Here is RECENT Utah Law
I posted this to the old thread but carry it over to here.
Here is a 2011 opinion by the Utah Supreme Court
So let's look at acquiesence. Does my case meet all 4 requirements?
B. Boundary by Acquiescence
¶ 35 The doctrine of boundary by acquiescence is rooted in policy considerations of "avoiding litigation and promoting stability in landownership." Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). It "derives from [the] realization, ancient in our law, that peace and good order of society [are] best served by leaving at rest possible disputes over long established boundaries." Id. (internal quotation marks omitted). A successful invocation of boundary by acquiescence requires a showing of the following four elements: "(1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a long period of time, (4) by adjoining landowners."[7] Id. at 420 (internal quotation marks omitted).
¶ 36 The first element may be satisfied where land up to the visible, purported boundary line is farmed, occupied by homes or other structures, improved, irrigated, used to raise livestock, or put to similar use. See id. In evaluating whether this element is satisfied, courts should consider whether a particular "occupation up to a visible line" would place a reasonable party on notice that the given line was being treated as the boundary between the properties.
¶ 37 The second element is satisfied where neighboring owners "recognize 66*66 and treat an observable line, such as a fence, as the boundary dividing the owner's property from the adjacent landowner's property." Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781. This element is met where neighbors do not "behave[] in a fashion inconsistent with the belief" that a given line is the boundary between their properties. Staker, 785 P.2d at 420. Failure by the record title owner to "suggest or imply" that the dividing line between the properties is "not in the proper location" suggests acquiescence. Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Nonacquiescence in a boundary would be signaled where, for example, a landowner notifies the adjoining landowner of her disagreement over the boundary, or takes action inconsistent with recognition of a given line as the boundary, such as tearing "down significant portions of [a] fence and, without objection by [the adjoining landowner], proceed[ing] to plant trees and shrubs, store firewood, and construct a chain link fence in a different location." See Staker, 785 P.2d at 421.
¶ 38 To satisfy the third element, an unbroken period of no less than twenty years must pass during which each of the other elements is continuously met.[8] See id. at 420; see also Parsons v. Anderson, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of mutual acquiescence was insufficient). To satisfy the fourth element, "the parcels involved" must be "contiguous." Staker, 785 P.2d at 420.
2009 Utah Opinion - The boundary doesn't need to be unknown for acquiescence
¶ 3 Under Utah's boundary by acquiescence doctrine, a party is no longer required to establish that the true boundary is "unknown," as Florence v. Hiline Equipment Co., 581 P.2d 998, 1000 (Utah 1978), required, see Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781, or that there is "objective uncertainty" regarding the true boundary, Staker v. Ainsworth, 785 P.2d 417, 424 (Utah 1990) ("overrul[ing] the fifth [boundary by acquiescence] requirement of objective uncertainty contained in Halladay v. Cluff"). See Halladay v. Cluff, 685 P.2d 500, 503-05 (Utah 1984). Instead, to establish boundary by acquiescence, a party must establish only four elements: "(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners." RHN Corp., 2004 UT 60, ¶ 23, 96 P.3d 935 (citation and internal quotation marks omitted). See id. 30 (stating the "long period of time" element mean(s) at least twenty years).
And this tidbit:
Ault v. Holden, 2002 UT 33, ¶ 20, 44 P.3d 781 (stating that record property owners "must . . . take some action manifesting that they do not acquiesce"); id. ¶ 19 (indicating acquiescence may be shown "regardless of whether the landowner knows where the actual boundary lies or whether the boundary is uncertain"); Lane, 505 P.2d at 1200 (indicating a landowner may "'consent by silence,'" or inaction when "a fence. . . appears to be a boundary").
2004 Utah case - Explaines acquiescence
And somewhere in my reading is was stated by the court that since Utah has weak adverse possession they intended for acquiescence to take up some of the slack.
Keith,
What you say is logical and it kind of defies the senses to think of an agreement as changing the boundaries or the section corners so to speak, but the agreement of the division line does not change the deed as I understand it.
Tom,
I have to say up front that as a BLM surveyor, in the field and in the headquarters office, I did not amend descriptions or have anything to do with changing the descriptions if the line accepted was a fence line that did not line up with an existing legal PLSS corner.
