Salazar v. Terry

Justice KOURLIS

dissenting:

I respectfully dissent from the majority’s conclusion that fifteen days of common ownership of the two tracts of land in question here served to erase a boundary long recognized as being marked by a fence over 100 years old.

This ease concerns the integrity of the boundary fence between plaintiffs’ and defendants’ lands. The fence has been in existence since the 1880’s.1 Following trial, the court in this case found that the fence had been recognized as the actual boundary line by all previous owners of the parcels from 1914 until 1989, when plaintiffs first asserted their claim that the fence was not on the government survey line. All prior conveyances of the tracts in question described the two properties by reference to the government subdivisions without mention of the fence. Plaintiffs brought this suit in order to quiet title to their property in accordance with the surveyed government subdivision lines instead of the fence line.

In 1977, for a period of fifteen days, the two tracts of land came under the common ownership of Mills Ranches, Inc. (Mills Ranches). The majority claims that due to this short period of common ownership, the long acquiesced boundary at the fence line *1093was extinguished and the boundary reverted back to the government subdivision lines. The effect of the majority’s analysis is that the deed by which Mills Ranches obtained the Terry tract was based upon the fence line boundary, whereas the deed by which Mills Ranches conveyed the Terry tract to Jerry Mills on November 18,1977, extinguished the fence line as the boundary, even though both of the deeds used the same general language. I must respectfully disagree with this analysis.

When parties acquiesce to the location of a particular boundary line, this boundary ripens into a reality after a prescribed period of time. Hartley v. Ruybal, 160 Colo. 80, 86, 414 P.2d 114, 116 (1966). Such acquiescence is binding upon the parties and their successors in interest. Forristall v. Ansley, 170 Colo. 391, 396, 462 P.2d 116, 119 (1969).

The statutorily prescribed time period for acquiescence in Colorado is twenty years. “[I]f it is found that the boundaries and corners alleged to have been recognized and acquiesced in for twenty years have been so recognized and acquiesced in, such boundaries and corners shall be permanently established.” § 38-44-109, 16A C.R.S. (1982).2 Thus, this fence has legally been recognized as the permanent boundary between the two properties since the early part of this century.

An acquiesced boundary often will not lie on the surveyor’s true, location. When this occurs, the legal effect of the doctrine of acquiescence is to rewrite the deed or document of title by operation of law to reflect the acquiesced change so that the agreed upon boundary becomes the true dividing line. Duncan v. Peterson, 3 Cal.App.3d 607, 83 Cal.Rptr. 744, 746 (1970); Edgeller v. Johnston, 74 Idaho 359, 262 P.2d 1006, 1010 (1953). An acquiesced line “becomes, in law, the true line called for by the respective descriptions, regardless of the accuracy of the agreed location.” Young v. Blakeman, 153 Cal. 477, 95 P. 888, 890 (1908). “Thus, if the distance call in the deed is ’500 feet,’ it may henceforth be treated as if it read ’517 feet’ or ’483 feet,’ and every future deed of the land which copies or incorporates the original description will also be so read.” Roger A. Cunningham et al., The Law of Property § 11.8, at 765 (1984). See also Olin L. Browder, The Practical Location of Boundaries, 56 Mich.L.Rev. 487, 530 (1958).

The policy underlying this construction of the language in the deed is the doctrine of repose, or “the notion that the law ought not to tinker with the well-settled and long-held understanding of the people involved, even if it does not comport with their documents.” Cunningham et al., supra, at 766. See also 12 Am.Jur.2d Boundaries § 85 (1964). As the California Supreme Court has reasoned, measurements made at different times, by different persons, and with different instruments will usually vary, and that:

If the position of the line always remained to be ascertained by measurement alone, the result would be that it would not be a fixed boundary, but would be subject to change with every new measurement. Such uncertainty and instability in the title to land would be intolerable.

Young, 95 P. at 889. Hence, boundary lines which have been recognized for the statutory period are regarded in law as being the true and permanent boundaries described by the language in the deed.

