Q-2, LLC v. Hughes

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
2014 UT App 19
_________________________________________________________
THE UTAH COURT OF APPEALS
Q-2, LLC,
Plaintiff and Appellee,
v.
WAYNE L. HUGHES SR. AND PATRICIA L. HAMPTON-HUGHES,
Defendants and Appellants.
Opinion
No. 20120607-CA
Filed January 24, 2014
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 080700575
John M. Webster, Matthew A. Bartlett, and Brian J.
Porter, Attorneys for Appellants
David J. Shaffer, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored the lead opinion, in
which JUDGE GREGORY K. ORME and SENIOR JUDGE PAMELA T.
GREENWOOD concurred. JUDGE GREGORY K. ORME authored a1
concurring opinion, in which SENIOR JUDGE PAMELA T.
GREENWOOD concurred.
CHRISTIANSEN, Judge:
¶1 Wayne L. Hughes Sr. and Patricia L. Hampton-Hughes (the
Hugheses) challenge the trial court’s grant of partial summary
judgment to Q-2, LLC on the Hugheses’ claim of adverse
possession of a disputed parcel of land. We reverse and remand.

Q-2, LLC v. Hughes
2. On appeal from a bench trial, we recite the facts in a light most
favorable to the trial court’s findings. Bel Courtyard Invs., Inc. v.
Wolfe, 2013 UT App 217, ¶ 2 n.1, 310 P.3d 747. However, because
the Hugheses challenge the pretrial grant of summary judgment to
Q-2 on their adverse possession claim, we recite the facts relevant
to that claim in the light most favorable to the Hugheses as the
nonmoving party. See Ross v. Epic Eng’g, PC, 2013 UT App 136, ¶ 2,
307 P.3d 576.
20120607-CA 2 2014 UT App 19
BACKGROUND
¶2 This case involves a disputed property boundary between
neighboring parcels of land in Syracuse, Utah. The dispute arises2
from a discrepancy between the recorded property lines and a
fence line that separated the Hugheses’ property from the
neighboring parcels to the east from approximately 1927 to 1971.
At the time the Hugheses purchased their property in 1998, the
fence had deteriorated, and the Hugheses subsequently occupied
and used the property up to the record property line.
¶3 In 2001, the owner of a parcel adjoining the Hugheses’
property brought an action against the Hugheses seeking to quiet
title to the property between the record property line and the
former fence line on a theory of boundary by acquiescence. Dahl
Inv. Co. v. Hughes, 2004 UT App 391, ¶ 4, 101 P.3d 830. There, the
district court concluded that a boundary by acquiescence had been
established by the prior owners’ acceptance of the fence line as a
boundary from approximately 1925 to 1965, and this court
affirmed. Id. ¶ 11. In doing so, we rejected the Hugheses’ argument
that their subsequent non-acquiescence to the fence line as a
boundary defeated the plaintiff’s claim. Id. ¶¶ 10–11.
¶4 In late 2008, Q-2, another adjoining landowner, brought the
present quiet title action to adjudicate the boundary between the
Hugheses’ property and its own. While Q-2 was not a party to the
Dahl litigation, Q-2 alleged that a boundary by acquiescence had

Q-2, LLC v. Hughes
3. The property owned by Q-2 is bordered to the north and south
by the property that was the subject of the Dahl litigation.
20120607-CA 3 2014 UT App 19
been established by the mutual acquiescence of Q-2’s and the
Hugheses’ predecessors-in-interest to the same fence line that was
at issue in Dahl. The Hugheses filed a counterclaim alleging that3
notwithstanding Q-2’s boundary by acquiescence claim, the
Hugheses had adversely possessed the disputed property
subsequent to the establishment of the boundary by acquiescence.
¶5 Before trial, Q-2 moved for partial summary judgment on
the Hugheses’ adverse possession claim. Q-2 argued that because
the Hugheses believed the disputed property to be their own and
because they had not possessed the land for seven years beyond
the date when the boundary by acquiescence was adjudicated, the
Hugheses could not establish a prima facie claim of adverse
possession. The trial court granted Q-2’s motion for partial
summary judgment and dismissed the Hugheses’ adverse
possession claim with prejudice. The case proceeded to trial, and
the trial court found that the parties’ predecessors-in-interest had
mutually acquiesced to a boundary at the old fence line from at
least 1927 to 1971. The trial court therefore concluded that Q-2 had
successfully proven its claim of boundary by acquiescence, ordered
the boundary between the parties’ properties established at the
location of the old fence line, and quieted title to the disputed
property in Q-2.
ISSUE AND STANDARD OF REVIEW
¶6 On appeal, the Hugheses challenge only the trial court’s
grant of summary judgment to Q-2 on the Hugheses’ claim for
adverse possession of the disputed property. We review the trial
court’s grant of summary judgment for correctness. Orvis v.
Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

