Boundary by aquiescence

[flyfisher]

Utah

My adjoining neighbor is ripping down our long established 80 - 100 year old fence and is stating that it is on his property. He has plat maps that show that it may be a few inches off to his side which he states gives him every right to tear it down without my permission. I have told the neighbor "no" plenty of times arguing that the fence is actually an established boundary regardless of plat maps because it has been treated as such by us and the previous owners. He continues to vandalize our fence and the police have been called out a number of times. The police wont do anything as they state its a civil matter. My question is, do I have grounds to sue the neighbor for the damages he does to the fence and have him replace it? Or is the neighbor in the right because the plat map shows different?

 

[FarmerJ]

Plat maps can be wrong so have a boundry survey done.

 

[flyfisher]

http://utahcommerciallaw.com/2011/11/30/utah-boundary-by-acquiescence-dont-fence-me-in/


Page #4 Paragraph 1
http://propertyrights.utah.gov/booklet_your-right-to-private-property.pdf

 

[latigo]

Utah

My adjoining neighbor is ripping down our long established 80 - 100 year old fence and is stating that it is on his property. He has plat maps that show that it may be a few inches off to his side which he states gives him every right to tear it down without my permission. I have told the neighbor "no" plenty of times arguing that the fence is actually an established boundary regardless of plat maps because it has been treated as such by us and the previous owners. He continues to vandalize our fence and the police have been called out a number of times. The police wont do anything as they state its a civil matter. My question is, do I have grounds to sue the neighbor for the damages he does to the fence and have him replace it? Or is the neighbor in the right because the plat map shows different?

What the plat records and/or a survey would reveal as to the deeded boundary description is of no moment as the long established partition fence will prevail over all else. See: Botanical Farms, LC. Vs Kay 270 P.3d 430 (2011). 2011 UT 71

If the neighbor demolishes it, he is liable civilly for the cost of replacing it (Section 4-26-103 (4) of the Utah) right back where it was.

I suggest that you have your attorney send the contumacious jerk a cease a desist letter acquainting him with Utah law.

And someone should remind your local "bullet-in-the-shirt-pocket" Barney Fifes that vandalism is in deed a crime. Not that it would do any good.
_______________________

Also, flyfisher, when did you last cast a fly on the Henry’s Fork? Ever been on it during a Green Drake hatch?

 

[flyfisher]

The adjoining landowners reside in a residential area not rural. Does the code classify this as "qualified"? I am 99% certain that the neighbors are completely in the wrong in this case. We meet tomorrow with the ombudsman to try and settle this.

Re. The Henry's...Fished last opener..really good spinner fall hatch's, Drakes were a little late this year but we nailed the Salmon Fly's on the Maddy on time.
Landed a 24" bow just upstream from Trouthunter on a spent caddis around 8 pm

 

[flyfisher]

I have talked to a lawyer about this and he informed me that I would eventually win, but it would be difficult to prove IF they put the fence in exactly the same spot as the old one. I have just received another letter from the neighbor stating that they do not recognize the boundary by acquiescence claim I have shown them. They have furthermore stated that if I touch their fence they would charge me for trespassing and vandalism. This is getting out of control and I need to do something to cover my ass. Any help?

 

[rowz]

You have been given the answer to your inquiry already**************GET YOUR OWN FRESH SURVEY!!!!

They say one thing.....you claim the other. THEY [[according to you] have some evidence....YOU HAVE NOTHING.

You can do this now, at your leisure and with this proof in hand you may be able to defuse the situation and avoid a court action.

OR, behnd door #2 you do nothing except winge and fret over "what they are doing to me" and when confronted with a Court date have to hurry up & get the evidence [as outlined above] that will support your claims.

From what the legal expert [Latigo] posted Utah has established precedent covering these type issues, so the issue could be decided alongg those lines.

The issue can be settle once and for all with fresh surveys.

Good luck

 

[flyfisher]

You have been given the answer to your inquiry already**************GET YOUR OWN FRESH SURVEY!!!!

They say one thing.....you claim the other. THEY [[according to you] have some evidence....YOU HAVE NOTHING.

You can do this now, at your leisure and with this proof in hand you may be able to defuse the situation and avoid a court action.

OR, behnd door #2 you do nothing except winge and fret over "what they are doing to me" and when confronted with a Court date have to hurry up & get the evidence [as outlined above] that will support your claims.

From what the legal expert [Latigo] posted Utah has established precedent covering these type issues, so the issue could be decided alongg those lines.

The issue can be settle once and for all with fresh surveys.

Good luck

I don't mean to be difficult here, but did you read Latigo's response? Surveys are of no significance, there was a boundary by acquiescence, a fence separating the property, and that trumps any survey. I have talked with another lawyer today and he has stated that I file a TRO against the neighbor as the boundary line has been breached. let the courts figure it out. If I do nothing I wont have a leg to stand on in the future.