I accepted many fence lines, fence corners for the accepted boundaries between private and Federal, and they all were considered the PLSS subd. of sec. lines that bounded the aliquot part descriptions.
I did not have the authority to tell the landowner that his fence line was not the boundary between the Feds and his land. It either was and I accepted it or it was not and I did not accept it.
Keith
Here is RECENT Utah Law
LR
well done, I knew you wouldn't finish a survey without a well reasoned opinion. I might add that those requirements make it easier to recognize acquiescence since it makes the original line that is certain or uncertain irrelevant. I was also interested to see your comment on acquiescence law covering for AP because this example leans toward my understanding of AP in some ways. I think it gets a little cloudy when you take a title doctrine and cover it with a boundary location doctrine. If it is a simple boundary location problem there is no concern with the current description but if you add a title problem into it I'm not so sure. When you remove uncertainty as a location requirement it almost seems like you are adding uncertainty to the title. Just some musings.
"I'm not going to call the fence the quarter section line, just the boundary (but it is the boundary according to the original description and the boundary by acquiescence). That's the hard part for many surveyors to get their heads around but it is the law."
I don't think it's hard for surveyor's to get the heads around this. I just think many of us would rightly object to it as a logical way to handle the problem. And I think the public will certainly be confused.
What you end up with are multiple descriptions, containing identical statements, that can not be reconciled. If there has been acquiesence in each quarter, then for example, one would have five differing section 7's (the original as well as the 4 that each quarter is described within individually) and have to figure out which one is being talked about in each of the differing deeds.
That's one of the reasons most jurisdictions require an uncertain boundary in order for acquiesence to be considered. Those deed boundaries that can be found, and have been disregarded by an implied agreement over many years, should be handled in some other way.
I think the law would be better to recognize that one party agreed to abandon whatever property is on one side of the fence and the other party agreed to accept it. Then the surveyor could write a description that makes sense and not confuse the heck out of everyone else.
I agree their is an issue where the boundary has been altered but according to the law no land has been conveyed. The courts have explained it but it's not all that easy to understand (especially for math nerds including a lot of folks that are not surveyors).
I've thought and thought and thought about how this might be addressed through some statutory law but so far no idea has been tried. There is a problem that the recorders and title industry may not accept this, maybe refuse to insure and thus put it back to the old exchange quit-claim deeds. For now I think we just put the evidence down on a survey plat (which in Utah becomes a filed public record) showing where the established boundary is. The plat with it's evidence as to the boundary location is there for anyone to look at and hopefully follow. The plat has the numbers on it to locate the boundary. The record doesn't change but the measured is updated as needed and shown clearly by the survey data.
Following the common law and understanding it by all can be an issue. I've seen attempts to codify the common law and they can turn out badly also. Rewriting the description I think is bad as it is an attempt to reform a deed (contract). That's why I believe the courts have taken the route they have as it avoids the Statute of Frauds issue where land must be conveyed in writing (and in these cases there is no land conveyed according to the courts). We just need to come up with a way to get the shapefile into the GIS (land records) so that it shows the reality on the ground (established boundaries) and doesn't trip the ignorant system into passing out quit-claim deeds to every party doing a land transaction. I think everyone knows there is a mess but the resolution is evasive for sure (and I've thought about it a lot).
I think the non survey filing states have a much bigger issue with this as there is no way to publicly show where boundary determinations have been made. So there the urge to start rewriting every description comes into play. Maybe this boosts up the uncertainty claim as you might be able to pull several descriptions for the same (maybe) property straight out of the official records, uncertainty for sure. There wouldn't be multiple descriptions if surveyors (and others) would stop writing them. If we would adhere to the rules for deed reformation then this problem would go away (no rewriting a description and attempting to reform the deed - rewrite the contract). It took me the longest time to sort out that the title records (who owns the property) and the location records (where the boundaries are, surveys we hope) don't need to be in perfect sync mathematically. Yet that seems to be what society hopes for. Maybe Utopia will exist someday but I'm not holding my breath or waiting by the phone.