Q-2, LLC v. Hughes
20120607-CA 4 2014 UT App 19
ANALYSIS
¶7 The Hugheses concede that the trial court correctly
concluded, based on the evidence presented at trial, that Q-2 had
established its claim of boundary by acquiescence. Their only
contention on appeal is that the trial court erroneously dismissed
their claim of adverse possession. The Hugheses argue that legal
title to the disputed property passed to Q-2’s predecessor-in-
interest no later than 1971, when the elements of boundary by
acquiescence were established, and that the Hugheses’ possession
of the property after 1998 was therefore adverse to the legal title as
required by statute. Conversely, Q-2 argues that the Hugheses held
legal title to the disputed property until the trial court ordered title
quieted in Q-2 at the conclusion of trial on its boundary by
acquiescence claim and that the Hugheses’ possession of the
property prior to that time was therefore not adverse to the legal
title. Thus, to evaluate the Hugheses’ adverse possession claim we
must first determine when legal title to the disputed property
passed to Q-2 or its predecessor-in-interest.
I. Legal Title to the Disputed Property Passed to Q-2’s
Predecessor-in-Interest at the Time the Elements of Boundary by
Acquiescence Were Met.
¶8 The Hugheses argue that legal title passed to Q-2’s
predecessor-in-interest by operation of law once the elements of
boundary by acquiescence were met. We agree. A boundary by
acquiescence is established when, for a period of at least twenty
years, adjacent landowners mutually acquiesce to a visible
boundary line and occupy the property up to that line. See Jacobs v.
Hafen, 917 P.2d 1078, 1080 (Utah 1996). The determination of when,
for purposes of adjudicating the rights of later possessors, the legal
title to property transfers under the boundary by acquiescence
doctrine appears to be an issue of first impression for Utah Courts.
However, we find clear guidance in our supreme court’s boundary
by acquiescence jurisprudence.

Q-2, LLC v. Hughes
20120607-CA 5 2014 UT App 19
¶9 In Brown v. Peterson Development Co., 622 P.2d 1175 (Utah
1980), our supreme court considered a factual scenario similar to
the one at issue here. The plaintiffs owned a parcel of property
abutted to the east by three lots owned by the defendants, and
divided from those lots by an old fence line and irrigation ditch. Id.
at 1176–77. The plaintiffs claimed ownership of all land west of the
fence line, despite the fact that some parts of that land were
described in the defendants’ deeds. Id. at 1177. The court concluded
that undisputed evidence demonstrated that the parties’
predecessors-in-interest had acquiesced to the old fence line as the
boundary line between their properties for more than forty years,
and had occupied and utilized the property in accordance with that
boundary line. Id. The court held that the plaintiffs’ predecessor-in-
interest, Reynold Johnson, had acquired title to the disputed
property west of the fence line by operation of law under the
boundary by acquiescence doctrine. Id. The court observed that the
defendants’ “legal title to any part of the disputed strip of land had
been extinguished when Johnson’s occupancy and possession had
ripened into a legal title” and that the defendants held only “bare
record title to any land west of the old fence that was embraced
within the descriptions in their title documents.” Id. Notably, the
court understood this “ripening” of Johnson’s legal title to have
occurred prior to the conveyance of Johnson’s property interest to
the plaintiffs and, by extension, prior to the parties’ litigation over
the boundary. See id. at 1178 (“The later quitclaim deeds passed the
legal title to [the plaintiffs].”). The court concluded that the “title
lost by defendants’ predecessors by virtue of the operation of the
doctrine of boundary by acquiescence did not revert to the
defendants” once the record boundary line was subsequently fixed
by survey, but “legal title to the disputed strip remained in
Reynold Johnson or his grantee or successor in interest, from whom
the plaintiffs received their title.” Id.
¶10 In RHN Corp. v. Veibell, 2004 UT 60, 96 P.3d 935, our supreme
court considered another boundary by acquiescence claim based on
the parties’ recognition of a fence line as their property boundary.
There, the evidence established that the parties and their

