Sort of a different twist on boundary by acquiescence. Seems the boundary can revert if the visible boundary isn't maintained when new buyers purchase without notice of the agreement (fence in this case).
> Sort of a different twist on boundary by acquiescence. Seems the boundary can revert if the visible boundary isn't maintained when new buyers purchase without notice of the agreement (fence in this case).
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The doctrine of boundary by "un-acquiescence?" So, the boundary that was "uncertain or in dispute" which led to the settling of that uncertainty or dispute and resulted in the erection of the fence line which had provided the "notice" since 1929 ... is now made "uncertain" again because the fence remnants are found in a dilapidated condition? If the boundary has returned to its former state of "uncertainty," how is it that the parties can prevail as BFP's who claim to know (with "certainty") where the "uncertain" boundary is?
I can see some logic in allowing the subsequent actions of landowners, once a boundary has been established and the evidence allowed to fade to oblivion over time, to reestablish their line in good faith based upon currently prevailing evidence. But to say that the faded evidence has now "unestablished" what was once "established," seems to return the boundary to an unknown position. I guess it's up to the owners to return to the land and work out a new agreement as to the boundary location, now that the court has ruled they really don't know where it is.
I "guess" that make sense? ~:P
JBS
from the case:
The district court's analysis as to the second element of boundary by agreement or acquiescence was erroneous. The uncontroverted evidence shows that the fence was built in 1929 and maintained until 1972; the appropriate inquiry would have been whether Appellants submitted sufficient evidence from which the fact-finder, here the district court, should have inferred that an agreement to treat the fence as a boundary was made during that time period. The district court focused on the period from 1972-2002 in its analysis.
However, this error is harmless. Having found that the Greens were BFPs who purchased the property without notice of any boundary by agreement, such an agreement would not have been binding upon the Greens, even if it did exist. See Luce v. Marble, 142 Idaho 264, 271, 127 P.3d 167, 174 (2005).
Sort of a go-back policy I suppose. I haven't ever seen this in Utah law but I haven't read ever possible case either. Let's hope it stays north of the border!
Just another straw-man argument to record the Sledgehammer shotgun quit-claim deed that will fix every problem without any boundary analysis or acknowledgment of common law. Once we've forced all the private landowners to quit-claim to their long settled boundaries and doubled the mess in the public records, well, then everything will be peachy.
Going from memory here (I haven't read this one lately), but if this is the case concerning properties on Moscow Mountain in north Idaho, I think the case pretty much hinged on whether or not the remains of the old fence was enough to put a BFP on notice of the agreement, which makes sense. If a boundary was agreed upon in prior years, there must be something on the ground or in the record to put subsequent purchasers on notice that the agreement existed.
There are a couple of cases in Idaho (I'll try & find them later), where the court refused to say a boundary by agreement/acquiescence existed beyond the end of a fence where only a portion of the line was fenced or there were no other markings delineating the boundary. But I beleive they have held in at least one case where a clearly defined field edge was sufficient to evidence the boundary doctrine claimed.
Well, that's the thing. Unwritten contracts don't make much sense when they involve long term rights that others will be involved in. If you have an agreed boundary write it down. If you can't get it written down, then there probably wasn't much of an agreement. And, if you write one down, then people should be able to rely on it. Beating the bounds just doesn't cut it unless you have a society of surfs. Course we may be headed back your way. But until then, written contracts control when there is evidence both ways.
