OCR Text |
Show In The Supreme Court Robert J. Wright and Rosemarie Wright, hit wife, Plaintiffs and Respondents) Richard L. Glissold and Joan O. Clissold, his wife, Edward L. . FILED May 1, 1974 Clissold and Irene P. Clissold, his wife, Defendants and Appellants. Allan E. Mecham, Clerk LUSTER, Chief Justice: Plaintiffs Initiated this action to quiet title to a parcel of land near Snyderville, Utah. Plaintiffs were record owners of approximately eight acres of land, and defendants were record owners of approximately 440 acres. Included within plaintiffs record title is an area of approximately acres to which defendants have asserted a claim under the doctrine of boundary by acquiescence. The matter was submitted to a jury upon special interrogatories, and the trial court made findings of fact in accordance with the answers of the jury and rendered judgment for the plaintiffs. Defendants appeal therefrom. 2-- State should the parties overcome, passive intent, the defendant, .hould prevail passive intent i. determinative, the plaintiff, ;P"' were four No. 13431 C MONDAY, MAY 6, 1974 INTERMOUNTAIN COMMERCIAL RECORD PAfiKSIX 14 Witness, Ivers, testified that in approximately 1962 he had a conversation with Mr. Loertscher who informed Tvern that hp rtirf nnt own all nf tfc meadow, but Mr. Hanley had given him permission to hay it. Mr. Loertscher denied the conversation and stated that he had conveyed the property to defend1 ants at the time of the alleged discussion. The trial court found that a visible and distinguishable fence line had been in existence for more than twenty years prior to the filing of this action in 1968. The defendants and their predecessors had occupied and made use of the property north of the fence line during this period. The plaintiffs and their predecessors had occupied and made use of the property to the south but not to the north of the fence line during this period. The parties and their predecessors in interest neither treated the fence line as a boundary nor did they acquiesce in said fence as the boundary between the parties. Based on the foregoing the trial court quieted title to the property in the plaintiffs. On appeal, defendants contend that although the parties or their predecessors had knowledge that the fence was not the boundary, their failure to do anything about it for a long period of time established the fence as a boundary by acquiescence. Defendants urge that in this type of case where the parties passively accept the fence line as the boundary for a requisite period of time, the parties need not have a necessary mental intent that the boundary be the fence line. Defendants assert that the sole issue is whether both parties must "intend" the fence line to be the boundarv. If the action of I . E. Dee Olpin, No. 13405 and Plaintiff Appellant, FILED e. equity. and In the instant case, defendants urge that the failure of plaintiffs their predecessors in interest to take affirmative action concerning the prothe fence as the perty north of the fence constitutes mutual acquiescence in that the fence boundary, regardless of any actual knowledge by the parties was not the boundary. In order to establish a boundary by acquiescence; it is not necessary that the acquiescence should be manifested by a conventional agreement, but recognition and acquiescence must be mutual, and both parties must have knowledge 4 of the existence of a line as a boundary line. 2-- 14 Mr. Loertscher testified that he became familiar with the property prerequi-.it- locating st in 1930 and at that time the fence appeared old; it was constructed of three barbed wires strung on aspen posts. He. testified that north of the fence the area was cultivated, i. e. , a crop of hay was planted. South of the fence there was sage brush, willows, and other brush. The fence was for the purpose of holding cattle; the cattle foragtd alter the. hay was cut; the fence prevented the cattle from wandering into a bog aouth of the fence. The witness testified that both the plaintiffs' and defendants' land was originally owned by the Peterson family, when he first became familiar with the fence. The Petersons had mortgaged 80 acres of their northern parcel to one Mr. Powers. Powers foreclosed on the mortgage and lock possession of the land; he continued planting hay up to the fence. Mr. Loertscher leased the land from Mr. Powers in 1944 and purchased it from him in 1946. Mr. Loertscher testified that he had assumed the fence marked the southern boundary of his property and cultivated the entire area. He testified that it was approximately in 1948 that Mr. Hanley informed him that the tence was not on the boundary. He offered to purchase the area from Hanley, who responded that he had to have his own ground. Subsequently, no one interfered with the cultivation of the area up to the fence. Mr. Loertscher admitted that he had never had any tion or made any agreement with anyone that the fence was the boundary. to In Fuoco v. William.2 thi. court .tated that there ( to e.tabli.h a presumption of boundary by acquiescence: fences or buildings, (2) mutual up to a visible line marked by monuments, for a long period of years, (4) by acquiescence in the line as the boundary, (3) are established, the court is readjoining landowners. Once these elements unless the party who quired to presume the existence of a binding agreement was no assail, it prove, by competent evidence that there actuallybeen a agreement proper agreebetween the adjoining landowner, or there could not have no (1) parties availment. Fact, which prove the latter include the following: exable to make an agreement, e. g. , sole ownership of the property with the to two or more other persons; isting line which was later transferred in tracts the absence a (2) the line was set for a purpose other than setting boundary; (3) or mistake of a dispute or uncertainty in fixing the boundary, and (4) possibly m the boundary on facts that would warrant relief inadvertence in Plaintiffs