Utah Appeals Court struggling with with when *title transfers* as a result of acquiescence to a boundary line. Seems to me they are a bit out of touch with the law but in a way the title does transfer as a result of the establishment of the boundary line.
Seems acquiescence to the boundary had occurred many years before. Then a new owner using the old record title moved the line to the record boundary and after 10 years may have a valid adverse possession claim. Adverse possession to the old record title line, sort of a special twist in the life of a boundary line!
So, are we to gather that all of the courts who heard this case weren't satisfied to have a surveyor just *tell* them where the boundary was? Was the basic problem that the fence wasn't in very good shape but the parties hadn't hired a professional fence company to come out and establish their common boundaries for them?
There is no mention of a survey or a surveyor in the case. No fence company either.
The interesting part for me was the discussion of when acquiescence clicks in so to speak. The court decided that the boundary was established by the old fence no later than 1971. So based on that the adverse possession claim could move forward against the title based upon acquiescence which hadn't been adjudicated, but the court said the title transferred no later than 1971 and didn't require court action. The one judge is a bit concerned and I can see why, we have thousands of these established boundaries and overlaps of bare record title. They haven't been adjudicated but the law, as per this case, says the title has already transferred.
So what should a surveyor do when faced with these situations? Probably of no concern in Texas, Utah is a different story.
As you noted, the one judge's statement of concern:
"This will mean that some real estate titles will be other than as shown by recorded documents, other than as memorialized in judicial decrees, and other than as an inspection of the property would suggest. The resulting uncertainty seems to guarantee a level of risk that is anathema to prospective real estate buyers as well as title insurers."
I couldn't agree more. Not to divert the discussion, but if the Utah rulings applied to the state I practice in, things would be a much bigger mess than the mess we already have. Many areas we find remnents of multiple fences of various states of decay. Trying to place establishment of ownership and timelines on them would most often be a ridiculous attempt. I'm thankful Ca courts give little weight to fencelines and place most elements of fee ownership on the true surveyed lines and the sanctity of the written instrument.
> "This will mean that some real estate titles will be other than as shown by recorded documents, other than as memorialized in judicial decrees, and other than as an inspection of the property would suggest...."
The way it is and always has been. This judge seems surprised by that.
>"....The resulting uncertainty seems to guarantee a level of risk that is anathema to prospective real estate buyers as well as title insurers."
Better get it surveyed. By a competent surveyor, not a deed staking robot.
More like get it surveyed by a competent archaeologist who can datestamp the fences. No need for a surveyor since deeds and monuments have no value in Utah.
Yes, so predictable. Whoever can occupy for 10 years gets it, either by deed or fence or whatever. When you move away from retracement (however slim or contradictory the evidence), you move away from stability of land boundaries. The title people can't understand that because things are not described perfectly does not mean there are gaps and overlaps.
Boundary anarchy!
"My grandad put up that fence 11 years ago, so I guess that is the property line, ain't it".#)^&%$*^
I repeat - there is nothing in the case that is out of the ordinary. No new precedence is set by this ruling. What the Utah court describes could have just as easily happened elsewhere, and has. And, BTW, the court did not rule on the AP claim other than to remand it to lower court for trial.
Nevertheless it's a great story and food for thought. I first became interested in reading cases when I came across the Oregon case of Nooteboome v. Bulson , which has a similar time element issue.
Maybe a solution would be to start recording fence construction at the county recorder. If a fence is moved, one would need to perform a fence line adjustment process.
Of course, if one desires to cross fence one's own land, then it would entail a fence-division.
'cause, without a fence, you got nuthin.
But seriously. I do find it curious the court didn't factor the consideration of "appearance" of title. Under that consideration the tolling period may have been in place, however the title itself isn't perfected until action by the courts or until the owners perfect the title by recording documents to the effect of providing written constructive notice. Although the appearance of title may be in place, it can also disappear without the perfecting action.
Case in point, I was out surveying a ranch last week and noticed that fire fighting efforts the summer before had resulted in a dozer line wiping out about a quarter mile of fence line. If it was in Utah, that would be lost evidence of location but would still be considered the long-acquiesed line and therefor "established" boundary.