 

[flyfisher]

Just an update to this issue...The neighbor has continued his destructive ways and the police have been called out at least 10 times. The neighbor installed his fence and then took the fence down just to move it over a foot onto my property, or so he says it is his property. He has begun using libelous accusations by putting up rude comments on his sons windows about me that is facing my house. I have a documented time line, pictures, and police reports. I have retained a lawyer that says my case, with the preponderance of evidence, is clear cut and will surely win. While he said nothing is 100% he is confident 99%. We are asking for $75,000 which includes property damage, libel, criminal (Trespass, criminal mischief, vandalism), and a personal and emotional tort. We sent a cease and desist letter and demand letter stating that we want $6000 and the fence to be put back exactly where it was within 10 days or we are filing the rest of the lawsuit in court and asking for summary judgement. This will cover all the damages and make it right.

 

[FarmerJ]

SO what did your survey show to be the location of the lot line between the two of you ?

 

[HomeGuru]

SO what did your survey show to be the location of the lot line between the two of you ?

**A: and how "fresh" is it?

 

[Terminus]

Boundary by acquiescence;

Definition 1- In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights. Consequently, the person whose rights are infringed loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the infringer's conduct. The term is most generally a kind of "permission" given by silence or passiveness.

Definition 2- The common law doctrine of estoppel by acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches.

I feel that Latigo has hit the nail with his links......But you stated "inches" over the line. My first questions as a surveyor....Is where did your neighbor's surveyor actually locate the fence? Fence midline, at the face of posts, or at the back of posts because that can alter it's platted location a couple of "inches". If the fence was so close to boundary line......it was definitely defining it....but a couple of inches....come on. Since it does not appear you had a survey done when the fence was moved initially...we will never know. Worse yet, since you didn't get the fence line surveyed before it was moved....there is no way of knowing within a couple of "inches" where it was originally located.

Now you state the neighbor has moved the fence a foot onto your boundary....Well simple math clearly will show if the fence was a couple of inches of the line, then moving it a foot will definitely be crossing the boundary.

I do see you eating the neighbor up in court in the end....as the other stuff seems definitely excessive. I would like to hear about what your survey finds?

 

[flyfisher]

SO what did your survey show to be the location of the lot line between the two of you ?

http://utahcommerciallaw.com/2011/11/30/utah-boundary-by-acquiescence-dont-fence-me-in/

Plat maps are of no significant value in my case. Boundary by acquiescence trumps plat. The old fence was established by the original owners when the lots were separated in 1922. The old fence, regardless of plat, is the boundary line. The boundary has been breached and now there is no absolute interpretation of the boundary. This knucklehead even spray painted pink lines on my driveway one foot away from his property. I was going to repair my driveway now I have to deal with suing this jackwagon to do it.

 

[flyfisher]

**A: and how "fresh" is it?

2003 is the latest plat..and I am using it as evidence as it portrays the chain link fence on it. This gives me a 10 year history and with the previous owners statements it gives me much more than that.

 

[flyfisher]

Definition 1- In law, acquiescence occurs when a person knowingly stands by without raising any objection to the infringement of their rights, while someone else unknowingly and without malice aforethought makes a claim on their rights. Consequently, the person whose rights are infringed loses the ability to make a claim against the infringer, or succeed in an injunction suit due to the infringer's conduct. The term is most generally a kind of "permission" given by silence or passiveness.

Definition 2- The common law doctrine of estoppel by acquiescence is applied when one party gives legal notice to a second party of a fact or claim, and the second party fails to challenge or refute that claim within a reasonable time. The second party is said to have acquiesced to the claim, and is estopped from later challenging it, or making a counterclaim. The doctrine is similar to, and often applied with, estoppel by laches.

I feel that Latigo has hit the nail with his links......But you stated "inches" over the line. My first questions as a surveyor....Is where did your neighbor's surveyor actually locate the fence? Fence midline, at the face of posts, or at the back of posts because that can alter it's platted location a couple of "inches". If the fence was so close to boundary line......it was definitely defining it....but a couple of inches....come on. Since it does not appear you had a survey done when the fence was moved initially...we will never know. Worse yet, since you didn't get the fence line surveyed before it was moved....there is no way of knowing within a couple of "inches" where it was originally located.

Now you state the neighbor has moved the fence a foot onto your boundary....Well simple math clearly will show if the fence was a couple of inches of the line, then moving it a foot will definitely be crossing the boundary.

I do see you eating the neighbor up in court in the end....as the other stuff seems definitely excessive. I would like to hear about what your survey finds?

This is by far 100%, Definition #1 Boundary by Acquiescence...previous owners and I are the infringers

The original footings are still in place. They are cemented solid into place as they were in 1922. This will be the boundary location when the quiet title goes into effect.