Q-2, LLC v. Hughes
20120607-CA 6 2014 UT App 19
predecessors-in-interest had mutually acquiesced in the fence line
as their boundary from 1938 until at least 1979, when one of the
landowners may have discovered the true boundary line. Id. ¶ 30.
The defendant argued that this discovery resulted in the
landowners’ subsequent acquiescence to the record boundary,
defeating the claim of boundary by acquiescence. Id. ¶ 31. The
supreme court disagreed, explaining that the plaintiffs’
predecessor-in-interest’s “occupancy and possession for a long
period of time ‘ripened into legal title’ long before he discovered
the actual location of the record boundary” some twenty years
before litigation commenced. Id. ¶¶ 9, 30.
¶11 In these two cases, the encroaching landowner’s possession
“ripened into legal title” and extinguished the record owner’s legal
title at the time such possession satisfied the requirements of the
boundary by acquiescence doctrine—years before the boundary
was judicially determined. We therefore conclude that once
adjacent landowners have acquiesced to a visible boundary other
than the recorded property line for the requisite twenty years, the
encroaching landowner’s possession “ripen[s] into legal title” by
operation of law, extinguishing the other landowner’s legal title to
any part of the disputed land and leaving the previous owner with
only “bare record title.” See Brown, 622 P.2d at 1177. Thus, a judicial
determination of a boundary by acquiescence and quieting of title
merely recognizes what has already occurred by operation of law:
the transfer of legal title of the disputed land to the occupying
landowner.
¶12 We recognize that neither Brown nor Veibell directly
addressed the question of when legal title transfers under the
boundary by acquiescence doctrine. However, in each case, a
recognition that title had transferred by operation of law at the time
the elements of the doctrine were met—and before a judicial ruling
or order was entered—was essential to the supreme court’s
disposition of the questions presented. See Veibell, 2004 UT 60, ¶ 31
(concluding that legal title had vested in plaintiffs’ predecessor-in-
interest long before his discovery of the record boundary and

Q-2, LLC v. Hughes
20120607-CA 7 2014 UT App 19
therefore “the operation of the doctrine of boundary by
acquiescence is not vitiated by a subsequent discovery of the true
record boundary by one of the parties”); Brown, 622 P.2d at 1178
(explaining that “[t]he fact that the plaintiff lot buyers had notice
of the actual lot boundaries . . . would have been fatal to their
action if they had not received a conveyance of the legal title to the
disputed strip of land” from the encroaching landowner). These
cases therefore persuasively demonstrate the principle that legal
title transfers at the time the elements of boundary by acquiescence
are met.
¶13 Applying this principle to the facts before us, we conclude
that legal title to the disputed property passed to Q-2’s
predecessor-in-interest no later than 1971. The trial court found that
the fence existed and was treated as the boundary line by the
parties’ predecessors-in-interest, who occupied and utilized the
land up to the fence line from at least 1927 to 1971. The court found
that the fence “met all of the elements for boundary by
acquiescence between 1927 and 1971.” Legal title to the disputed
property therefore vested in Q-2’s predecessor-in-interest once
twenty years had passed under these conditions.
II. The Trial Court Erred in Granting Summary Judgment to Q-2
on the Hugheses’ Adverse Possession Claim.
¶14 Having determined that legal title to the disputed property
passed to Q-2’s predecessor-in-interest no later than 1971, we next
consider whether the trial court properly granted summary
judgment to Q-2 on the Hugheses’ adverse possession claim.
“Summary judgment is appropriate only where there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law.” Basic Research, LLC v. Admiral Ins. Co.,
2013 UT 6, ¶ 5, 297 P.3d 578. In reviewing a grant of summary
judgment, we view the facts and all reasonable inferences in the
light most favorable to the nonmoving party. Magana v. Dave Roth
Constr., 2009 UT 45, ¶ 5, 215 P.3d 143.

