax description that covers the area. In Q-2 above that wasn't a problem, the Hughes had bare record title adverse possessing the area long lost to acquiescence.

Yes the twist in Q-2, I haven't seen that before.

Get the case briefs too, they can be enlightening. You find out the arguments the Court ignored and usually more detailed fact statements.

Dave Karoly, post: 412979, member: 94 wrote: Yes the twist in Q-2, I haven't seen that before.

Get the case briefs too, they can be enlightening. You find out the arguments the Court ignored and usually more detailed fact statements.

Yeah, it appears that if a Utah landowner shorted from his record description due to acquiescence can move the fence back to the record line and hold out for 7 years A.P. kicks in. Exactly the situation in Q-2. The opinion points that out.

I found out that I can get case briefs from the Utah State Law Library. Its about a hundred miles from me but they will email them if you pay a fee. The Q-2 brief cost me $5 and I had it in about three hours, less time than the drive and a lot cheaper than the fuel and wear on the truck.

LRDay, post: 412981, member: 571 wrote: Yeah, it appears that if a Utah landowner shorted from his record description due to acquiescence can move the fence back to the record line and hold out for 7 years A.P. kicks in. Exactly the situation in Q-2. The opinion points that out.

I found out that I can get case briefs from the Utah State Law Library. Its about a hundred miles from me but they will email them if you pay a fee. The Q-2 brief cost me $5 and I had it in about three hours, less time than the drive and a lot cheaper than the fuel and wear on the truck.

I get them from the Sacramento County Public Law Library. In Westlaw they have tabs across the top which have a table of authorities, citing references, and case briefs. Westlaw will deliver a list or table, or the documents, pretty handy.

Every County in California has a free public law library.

I am following a criminal case which is in appeal at the 3rd District Court of Appeals because I was a juror. If I wasn't so curious I could wait until the final opinion comes out then get everything for free but I can walk over to the 3rd District clerk's office and pick them up for $10 each (electronic copy). I wanted to know what their appeal is based on. The first appellant's opening brief is 25,500 words at 105 pages and the second one is 19,336 words at 72 pages (there are two defendants, we acquitted the third defendant so obviously she isn't appealing that). For $10 I get the document on a brand new 8gb flash drive, not a bad deal.

I think that's how it is in Utah. If you want the briefs before the case is done you can get them from the court. After the opinion is issued they send it all to the law library.

I can't walk to any law library (maybe from their parking lot after a minimum 50 mile drive). I sorta live in the boonies. Heck, almost all of Utah is the boonies compared to CA.