dissenting.
The majority decision completely ignores and destroys the long established law of boundary by fencing and agreement as articulated in Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006 (1953) wherein the rule is enunciated as follows:
An agreement, fixing a boundary line, need not be shown by direct evidence but may be inferred from acts and conduct and especially from long acquiescence. Kesler v. Ellis, 47 Idaho 740, 278 P. 366; O’Malley v. Jones, 46 Idaho 137, 266 P. 797. See also Campbell v. Weisbrod, 73 Idaho 82, 245 P.2d 1052 and the cases cited therein. Such an agreement may be presumed to arise between adjoining landowners where such right has been definitely defined by erection of a fence or other monument on the line followed by such adjoining landowners treating it as fixing the boundary for such length of time that neither ought to be allowed to deny the correctness of its location. Woll v. Costello, 59 Idaho 569; 85 P.2d 679; O’Malley v. Jones, supra; Bay-house v. Urquides, 17 Idaho 286, 105 P. 1066.
A boundary line established by agreement, between tracts of conterminous owners, followed by acquiescence and possession for the full statutory period of time required to acquire title by prescription, operates to establish, determine and fix the true line or division separating, and the location of, the respective estates of such conterminous owners. Mulder v. Stands, 71 Idaho 22, 225 P.2d 463; Strahom v. Ellis, 66 Idaho 572, 165 P.2d 294.
74 Idaho 359, at 365.
The true nature of this controversy can best be understood by a diagram, not drawn to scale, which illustrates the situation:
The fence was constructed in 1929 and has been continuously maintained since that date. Over the intervening years, the various owners of Lot 4 have cultivated the land to the fence and have placed shrubbery against the fence line.
The fence attaches to the rear of the shed; there is no door on the Lot 3 (Berg) end of the shed; and the shed is bisected by the platted lot line which would divide the parcels into equal 55 foot lots.
As I understand Idaho law, when people purchase lots with boundary line fences on them and view the lots prior to making their purchases, that what they see is what they purchase, the legal description on a recorded plat notwithstanding.
Esther Fairman is entitled to prevail on either one of two theories, or is at least entitled to have the issues tried rather than disposed of by summary judgment. The first theory is the doctrine of boundary by agreement. A boundary line fence was constructed, acknowledged and acquiesced in by the parties who owned the respective parcels for a forty-nine year period preceding the Bergs purchase of Lot 3 in 1978.
The majority opinion correctly notes the law of Idaho in the following statement:
While Idaho cases do recognize the doctrine of boundary by agreement, an orally agreed upon boundary cannot constitute the actual boundary between two pieces of property unless the true boundary line is “unknown to the parties and is uncertain or in dispute.” Hyde v. Lawson, 94 Idaho 886, 889, 499 P.2d 1242, 1245 (1972).
*446and then proceeds to ignore that law by the statement at page 6:
In the instant case, albeit it is asserted that the fence constituted a boundary by agreement, there were no facts presented to the trial court that directly or by inference indicated that the true boundary line between the two lots was in dispute, unknown or uncertain. Therefore, the issuance of summary judgment contrary to defendant’s claim of agreed boundary was proper. The only inferences that might arise from the facts are contrary to defendant’s assertions, since all of the various conveyances of the properties were based on descriptions according to the official plat of the Ketch-urn townsite, with no references therein to any fence or metes and bounds.
Unless the parties have had the boundary line surveyed and surveyor’s monuments are visible on the premises, the boundary line is unknown and uncertain, and in dispute. The majority cites no authority for the proposition that the doctrine of boundary by agreement vanishes and is inoperative when there happens to be a lot and block description recorded with a plat.
The second basis upon which Esther Fair-man might prevail is that of open, notorious, and hostile possession for a period of more than five years. The court erroneously ruled that there was not a continuous five-year period (after the two lots had separate owners) because it failed to recognize the doctrine of “tacking” as against successive owners of the Berg lot (Lot 3). The Court set 1973 as the first date when adverse possession would be possible, that being the time when the parcels were first separately owned. The Court then established a second time when adverse possession could be possible as beginning in 1976.
A Mr. Hjort owned the Berg parcel in 1977 and he entered on the disputed 15 foot tract in 1977 to fix the shed at which time he was specifically advised by Esther Fair-man that the shed was on her property and that the fence was the boundary line between Lots 3 and 4. Mr. Hjort was therefore informed that the possession was open, notorious and hostile but did nothing. The Court ruled that there was no five-year period because the complaint was filed on August 4, 1981. That would be a proper conclusion only if the Court were correct in not tacking on the adverse possession period starting in 1973 when a Mr. Duggan obtained title to Lot 3. Mr. Duggan was also subject to the open, notorious and hostile use, possession and cultivation of the 15 foot strip by the owners of Lot 4.
If the majority does not reverse its position on rehearing, the bench and bar should look upon this decision as merely an unexplained “aberration” and provide this Court with an opportunity to attempt to explain itself and reconcile its past decisions in a subsequent case.
Certainly there were issues of fact to be resolved and disposition by summary judgment was totally inappropriate.
BISTLINE, J., concurs.