This case involves a boundary dispute between the appellants and respondents who are adjoining owners of land abutting the west side of U. S. Highway 91 in Provo, Utah. Appellants’ lot lies to the north of respondents’ lot and is bounded on the north by Ninth South Street. Respondents’ lot is bounded on the north by appellants’ lot and on the south by a lot owned by June Peterson. All three lots originally comprised a three-acre tract which was acquired 'by A. H. Levitre and Lydia Levitre, his wife, in 1922. On May 6, 1924, the Levitres conveyed the lot now owned by the appellants to> one Clavel and Perskowski, who conveyed to appellants . on June 9, 1925. On May 8, 1924, Mr. Levitre conveyed to his wife all his interest in the remainder of the property comprising the lots now owned by respondents,. and .Jude Peterson. Respondents acquired title to their lot in 1945 by mesne conveyances from Mrs. Levitre.
In the spring of 1928, a wire fence was constructed between appellants’ lot and the lot now owned by the respondents. Mrs. Levitre was then the owner of the latter tract. The fence was built to keep horses owned by one Chris Peterson, who> lived on the lot now owned by June Peterson, out of appellants’ garden. Chris Peterson supplied the poles , and wire and William Young, one of the appellants, built the fence along a line which had several years prior thereto been pointed out to him by Mr. Levitre as being the boundary. The respondents’ north line as described in their deed actually coincides with the description of the appellants’ south line contained in their deed. Not until 1950 when the respondents caused a survey to be made of their property, was it discovered that the fence encroached from six to eleven feet on the respondents’ lot. The trial court quieted title to the strip of land in dispute in the respondents.
In the deed by which the Levitres acquired title to the three-acre tract in 1922, the property was described as being bounded on the east and on the north by the “street line.” However, in the deed from the Levitres to Clavel and Perskowski, appellants’ predecessors in title, and in the deed from Clavel and Perskowski to the. appellants, no mention is made in the descriptions of the “street lines.” The lot is described simply by courses and distances. *239without any reference to “street lines.” The effect of the descriptions is to establish the northern boundary of the lot on a line which is six feet out in Ninth South Street which bounds the property on the north. Appellants contend that the deeds should not be so construed because they claim the Levitres owned no property in the street and hence they should not be held to have intended to convey property out in the street which they did not own.
There is no merit in this contention. Sec. 27-1-7, Utah Code Annotated 1953, provides in part: “* * * A transfer of land bounded by a highway passes the title of the person whose estate is transferred to the middle of the highway.” In the case of Brown v. Oregon Short Line R. Co., 36 Utah 257, 102 P. 740, 24 L.R.A.,N.S., 86 we pointed out that that statute was declaratory of the common law. At the common law a private conveyance of land bounded by or abutting on a highway, the fee to which belongs to the abutting owners, is presumed to convey the fee to the highway to the center line thereof. See the annotations at 2 A.L.R. 6, 47 A.L.R. 1276, and 123 A.L.R. 542. The presumption is rebutted only by clear evidence that the grantor did not intend to convey his interest lying in the highway. In the instant case the calls in the deed by which the Levitres acquired title are to the “street line.” Whether the “street line” was intended by the parties to that deed to be the center line of the highway or the side line of the highway we do not know. Under Sec. 27-1-7 it will be presumed to be the center line. Thus the Levitres owned to the center of Ninth South Street and they did not convey property which they did not own when they conveyed a six-foot strip of property out in that street to the appellants.
Appellants seek to prevent removal of the fence between their lot and the respondents’ lot, even though it does not conform to the line described in their deeds, on the ground that it was established as a boundary by an express parol agreement between the appellants and the respondents predecessor in title. It was pointed out by this court in Brown v. Milliner, Utah, 232 P.2d 202, that it has long been recognized in this state that when the location of the true boundary line between two adjoining tracts of land is unknown, uncertain or in dispute, the owners thereof may, by parol agreement, establish the boundary line and thereby irrevocably bind themselves and their grantees. Such express parol agreements were upheld in Rydalch v. Anderson, 37 Utah 99, 107 P. 25, and in Ekberg v. Bates, Utah, 239 P.2d 205.
We further pointed out in Brown v. Milliner, supra, that in the absence of evidence that the owners of adjoining property or' their predecessors in interest ever made an express parol agreement as to the location of the boundary between them if they have occupied their respective premises up to an open boundary line visibly *240marked by monuments, fences or buildings for a long period of time and mutually recognized it as the dividing line between them, the law will imply an agreement fixing the boundary as located, if it can do so consistently with the facts appearing, and will not permit the parties nor their grantees to depart from such line. This rule is sometimes referred to as the doctrine of boundary by acquiescence. The rule was recognized and applied in Holmes v. Judge, 31 Utah 269, 87 P. 1009, and in a long line of subsequent cases — all cited in Brown v. Milliner, supra.
In the instant case, there is no evidence that the fence was built pursuant to an express parol agreement between adjoining owners. On the contrary; the evidence establishes that the fence was built in 1928 by Mr. Young, one of the appellants, when the lot now owned by the respondents was owned by Mrs. Levitre. Young testified that the Levitres did not live on the property at that time and that he did not consult them before building the fence, but that he, built it on a line which had been marked by Mr. .Levitre several years prior thereto as 'being the boundary. There is no evidence of M.r. Levitre’s authority to act for His wife in establishing the boundary. Clearly, the evidence fails to establish that an express parol agreement between adjoining land owners was ever made.
■ Having, concluded then that the evidence . «fails to .’establish that the fence in question was «'built pursuant' to an .express parol agreement between adjoining owners fixing the boundary, the question arises whether we can imply that such an agreement was made as we did in Holmes v. Judge, supra, and in the cases following the Holmes case which are cited in Brown v. Milliner, supra, at page 207 of 232 P.2d. We think not. In all of those cases such an agreement could be implied without doing violence to the evidence appearing. In view of the state of the evidence this court could and did imply that a boundary agreement had been made between the adjoining owners at sometime during the past. As explained by this court in Glenn v. Whitney, 116 Utah 267, 209 P.2d 257, the court in such cases indulges in the fiction that«at some time in the past the adjoining owners were in dispute or uncertain as to the location of the true boundary and that they settled their differences by. agreeing upon the fence or other monument as the dividing line between their properties.
In the instant case, there is no room, in view of the evidence appearing, to imply that the fence was built pursuant to agreement between the adjoining owners. Mr. Young testified that he built the fence himself in 1928 without consulting the adjoining owner, Mrs. Levitre, and that she did not live on her lot at that time. Thus it would do violence to the .evidence to1 imply an agreement here. In this respect this case is similar to Home Owners’ Loan Corp. v. Dudley, 105 Utah 208, 141 P.2d 160; Peterson v. Johnson, 84 Utah 89, 34 *241P.2d 697; Glenn v. Whitney, supra; and Brown v. Milliner, supra. In the last cited case, the defendant testified that he built the fence which he relied upon as the boundary without ever discussing the matter with the adjoining owner who at that time was the plaintiff’s father. We held that in view of that testimony, there was no room to imply that the fence had been built pursuant to an agreement between the adjoining' owners fixing the boundary between them.
The judgment below is affirmed. Costs to the respondents.
McDonough, J., concurs.