purchased their property in 1962; their vendor, Mr. Hanley, indicated that the boundary was approximately 250 feet north of a fence line direction. Mr. Hanley had purchased the that ran in a generally east-wehe in both and the plaintiffs have always paid the taxes the 19408; property the fence. on this of situated north acres Defendants purchased their property in I960 from Mr. Loertscher, who informed defendants that the adjoining landowner, Mr. Hanley, had served notification that the fence was not situated on the boundary. Defendants' deed does not include this disputed area and neither they nor their predecessors in interest have paid tuxes thereon. K The doctrine of boundary by acquiescence cannot be invoked in the instant action, since there was evidence that clearly implied that the fence was not built pursuant to an agreement between adjoining landowners. The evidence indicated that the fence was constructed to control cattle and not 1. Mr. Loertscher, after the sale, became a partner of the defendants and operated the farm until 1965. Utah 2d 282, 284, 421 P. 2d 944 (1966). 378 P. 2d 893 (1963); Ringwood 9, King v. Fronk, 14 Utah 2d 135, 1053 v. Bradford, 2 Utah 2d 119, 123, 269 P. 2d (1954). 4. Fuocco v. Williams, note 2, Bupra, at. 286 of 18 Utah 2d. to locate a boundary which was in doubt or uncertain. In fact, the evidence indicated that the person building the fence situated it upon his own land, and there was no neighbor to consult. The testimony indicated that as early as 1948 Mr. Loertscher was informed by the adjoining owner that the fence was not the boundary, and he conveyed this information to his vendees,' the defendants. The evidence of the physiography of the area was consistent with the 2. 3. 18 138-13- testimony that Mr. Hanley granted Mr. Loertscher permission to hay this acre strip, which was separated from the remainder of the property of Hanley by uncultivatable ground. In view of the evidence adduced at the trial, there was no basis to imply that the fence was built pursuant to an agreement between adjoining owners. As this court observed in Ringwood v. Bradford, 5 to hold that a defendant's belief, reliance, and occupation up to the fence line, without more, were controlling in a boundary dispute would be to ignore the statutory guides for adverse possession, since defendant had not paid taxes on that portion of the land which he claimed. 2-- 14 The judgment of the trial court is affirmed. plaintiffs. Costs are awarded to WE CONCUR: F. Henri Henriod, Justice Ellett, Justice R. L. Tuckett, Justice A. H. CROCKETT, Justice: (Concurring) I think there is merit to the defendants' contention that the mere failure to do anything about a fence dividing properties over a long period of years constitutes acquiescence; and that this can be true without any showing of actual knowledge or intent. Nevertheless, in this case there iB a reasonable basis in the evidence to support the view taken by the trial court that this fence was never established or intended as a boundary; and that this is sufficient to overcome the presumption that would normally arise from the existence of a fence between adjoining properties for so long a period of years. 5. Note 3, supra. 1 . April 30, 1974 Grove Finance Company, Defendant and Respondent. Allan E. Mecham, Clerk Justice: CROCKETT, " The issue presented on this appeal concerns the obligation of the defendant Grove Finance Company on a $10,000 bond it issued to the plaintiff E. Dee Olpin. Plaintiff's position below, and persisted in here, is that he is entitled to the full face amount of the bond, together with the 10 interest thereon, from the date of its issuance; whereas, the defendant contended that it was obligated only to pay the principal, and intere.t thereon, in the amount, and from the time deposit, were made by the plaintiff to pay for the bond, $6,000 of which was subsequent to it. issuance. Upon a trial to the court, it made findings and entered judgment in accordance with the defend- ant's contention.. Plaintiff appeals, charging that the trial court erred in: (1) permitevidence to contradict the terms of the debenture; (2) allowing extrinsic ting evidence of failure of consideration, to dispute its terms, without that having been pled; (3) improperly placing the burden of proof on plaintiff on that issue; and (4) in failing to award plaintiff's attorney1, fee. de-fen- se I Most of the facts are not in dispute. Sheppard Hal Haycock is, and for many years has been, the principal stockholder, president, and managing officer of the defendant Grove Finance Company. He encouraged his friend, plaintiff Dee Olpin, to deposit money on the promise of 10 interest. It is not questioned that over a period of years Olpin made substantial deposits; nor that the $10,000 bond upon which this dispute centers was is sued July 1, 1963, by the defendant, payable to the plaintiff, and was in form, negotiable to bear interest at 10 per annum. , Plaintiff's position and his evidence is to the effect that to that date there had been made deposits to his credit totaling $6,000; prior that on June 25, 1963, he made a further deposit of $4, 000 which completed payment for the bond. Defendant's contention and version of the transaction is that the $4,000 was the initial payment; and that the balance was to be paid in subsequent deposits. It concedes that the plaintiff's subsequent deposits paid the full purchase price of the bond. It bo acknowledged in its answer; and so states in its brief: The defendant always asserted that the initial made on the bond . . . was $4,000 made June 25, payment 1963, and that the full consideration for the bond was paid in installments subsequent to its issuance on the dates and in the amounts set forth in the appellant's statement of facts and in the court's finding The statement of fact, so accepted by the defendant include, the following depo.it. made to plaintiff, credit with the defendant finance company, which (Continued on pag 1) |