Once the original language in the deed has been effectively changed in accordance with the acquiesced boundaries, a conveyance by that original description should be presumed to have been intended to refer to the boundaries as fixed by such acquiescence unless there is specific language to the contrary. Young, 95 P. at 891.

Mills Ranches acquired the Salazar tract by a deed in 1971.3 The deed described the *1094property by government survey quarter sections. All parties agree and the trial court found that the description really referred to the fence boundary that had been legally changed by the long acquiescence. Mills Ranches acquired the Terry parcel on November 3,1977, by a deed which made reference, in pertinent part, to “The Southeast quarter of Southwest quarter of Section 21, and the East half of Northwest quarter ... of Section 28.” Fifteen days later on November 18, 1977, Mills Ranches conveyed the Terry parcel to Jerry E. Mills using the following description: “SE1/4SW1/4, Section 21 and NE1/4NW1/4, Section 28.” For some seventy years, the government survey descriptive language in a deed to that property had been deemed to convey the property up to the fence line.

The majority holds that because the Terry tract and the Salazar tract were held under common ownership for those fifteen days, acquiescence to the fence as the boundary between the two properties was extinguished. Maj. op. at 7-8. I believe that the doctrines of acquiescence and repose call for a different outcome. As the Michigan Supreme Court stated:

[A] boundary line long treated and acquiesced in as the true line ought not to be disturbed on new surveys.... [T]he peace of the community requires that all attempts to disturb lines with which the parties concerned have long been satisfied should not be encouraged.

Gregory v. Thorrez, 277 Mich. 197, 269 N.W. 142, 143 (1936) (citations omitted); see also Finley v. Yuba County Water Dist., 99 Cal. App.3d 691, 160 Cal.Rptr. 423, 428 (1979); Sachs v. Board of Trustees of Town of Cebolleta Land Grant, 89 N.M. 712, 557 P.2d 209, 215 (1976); Reed v. Farr, 35 N.Y. 113, 116-17 (1866). The integrity of a boundary line agreed upon for seven decades is not to be lightly undermined. If Mills Ranches had intended to move the boundary line from that which had been established, it should have changed the descriptive language used in the deed so as to clearly overturn the effect of acquiescence.

The public policy to be served in affording certainty to boundary locations between adjoining landowners is an important one. In my view, the boundary between the Salazar and Terry tracts was established as the fence line decades before either Mills Ranches or Terry entered the chain of title. Nothing that Mills Ranches did during its brief period of common ownership changed the location of the dividing boundary from the fence line.

Accordingly, I would reverse the court of appeals with directions to reinstate the trial court judgment in favor of the defendants.

I am authorized to say that Chief Justice VOLLACK and Justice SCOTT join in this dissent.

. In 1914, the Huerfano County court decreed that the fence represented the actual boundary line along two parcels immediately to the south of the properties at issue here. The terms of the 1914 Judgment only refer specifically to the description of the plaintiff Naranjo’s property, which was located to the south of the Salazar tract in this litigation. However, the defendant in the 1914 case alleged in his answer that he owned the tract now owned by Terry as well as the tract immediately to the east of Naranjo. Thus, the 1914 judgment may have dealt with precisely the same fence at issue in this case, even though the decree would only seem to address that portion of the fence to the south of the Salazar and Terry properties.

. The twenty year acquiescence period was first established by statute in Colorado in 1907. See Ch. 126, § 9, 1907 Colo.Sess. Laws 288.

. The deed by which Mills Ranches acquired that portion of the property is not clear. Mills Ranches acquired the NW1/4 NW1/4 of Section 28 in the 1971 deed, but appears not to have acquired all of the SW1/4 SW1/4 of Section 21. The deed makes reference to a conveyance of all of Section 21 lying south of the south right of way of the County Road, and presumably included the SW1/4 SW1/4 of Section 21. There is a deletion for "that portion of the El/2 and SW1/4 of said section 21 conveyed to Huerfano County” as to which there is no further evidence in the record. This issue was not raised on appeal.