(dissenting):
I dissent. The majority opinion fails to give proper deference to the finding of fact by the trial court that the parties acquiesced in the fence as a boundary line for more than twenty years stemming from before 1957 to 1979. The trial court did not regard the removal of a portion of the fence in 1973 as breaking the acquiescence since it found that about that time, Mrs. Parsons had a conversation with Mr. Anderson about replacing the old fence with the new one, that the defendants Anderson reasonably expected that a replacement fence would be built and that plaintiffs did not take any other action which would have exhibited their repudiation of the fence line as the boundary. The majority has overlooked this finding of fact in its pronouncement that the acquiescence was interrupted in 1973.
The majority also errs in requiring proof that the fence was acquiesced in as a boundary because there was uncertainty or dispute among the adjoining owners as to the location of the true'line. I pointed out in my dissenting opinions in Halladay v. Cluff, 685 P.2d 500 (1984), and Stratford v. Morgan, 689 P.2d 360 (1984), that evidence of uncertainty or dispute is not required in a boundary by acquiescence case. To impose such a requirement in an acquiescence case is to turn it into a case of boundary by express parol agreement. The two means of establishing boundaries should not be confused. In the earliest boundary by acquiescence case decided by this Court, Holmes v. Judge, 31 Utah 269, 87 P. 1009 (1906), we observed that there was no evidence that there had ever been any dispute or question over the location of the boundary. We held that lack of evidence to be of no consequence. Although some of our subsequent cases have mentioned dispute or uncertainty, it was either dicta or the author was referring to boundary by express parol agreement where it is a requirement. The law could be no other way since acquiescence in a marked boundary rarely results from dispute or uncertainty as to the location of the true boundary. In the typical ease, the parties have never discussed the boundary until shortly before the lawsuit arises. But they have both been content to silently abide by the marked boundary for 20 years or more, and the law will not thereafter allow them to depart from it. In requiring proof of uncertainty or dispute, the majority works the demise of boundary by acquiescence as a means of settling boundary disputes over what are often insignificant narrow strips of land which rarely add any value to the land of the party who seeks to upset the recognized boundary.
The majority opinion decries that “no evidence was presented at trial showing who built the fence, why it was built or when it was built.” The lack of answers to those questions is the very stuff of which boundary by acquiescence cases are made. *541Evidence as to those matters is wholly immaterial. The important fact is that the fence was on the ground and both adjoining owners acquiesced in it as the boundary between their properties. In Holmes v. Judge, supra, the same void in the evidence existed. Said this Court: “The record does not show who constructed the fence nor who requested it to be built, except by mere inference.” That lack of evidence was held to be of no consequence in the application of the rule of boundary by acquiescence.
ZIMMERMAN, J., does not participate herein.