On another part of the ranch, I found multiple fence lines of varying states of decay and vintage along one boundary. What a mess, that is, if I was in Utah.
> ....If it was in Utah, that would be lost evidence of location but would still be considered the long-acquiesed line and therefor "established" boundary.
Also in Oregon, Washington, and Oklahoma. I suspect in 46 other states, too. What about yours?
> On another part of the ranch, I found multiple fence lines of varying states of decay and vintage along one boundary. What a mess, that is, if I was in Utah.
Maybe, Maybe not. Part of the requirement for an unwritten agreement is always that the line be marked out on the ground in some definite fashion such as with a fence line. Multiple fence lines would tend to defeat that.
I think it is unusual, in fact very unique, standalone even.
My recollection is that Utah statutes have stated that title changes hands under their acquiesced line law. That being the case, under the circumstances of this action, they need to determine when title changed hands. This leads of course to the standard law that title passes when all elements are satisfied. But it leaves the court in a sticky position because the standard law they must rely on was not ever developed from or applied to a similar set of circumstances.
The closest it comes to anything similar is an adverse possession, followed by an adverse possession. But that is not the same here because the record line is still at play. It is being used as color of title and proof of taxes paid, which would not be possible if an earlier AP had been adjudicated.
The Justice is correct when he stated that a new law is needed to deal with the unique acquiescence law of Utah. Or they need to treat it the same as AP and start a new chain of title, so that color of title prior to the acquiescence is not allowed. But then, they have essentially created AP law on top of acquiescence law with no difference really between the two.
I see nothing but problems with Utah's unique approach to the matter. On the other hand, one could say there is a certain amount of justice in it for those who knew nothing of any previous unwritten agreement and expect to get the land described in their deed.
This all should make one wonder about the concept of moving the fence to the line the next time they rebuild the fence. So just stake the deed line so to speak while ignoring the ancient fence. Then the parties which seem OK with this can move the fence back to the line next time they rebuild the fence. Might not be that simple, the parties may need to adjust the line (convey to the altered line - new fence).
If this all just makes land surveying to complicated all I'd say is the law is the law and if you are going to work in this arena you need to understand the law.
> ... all I'd say is the law is the law and if you are going to work in this arena you need to understand the law.
:good:
Adverse possession/Aquiescence - Utah 2014 JB?
This decision seems to agree with what JB Stahl has been saying for a long time. I don't see a problem. The title line was established on the old fence line by legal means. There it remains as long as it's visible. If the land outside the fence is held adversely for the required period and it can be proved why would adverse possession not apply?
What say you JB?
Where do these Justices get their law degree? Out of a Cracker Jack box?
That opinion is a mess.
There is no title transfer in the Acquiesence and Agreement Doctrines, this is fundamental. This is how they avoid violating the Statute of Frauds.
How do they know where the record line is anyway? Maybe the fence is the original boundary.
"It is stated by the authorities that the line so agreed on becomes in legal effect the true line, that the agreement as to the line may be in parol and that it does not operate to convey title to the land which may lie between the agreed line and the true line, but that it fixes the line itself and the description carries title up to the agreed line, regardless of its accuracy; that the agreement as to the line is not in violation of the statute of frauds, because it does not transfer title; that the parties hold up to the agreed line by virtue of their original deeds and not by virtue of the parol agreement; that "the division line when thus established, attaches itself to the deeds of the respective parties, and simply defines, not adds to, the lands described in each deed," and that if more is thus given to one than the calls of his deed actually requires, he "holds the excess by the same tenure that he holds the main body of his lands."" (citations omitted) -Young v. Blakeman, 153 Cal. 477 (1908) bold by me
I said I thought they were struggling didn't I?
> How do they know where the record line is anyway? Maybe the fence is the original boundary.
[sarcasm]Given the prohibitive cost and inherent inaccuracies of performing a survey "on the ground" the court accepts county's GIS line on the county website as incontrovertible evidence of the record line and hereby establishes the boundary by acquiescence to the fence to quiet title to the disputed area clearly shown on said website.[/sarcasm]
Gotta be a survey that's just not referenced I pray.
Steve