Dissenting:
I respectfully dissent. In 1982, when the defendants took possession of their tract of land, there existed a barbed wire fence running essentially parallel to and approximately 28 feet west of the boundary as described in the plaintiff's deed. (The description of plaintiff's tract overlapped that described in defendant's deed by more than 8 feet.) There was no evidence as to who built the fence, when it was built or the purpose for which it was built. This original fence remained intact until it was burned in 1954 except for several intervals prior thereto during which the wires were down. Defendant James Lea repaired the fence after each such interval, and he rebuilt the barbed wire fence after the fire in 1954, later replacing the barbed wire fence with a wooden fence, and finally erecting a chainlink fence in 1978. The majority opinion relies in part on the fact that plaintiff and his wife had access to both sides of the fence, but Mrs. Elias testified that it was necessary to remove the wooden slats to have access to the other side, and only small animals such as chickens could get through the fence without removal of the slats.
From 1932 until the time of trial, defendants occupied the property east of the fence and plaintiff and his predecessors occupied the property west of the fence. Plaintiff's predecessors in title did not claim the property east of the fence until 1954, when one of them, F. Grant Woodward, asserted ownership. Woodward threatened, but did not file suit to quiet title No further claims were asserted for another 19 years, until the plaintiff instituted the present suit to quiet title, and for all that time, the fence remained in the same position.
The doctrine of boundary by acquiescence was originally an extension of the boundary by agreement doctrine. The latter doctrine allows adjoining land owners to establish a boundary line by oral agreement where the true line is unknown, uncertain, or in dispute. Where there is no proof of an actual agreement, boundary by acquiescence applies, and ignorance, uncertainty or dispute as to the true line and an agreement as to the boundary will be presumed 1 if the following elements are established: (1) occupation up to a visible line marked by monuments, fences or buildings and (2) acquiescence in the line as the boundary (8) for a long period of years and (4) by adjoining landowners.2
It is the second element, acquiescence in the line as the boundary, which the District Court found was not established.
The term "acquiescence" was defined by this Court in Lane v. Walker, 29 Utah 2d 119, 505 P.2d 1199, 1200 (1973):
_... the test to establish the boundary by "acquiescence" necessarily need not be based on mutual "intent." "Intent" is not synonymous with "acquiescence" in these cases. "Acquiescence" is more nearly synonymous with "indolence," or "consent by silence,"-or a knowledge that a fence or other monuments appears to be a boundary,-but that no one did anything about it for 48 years....
The test articulated above contains three elements: (1) knowledge (2) of an apparent boundary (8) and a failure to act in the face of such knowledge.
The first requirement in the Lane test for acquiescence is knowledge of the apparent boundary. The evidence shows that the fence was visible for the entire period of 1982 to 1954 at which time it burned. There is some conflict in the evidence as to the date it was replaced by defendants, but it is clear it was rebuilt by 1958, and that since 1954, the posts of the old fence remained. Defendants' *417use of the property up to the fence line was also open to observation by the plaintiff's predecessors. It is clear, therefore, that plaintiff's predecessors knew of the fence and defendants' use of the property.
The second requirement in the Lane test is that there be an apparent boundary. Here, the use of the land by defendants up to the fence, coupled with the lack of use beyond the fence by plaintiff's predecessors, is an indication that the fence was a dividing line. Also, here, the fence unlike the irrigation ditch found not to be a boundary in Fuoco v. Williams, supra, note 2, was visible, permanent, and had a definite location and further had no purpose other than as a boundary.3
The final element in the acquiescence test is a failure to act. In 1954 Woodward asserted a claim against the property west of the fence line, but did nothing to clear title to the property. Thereafter, the disputed area was conveyed by plaintiff's predecessors only by quit claim deeds, though warranty deeds were used to convey the rest of plaintiff's property. As of 1954 the fence had been in existence for over 22 years and at that time the boundary was already established. There followed an additional 19 years during which all of the plaintiffs and their predecessors acquiesced in the fence as a boundary, and none of them took action to assert their claims. The fence has now been in the same place for 41 years, and this Court should confirm title to the disputed area in the defendants who have used it for all of that period of time.
MAUGHAN, Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice WILKINS. HALL, Justice, having disqualified himself does not participate herein; HENRIOD, Retired Justice, sat.. Olsen v. Park Daughters Inv. Co., 29 Utah 2d 421, 511 P.2d 145 (1973).
. Fuoco v. Williams, 15 Utah 2d 156, 389 P.2d 143 (1964). See also the second appeal of that case, 18 Utah 2d 282, 421 P.2d 944 (1966).
. Even if the fence were built by the common grantor for purposes other than boundary, this would not prevent the fence from operating as a boundary once the property is conveyed to separate owners. Baum v. Defa, Utah, 525 P.2d 725 (1974).