It is possible that the original deed description intended to mean "follow the existing fence line", but, if there is nothing to back that up but one person's opinion, it ain't the fence.
My advice in what appears to be a subjective case is if both neighbors are in agreement do a boundary line adjustment, that is the cleanest way to clear up the problem permanently.
Theoretically it??s not necessary because the existing agreement is valid (if there is one) but the question will just come up again in the future as soon as everyone forgets.
It is possible that the original deed description intended to mean "follow the existing fence line", but, if there is nothing to back that up but one person's opinion, it ain't the fence.
I wonder if that's true in Utah.
Anderson v Fautin Utah Supreme Court 2016
As the parties?? arguments demonstrate, we have made inconsistent articulations and applications of both the occupation element and the mutual acquiescence element in our precedent. Our inconsistent approach to the doctrine has largely resulted from the influence of two related doctrines on boundary by acquiescence disputes: boundary by agreement and adverse possession. Consequently, to clarify what the occupation element of boundary by acquiescence requires, we must consider the ways in which these two related doctrines have shaped our boundary by acquiescence jurisprudence.
As discussed below, we conflated boundary by acquiescence with boundary by agreement in our early caselaw. This led us to look for evidence of mutual occupancy in boundary by acquiescence cases. It also encouraged this court to look for evidence from which to imply consent by a nonclaimant to a boundary line. But our more recent cases have properly separated boundary by acquiescence from boundary by agreement, recognizing the close relationship between the former doctrine and adverse possession. Under this more recent caselaw, we have abandoned any mutual occupancy requirement, finding the occupation element satisfied when a claimant occupies his or her property up to a visible line. Accordingly, to the extent our early cases required a claimant to show that both parties occupied up to a visible line to satisfy the occupation element, we here expressly disavow any such requirement. Because the facts show that Ms. Fautin occupied her parcel up to the fence, we affirm the court of appeals?? judgment.?ÿ
From what I can tell the court is saying that if one side claims the fence as boundary and the other side does not respond for 20 years it satisfies the law. Whereas boundary by agreement requires a mutual agreement up front. I also see no requirement for a writing in a deed mentioning fences to meet the acquiescence requirement. I could be mistaken. This is based on my brief study of Utah court cases. I hope all Utah surveyors have spent more time studying than I have.?ÿ
I found this comment on the case from a law professor from TN.?ÿ
Boundary by acquiescence cases came to recognize that the nonclaimant should have objected but did not, in effect consenting by silence. This standard is much like the one employed in adverse possession cases, in which the nonclaimant is penalized for indolence. Thus, the goal in more recent boundary by acquiescence cases is not to find any type of implied agreement. Rather, the court asks if the claimant??s possession provided notice to the nonclaimant.
I don't think this is quite right.?ÿ My understanding is that they can only agree if the boundary cannot be determined by a careful review of the evidence.
This has been interpreted to mean different things. Do you mean determined by the math? Or without ambiguity?
The facts matter, but the code in my state makes it clear that two neighbors do not need a survey to establish a boundary line.?ÿ
Great! Please show me the document that says that, and I will be happy to use it as the basis of my survey.
If they can't produce the document (which is usually the case) then the next question is: "Who" intended it to be the boundary? A fence has 2 sides to it; if the neighbor has no recollection of that being the intention, then it's a one sided fence...
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Quote of the month right there!!