I do not have any strong conviction of dissent from theresult reached here. However, because of my apprehensions as to how the main opinion as written may be *Page 153 applied to other fact situations, I make the following comments:
The fundamental proposition of the main opinion seems to be that if one deeds away his property, part of which is overlapped by an ancient fence, he conveys the entire property, according to the deed description, including the overlapped strip. With this I do not disagree. But my difficulty is with the assertion that "this is not a boundary by acquiescence case," which is what the plaintiffs asserted and relied on; and the statement that "the plaintiffs having conveyed away the tract of land now owned by defendant without regard to their claimed boundary by acquiescence, they cannot now claim they are entitled to relief from their own conveyance." It seems to be that this is susceptible of being understood as meaning that after any such grantor has so conveyed his property, he may always thereafter be precluded from claiming boundary by acquiescence, because he could not challenge his own deed. Whereas, it is my view that after such a deed is made, if the fence continues to exist in such manner that the parties should be deemed to regard it as a boundary, and this persists for a sufficient length of time, the doctrine of boundary by acquiescence applies.1 I can see no reason why it should not apply to a grantor, as well as to a grantee, or any other property holder, however that status came about.
In this case there could be only eleven years between the plaintiffs' granting of the deed to Simmons and Wiberg (defendant's predecessors) and the defendant's challenge of the boundary as not in conformity with the conveyance, which she asserted with reasonable dispatch and diligence after acquiring the property. Wherefore, as indicated above, I have no strong disagreement with the trial court's ruling as a matter of law that under the undisputed facts, there could be no finding of a boundary by acquiescence as between these parties.2 Although I think it would have been better and more satisfactory procedure for the trial court to take the evidence and find the facts, instead of so ruling on the motion for summary judgment.
CALLISTER, C.J., concurs with CROCKETT, J.