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Show THE DAILY FOUft PAGE THURSDAY, DECEMBER RECORD 10, 1970 I Trust Deecls Release of Mortgages Tr to Carl Title( Sea 654 Inc Robert I Bowles Ktge MoGhle Land Ohran R 7821 So 3620 Di.to 656 664 in. Life Assu to Janes Eq 102 Kenneth Handley foundation Ino to Handley Luvfaer 103 Fairolough Brewer to dour Homes 798 Aetna Fin 808 etux 1st 813 105 106 Fed Sav to Wells S etux 107 W etux Dunn 108 835 Fletcher Lucas Ihv to Robert Jessee etux 837 SLC Fin Ct to Paul A etux G 846 Cr Pearson etux Yonkers Sav to George 125 Bk Ins to Leonard etux Ins to John 897 Prud 893 Ut Power Roe D In to Reese Cap Th A 146 L S Howell Ind In to Howard Allen etux 170 7865 S, V Jordan W 7865 S, W Jordan Ditto Val Richard Helen ' at? Jose Garcia etux R 5200 W George K dytia 3 Prows Gladen G Enterprises to Zions 1st Cowley Rt 221 of Ekberg v. Bates, 121 Utah 123, 239 P. 2d 205, points out that each case must usually be determined on its own facts. It was there stated: PFS; In the instant case as we have pointed out above there was a period of actual acquiescence for more than 7 years (the Utah limitations period for adverse possession) before appellants acquired their title and under all the circumstances shown herein that was a sufficient length of time to establish the line so that appellants are precluded from claiming that it is not the true line. fl, 415, Pleasant Grove Box Siren to Sharon Way, WLkr Bk 4 In his concurring opinion Justice Wolfe stated: Tr; 223 Under the facts and circumstances of this case, where of the establishment of the fence line plus continuing acquiescence thereafter, I am willing to agree that "acquiescence for a long period of time" heretofore required by our doctrine may be as short as seven years, thus conforming to the period provided by the statute of limitations for actions or defenses founded upon title to real property. Murrey there is positive evidence etux to 1st Sec $15096.63 Title; R 9S00 So, Sandy F Greer, a Wm etal Glendale Plaza Lie lley Bk; $50000. to Bk ... Va- Terry Saldivar etux to 1st See Bk Seo Tt; $16000. In the later case of King v. Fronk, 14 Utah 2d 135, 378 P. 2d 893, Mr. Justice Henriod in writing for the majority of the court said: Tamarack Rd V Boiled down, it seems to us that establishment of boundary by acquiescence 'may be predicated upon the existence of a visibly monumented line persisting for at least 20 years or upwards, shown specifically or circum- stantially, in order to meet or exceed the requirements of acquiring rights by prescription B 225 Clifford W Benjamin L La cox etux to Murray 1st Th Kay Lewis; $8950 177 Ulymous St, "dvl 227 5290 233 Hayes etux 1st Th Xay Lewis 1615 Wlnvard Dr Dallas G Jr 243 3ezuard A Riggs etux to Ktge Sec Tt; $16000. George . . . The parade of cases to date calls.: on equity to Jordan W Hur- 254 Gomla etux to flex its muscles only to pull the period below 20 years in the rarest of cases involving the doctrine of boundary by acquiescence. a visible, marked, boundary line between the land of the plaintiffs and defendants herein for over 21 years and the trial judge was fully warranted in holding that the appellants could not now question that There was WLkr 4 Tr; $12100. 443 Wldas 245 Assets W, W Wes Rddie Loya Torres etux to Inter Bldg Card on Abs; $16000. Bk 4356 So Colony Dr Ladd To Draper Bk; $1303.26; Thomas 1864 Mojave Dr to Hurray etux to Martin Th eaa; Ray ray 1st $11185.36 George F Moore etux to etux sec Tt; $213352 So 7152 So 1320 Karler Poulsen etux to Murray 1st Th; $9400. 1171 Buccaneer Dr Burton H Bartlett R 943 Gene etux to Fanrers sic to Zions 1st Nat; Donald Hopkins etux to tiirray 1st Th Kay Lewis; $3214.04 4696 So 3075 B 094 etux to Dalton The question as to the length of time required for a boundary by acquiescence to be established has never been definitely fixed. The case St Bk; $2028.81 SLCo 087 . Murray Brunson A 1195 034 "... Charles Wm EigLish to Miller 4 Viele Pioneer Tt Ins; $4500. Sec 1841 Soderberg etux to McKean Const Ws St Tt; $3514.32 Joe 083 It therefore The trial judge in deciding this matter stated: not clearly appears that the property line has only been established by long acquiescence, but further that the plaintiffs should be estopped from now asserting that the line, as established by the fence, is not the correct and proper boundary line, in view of their own conduct. ' Phil 209 $432. 143 So 10th 3 082 etux to Valley So 179 Way Nat; $60000.' 1744 orvnng Av 081 The appellants brought this action to quiet title to some two feet of. land and to compel the respondents to remove their garage which was built many years ago (sometime prior to 1948). Joseph S Baugh etux to St Sav 4 Pickett to Zions 1st V Bowers 068 PFS; to Stephen L Tripp etux to 1st See St Bk Wns St Tt; $12600. 