(dissenting):
I dissent. The trial court erred in dismissing the plaintiffs’ complaint at the end of the presentation of their evidence. The dismissal was bottomed on the failure of the plaintiffs to produce any evidence that the location of the boundary between the properties was ever uncertain or in dispute. The trial judge apparently thought that Madsen v. Clegg, Utah, 639 P.2d 726 (1981) required such evidence.
In defense of the trial judge’s action, admittedly there is dictum in Madsen v. Clegg that could be interpreted as imposing such a requirement. It was for that reason that this writer only concurred in the result in that case. I thought that there was no boundary by acquiescence because the fence which allegedly was acquiesced in as the boundary ran in a straight line, whereas the true line as described in the deeds of both of the adjoining owners had a right-angle turn in it. In view of that fact, I thought that the adjoining owners could not have reasonably believed that the fence was on the true boundary line. I regarded the reference in that case to uncertainty and dispute as surplusage, and directed to cases where a boundary is fixed by an express parol agreement as distinguished from a case of boundary by acquiescence.
*366However, in the next boundary by acquiescence case decided by this Court, Halladay v. Cluff, Utah, 685 P.2d 500 (1984) proof of uncertainty and dispute was elevated (albeit by dicta again) to a requirement. This writer in his dissenting opinion vigorously protested that suggestion and referred to Brown v. Milliner, 120 Utah 16, 232 P.2d 202 (1951) where this Court in a unanimous opinion stated that uncertainty and dispute are significant only in cases involving a boundary fixed on the ground by express parol agreement of the adjoining owners. In such cases, if the location of the true boundary line is known to them, they cannot fix it elsewhere by their agreement because such an agreement would contravene the statute of frauds. But we pointed out that uncertainty and dispute were not required to be shown by a party relying on a boundary which had been acquiesced in for a long period of time but which had not been fixed by express parol agreement, citing Holmes v. Judge, 31 Utah 269, 87 P. 1009 (1906), the first boundary by acquiescence case decided by this Court. Proof of uncertainty and dispute was again later rejected as a requirement in Motzkus v. Carroll, 7 Utah 2d 237, 322 P.2d 391 (1958). The majority misreads Ringwood v. Bradford, 2 Utah 2d 119, 269 P.2d 1053 (1954). It was decided on the basis that the fence was never intended or recognized as a boundary, but was erected only to protect young trees from sheep. That case in no wise supports the necessity of a showing of uncertainty and dispute. Madsen v. Clegg and Halladay v. Cluff must bear the responsibility for imposing this new requirement.
The holding of the majority opinion today that uncertainty and dispute must be proved as an element of boundary by acquiescence, coupled with our recent decision in Halladay v. Cluff, supra, effectively sounds the death knell of boundary by acquiescence in this state. These two cases have overruled sub silentio most, if not all, of the cases decided by this Court over the last eighty years in which the doctrine was applied. For a list of these cases, see the appendix to my dissenting opinion in Halla-day v. Cluff, supra. It is useless to longer pretend that application of the doctrine will ever again be upheld by this Court. As I pointed out in my dissenting opinion in Halladay v. Cluff, it is entirely foreign to the doctrine of boundary by acquiescence to impose the requirement of proof of uncertainty and dispute. This is because the very foundation of the doctrine is that the law implies that the adjoining landowners were once uncertain or in dispute and that the boundary was marked on the ground in settlement thereof. After the parties have for a long period of time acquiesced in that marked boundary, the law protects it. Holmes v. Judge, supra. This implication is drawn because due to the passage of time there is often little or no evidence available as to the circumstances surrounding the erection of the boundary marker. Without being able to rely on the implication, the doctrine of boundary by acquiescence cannot continue to exist as a workable and viable doctrine. In many of our cases, it is expressly stated that the boundary which was acquiesced in was built prior to the time that the present landowners acquired title. Those predecessors in title who supposedly built the marked boundary had moved from the area or were dead. There was no evidence as to how the marked boundary came into being. The marked boundary, however, is viewed as mute evidence of an agreement struck many years ago and acquiesced in since that time. Absent settlement of disputes under the doctrine of boundary by acquiescence, recourse must now be had to surveyors who today with their finer and more precise instruments, and due to destruction of old monuments, often disagree with their professional brothers who set and established boundaries on the properties of this state many years ago. All boundaries are now “fair game.”
ZIMMERMAN, J., does not participate herein.