Q-2, LLC v. Hughes
20120607-CA 8 2014 UT App 19
¶15 To establish a claim of adverse possession under color of
title, the Hugheses must establish that they held and possessed the
property adversely to the legal title for at least seven years prior to
commencement of litigation. See Utah Code Ann. § 78B-2-208
(LexisNexis 2008). While occupation of real property is generally
presumed to be “under and in subordination to the legal title,” id.
property will be “considered to have been adversely held if a
person in possession of the property . . . possesses a written
document purporting to convey title,” id. § 78B-2-210(1). “In order
to establish title by adverse possession, the party claiming adverse
possession has the burden of proving that possession was open,
notorious, and hostile and that taxes were paid for the entire
statutory period.” Marchant v. Park City, 788 P.2d 520, 523–24 (Utah
1990).
¶16 Viewing the undisputed facts in a light most favorable to the
Hugheses, we conclude that the trial court erred in granting
summary judgment to Q-2 on the Hugheses’ adverse possession
claim. Because legal title passed to Q-2’s predecessor-in-interest by
1971, the Hugheses’ predecessor-in-interest could convey only
“bare record title” to the disputed property to the Hugheses by the
1998 warranty deed, and legal title rested with Q-2 or its
predecessor-in-interest at that time. Thus, the Hugheses’ possession
of the entire property described by their warranty deed was
adverse to the legal title of the disputed property. See Utah Code
Ann. § 78B-2-210. The Hugheses possessed the property in this
manner from 1998 until the commencement of litigation in 2008. In
opposition to Q-2’s motion for summary judgment, the Hugheses
introduced affidavit testimony and documents supporting their
claim that for the entire period of their possession they had
occupied the property in an open and notorious manner and paid
the assessed property taxes.
¶17 On each element of their claim of adverse position, the
Hugheses introduced sufficient evidence to survive summary
judgment. The trial court therefore erred by granting summary

Q-2, LLC v. Hughes
4. Q-2 also contends that the Hugheses’ adverse possession claim
must fail because the Hugheses believed and asserted that they
were the legal owner of the property at all times prior to the trial
court’s ruling. We reject Q-2’s argument because we can find no
legal support for the proposition that a possessor who mistakenly
believes that he or she is the legal owner of disputed property
cannot possess that property adversely to the interests of the true
owner. Moreover, such a rule would prove unworkable in cases
such as this one where the possessor asserts adverse possession
under color of a written document purporting to convey title to the
disputed property. See Utah Code Ann. § 78B-2-210 (LexisNexis
2008). Were Q-2 correct, adverse possession claims founded upon
such a written document could succeed only where the possessor
knew or believed that the document purporting to convey title was
fraudulent or otherwise in error.
20120607-CA 9 2014 UT App 19
judgment to Q-2 and dismissing the Hugheses’ claim. Accordingly,
we reverse the trial court’s grant of summary judgment to Q-2.4
CONCLUSION
¶18 Legal title to the disputed property passed to Q-2’s
predecessor-in-interest no later than 1971. The Hugheses’
occupation of the disputed property from 1998 to 2008 was
therefore adverse to the legal title, as required by statute. The
Hugheses introduced sufficient evidence in support of their
adverse possession claim to survive summary judgment. We
reverse the trial court’s grant of summary judgment to Q-2 and
remand for further proceedings consistent with this opinion.
ORME, Judge (concurring specially):
¶19 I concur in the court’s opinion, but with some trepidation.
As I observed at oral argument, the idea that legal title to real

Q-2, LLC v. Hughes
5. This case involves the interplay between adverse possession and
boundary by acquiescence, but the basic problem—viewing titles
as having shifted not when a judicial decree says they have but
when the requirements for those doctrines were satisfied at some
earlier moment in time—is presented in any case involving either
doctrine and, indeed, other doctrines, such as easement by
necessity, easement by implication, and prescriptive easement.
20120607-CA 10 2014 UT App 19
property would be deemed to have shifted pursuant to doctrines
like boundary by acquiescence or adverse possession not at a point5
in time when a judicial decree so determines, but at some earlier
point in time when the elements of such doctrines are factually
satisfied, is concerning. This will mean that some real estate titles
will be other than as shown by recorded documents, other than as
memorialized in judicial decrees, and other than as an inspection
of the property would suggest. The resulting uncertainty seems to
guarantee a level of risk that is anathema to prospective real estate
buyers as well as title insurers.
¶20 That said, I cannot argue that the import of the decisions
cited in the lead opinion is other than as concluded there. So I do
hope the parties will ask the Utah Supreme Court to review this
decision. And I hope that the Court will grant the certiorari
petition. The result we reach, troubling though it is, seems all but
compelled by the Supreme Court opinions on which we rely. I
cannot help but believe that those precedents should be
reconsidered by the one court in a position to do something about
them.