1081 3 Kinro View Av, Sandy 180 fOOOf'. 1150 Augusta 039 etux to 4 Tr; $16000. Valley Bk V 026 It seems that the lota in the neighborhood were all about two feet over from the present-da- y survey. The appellants and their neighbor on the opposite aide from the respondents settled their differences so as to avoid litigation and to permit appellants to use the land which they thought they owned prior to the new survey. Jordan W Abelhouzen H Ut Mtge Tt; $32750. 7825 S, W $1856.52 4666 aabo . to KcCLeery etux K MoGhle Land 173 T Trust Deeds 025 It was one of the plaintiffs himself who tore down the fence and erected the retaining wall. He testified, that he thought he erected it on the property line. He also testified that when he purchased his property in 1961 the teller pointed out to him where the boundaries were and that he had a full 40 -- foot frontage to his property as shown to him. $13500. croft etux Valley 5k 4 Tr to George 0 Skelton etux 993 W SLCo Tracy Collins 3k to Harold How Jordan 4592 Sycamore Dr etux 951 trial court would be permitted to find that the fence a a erected in the same place unless there waa some proof to sho that it had been moved. Fences just do not move of their own accord, and if appellants thought that the location of the fence had been changed between 1948 and 1962 they should have presented some evidence to that effect. The Jordan W, W In; $20000. 4966 Ctr St, Gallegos ptux Ban Jordan SLC 130 etux Life Ins to Josenh Metro 946 W, W 3k; $5346. Gardner 4 Light En Cr to Donalc J Watkins etux 923 Jordan W 5211 to Fred Fem 127 Prud 899 W $16000. etux 849 W, Ava Nick Vatsis etux $24000. 6246 Lorre an Dr to lit Jerry Leslie Smith to Fad Sav line. The judgment is affirmed with costs to the respondents. Cap Th WE CONCUR: Gayle Dean Hunt; $1580.40 SLCo 255 Sheron R Dsspaln etux to Cap Gayle Dean Hunt; $2366.61 Th 13518 So 1700 W,Rvrtn ..." The trial court found a boundary by acquiescence in that a fence was erected by the then owners of the lots some 21 years prior to the commencement of this litigation. The appellants complain about that finding. While they admit that a retaining wall was constructed in 1962 and 1963 where the fence was, they say there was no proof that the 1948 fence remained until .1962. 2243 Wandsworth Cr Granite Teachers 841 Jordan 7865 S, 3649 123 Flemann W Ditto In A W, W 3601 Northwestern Kat Life to Wayne 834 Jordan Ditto 3601 Cbllard W would" be 3654 Dermis "... $12800. W, Ditto 7342 So 3725 New Splen- to Robert Co 10t ft; West Ditto 7964 So 3725 Standard Cr to Jerry Paxton etux 773 to .-, Ditto 7863 So 3620 G a-- Ditto 7829 So 3620 L Graham etux 747 reverse a trial court simply because the prevailing party does not answer the appeal, nevertheless the failure to file a brief or make an oral argument, as Justice Callieter aaid in hie concurring opinion in the case of Jonea v. Logan City, 19 Utah 2d 169, 428 P. 2d 160, lndicatea, to say the least, a indifference to as this court's disposition of the appeal. complete J. Allan Crockett, Chief Justice SLCo In The Supreme Court Of The State Of Utah E. R. Callister, Jr., Justice R. L. Tuckett, Justice Itallas W. B. Johnson and Jessie Johnson, hia wife, Plaintiffs and Appellants, No. 12072 v. FILED j R. II. Sessions and Hazel June Dean, Defendants and Respondents. HENRIOD, Justice: (Concurring) I concur because the direct and circumstantial evidence reflect a long of time, beyond the prescriptive period, where everyone acquiesced period in a monumentally visible line separating the adjoining properties. However, if the main opinion, by citing Ekberg v. Bates and calling attention to certain language of its author, Mr. Justice Wade, and the concurrence of Mr. Chief adverse possession statute, Justice Wolfe, with reference to the seven-ye- December 7, 1970 L. M. Cummings, Clerk ar ELI.ETT, Justice; This matter was commenced in 1969 and involves a boundary dispute between neighbors. The plaintiffs appeal from a ruling in favor of the defend--antclaiming that the evidence will not support the ruling of the trial court. No reply brief has been filed by the respondents. While this court does, not 9 s, occupancy provision therein has anything to do implies that ths seven-ye- ar with the doctrine of boundary by acquiescence, I would be bound to disagree. I think the references to such statute simply were observations, not suggestions, since the period of acquiescence justifiably found by the trial court in that case exceeded the prescriptive period. I think it only confusing to refer to those gratuitous and wholly unauthoritative observations. 20-ye- ar |