dissenting
[¶ 18] Because I believe the twenty-year requirement for establishing acquiescence need not be the twenty years immediately before suit is brought, I respectfully dissent.
[¶ 19] Citing cases from other jurisdictions for support, James argues the boundary was established before the City took title to the property in 1979 by more than twenty years of acquiescence by the parties and their predecessors. At ¶ 13, the majority distinguishes the cases James *710cites, stating, “None of the cases relied on by James involved acquiescent possessions by others, interrupted by a nonacquiescent possession of another.” This statement skirts the issue that I deem dispositive: If James can show the boundary was established through acquiescence, it is irrelevant whether the City acquiesced during its two-month ownership. The City’s intervening ownership could not have destroyed the boundary, once it was established:
Where recognition and acquiescence have continued for the period of time prescribed by statutes concerning acquiescence or for the period required by statutes of limitations for acquisition of title by adverse possession, the presumption that the line is in fact the true ' line or that there has been an agreement fixing it as the true line becomes conclusive, and the line as acquiesced in is conclusively established as the boundary. As established it will control courses and distances called for in title deeds or grants, and the parties need not rely on paper title.
II C.J.S. Boundaries § 87 (1995) (footnotes omitted); see Crowden v. Grantland, 510 So.2d 238, 240 (Ala.1987) (stating that once title vests in a boundary through acquiescence by adjoining landowners, it can be divested only through conveyance or by losing the property to another adverse possessor); Lakeview Farm, Inc. v. Enman, 166 Vt. 158, 689 A.2d 1089, 1092 (1997) (stating that once a boundary is established by acquiescence, the line is conclusive upon successors in title); Arnold v. Robbins, 209 Wis.2d 428, 563 N.W.2d 178, 180 (App.1997) (stating that once acquiescence is established, the true owner is estopped from claiming title to the disputed land); Carter v. Hanrath, 885 P.2d 801, 804 (Utah Ct.App.1994), rev’d on other grounds, 925 P.2d 960 (Utah 1996) (stating that once the elements of boundary by acquiescence are established, there is a presumption of ownership).
[¶ 20] The majority insists James’s argument and the rule espoused in the cases James cites cannot be harmonized with N.D.C.C. § 28-01-04. I disagree. In my opinion, N.D.C.C. § 28-01-04, does not “tie the statutory period to the commencement of the action,” as the majority maintains at ¶ 13. Under N.D.C.C. § 28-01-04:
No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.
This statute provides the statute of limitations for adverse possession and acquiescence eases. Odegaard v. Craig, 171 N.W.2d 133, 137 (N.D.1969). We borrow the length of the statute of limitations and use it as the measuring stick for the length of time necessary to establish acquiescence. However, N.D.C.C. § 28-01-04, does not provide that a plaintiff must have been in possession for twenty years immediately before bringing an action, and we have never held that a plaintiff must have been in possession for twenty years immediately before bringing an action. Rather, we have determined only that a boundary line must be recognized by the parties for at least twenty years, without reference to when the twenty years must occur. See, e.g., Knutson v. Jensen, 440 N.W.2d 260, 262 (N.D.1989) (“To establish a new boundary line by acquiescence, it must be shown by clear and convincing evidence that the parties recognized the new boundary line as a boundary, and not a mere barrier, for at least twenty years ” (emphasis added)); Production Credit Ass’n v. Terra Vallee, Inc., 303 N.W.2d 79, 85 (N.D.1981) (concluding that “to establish a new *711boundary line, it must be acquiesced in by the parties as the boundary between their lands for at least twenty years ” (emphasis added)).
[¶ 21] The majority maintains that James’s argument that the boundary line was established before the City took possession in 1979 had to have been asserted at that time. The majority opines, at ¶ 14, “A rule allowing record title of property to be lost by a 20-year period of unadjudicat-ed acquiescence occurring in the distant past does not foster predictability and certainty of property rights.” However, there is nothing unpredictable about unad-judicated acquiescence because:
Where recognition and acquiescence have continued for the period of time prescribed by statutes concerning acquiescence or for the period required by statutes of limitations for acquisition of title by adverse possession, the presumption that the line is in fact the true line or that there has been an agreement fixing it as the true line becomes conclusive, and the line as acquiesced in is conclusively established as the boundary.
11 Boundaries § 87 (1995) (footnote omitted). Furthermore, if the Court were to conclude the twenty-year requirement for establishing acquiescence need not be the twenty years immediately before suit is brought, a plaintiff would still be bound by the twenty-year statute of limitations for bringing suit, provided in N.D.C.C. § 28-01-04, which provides a plaintiff must have been in possession within twenty years of bringing an action.
[¶ 22] The trial court found James’s brick fireplace, gravel drive, and old garage foundation encroached on the Griffins’ property. The trial court found the Griffins erected a fence in 1998 on the actual property line to prevent James from encroaching on the Griffins’ property. The parties do not dispute that James was in possession of the disputed property until the Griffins erected the fence in 1998. Thus, James was possessed of the property at issue within twenty years before beginning quiet title action. Accordingly, in my opinion, James’s action is not barred by the statute of limitations provided in N.D.C.C. § 28-01-04.
[¶ 23] I would reverse and remand for the trial court to determine whether twenty years of acquiescence had in fact occurred prior to the City’s brief ownership in 1979.
[¶ 24] MARY MUEHLEN MARING, J, concurs.