Beck v. Neville

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STEVEN P. BECK, ET AL.,
Plaintiffs/Appellees,

v.

RICHARD N EVILLE, ET AL.,
Defendants/Appellants.

No. CV-22-0134-PR
Filed January 9, 2024

Appeal from the Superior Court in Maricopa County
The Honorable Pamela S. Gates, Judge
No. CV2019-013786
AFFIRMED

Memorandum Decision of the Court of Appeals, Division One
No. 1 CA-CV 21-0197
Filed Apr. 26, 2022
VACATED

COUNSEL:

Stephen W. Tully (argued), Tully Bailey, LLP, Phoenix, Attorneys for
Steven P. Beck, Lesli C. Beck, and Trustees of the UDT-SLGGB Revocable
Living Trust

Jared Sutton, Stacey F. Gottlieb (argued), Papetti Samuels Weiss McKirgan
LLP, Scottsdale, Attorneys for Richard Neville and September Neville
 BECK, ET AL. V. NEVILLE, ET AL.
Opinion of the Court

JUSTICE MONTGOMERY authored the Opinion of the Court, in which
JUSTICES BOLICK, LOPEZ, BEENE, KING, and PELANDER (Ret.) joined.*
VICE CHIEF JUSTICE TIMMER concurred in part and in the result in a
separate opinion.

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 This case addresses two different causes of action that can
dispossess a record title holder of property. Specifically, we consider
whether Arizona recognizes a cause of action under the doctrine of
“boundary by acquiescence” and, if so, what elements are required to prove
it, as well as the burden and standard of proof. We also consider what is
required to establish the “open and notorious” element of an adverse
possession claim.

¶2 We hold today that Arizona law recognizes a cause of action
for boundary by acquiescence, and that the claimant bears the burden of
proving by clear and convincing evidence the elements as set forth in Mealey
v. Arndt, 206 Ariz. 218, 221 ¶ 13 (App. 2003), with the additional element
that the actual boundary is uncertain or disputed. We also hold that
occasionally parking a car partially on an adjoining landowner’s property
is insufficient to establish the open and notorious element of an adverse
possession claim.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 1998 and 2000, the Nevilles and Becks, respectively,
purchased adjoining properties. The Becks’ home is north of the Nevilles’
at a slightly higher elevation. Around 2004, the Becks improved the
landscaping of their front yard, which included colored rocks for ground
cover. To ensure that the rocks would not flow south down the slope of
their yard, they had landscapers install decorative stamped concrete paver
bricks.

¶4 However, instead of adhering to the Becks’ actual recorded
property line, which runs diagonally from the corner of the common wall

*
Chief Justice Robert M. Brutinel is recused from this matter. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.)
of the Arizona Supreme Court was designated to sit in this matter.

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Opinion of the Court

between the two properties to a piece of rebar with a pink streamer, the
landscapers mistakenly set the concrete pavers on a line running directly
east from the corner of the wall to the edge of the street. 1 This mistake
made it appear that the pavers constitute the northern edge of an
approximately ten foot, single-vehicle wide, gravel driveway running from
the edge of the street straight back to a double gate on the north side of the
Nevilles’ home. This purported driveway includes the 135 square foot,
triangle-shaped area in dispute.

¶5 The Becks assert that after they learned of this mistake, they
informed the Nevilles of what had happened. However, the landscaper
responsible for the error apparently went out of business and the pavers
were never adjusted. The Nevilles allege that in 2014 the Becks made
additional changes to the landscaping in which the pavers were removed
and then placed back in the same location. The Becks contend that they
did not make any landscaping changes in 2014 other than performing
routine maintenance that did not involve removing the pavers and that
yard maintenance workers have used the disputed area to gain access to the
Becks’ property.

¶6 In 2019, the Becks remodeled their backyard, necessitating the
extension of drainage pipes from the end of the common wall down to the
edge of the street. The extension would have required the Becks to dig up
the disputed property, after which they planned to place the pavers along
the recorded property line. The Becks informed the Nevilles of the
anticipated construction and the Nevilles responded that they, not the
Becks, owned the disputed property. The Becks claim this is the first time
the Nevilles asserted such ownership. The Nevilles then sent a
cease-and-desist letter to the Becks, stating that the Nevilles were the
owners of the property by adverse possession and boundary by
acquiescence.

¶7 The Becks, asserting ownership and entitlement to possession
of the disputed property, filed this action to quiet title pursuant to A.R.S.
§ 12-1101. The Nevilles filed a counterclaim to quiet title on their behalf

1 We have included a photo from the record depicting the area as an
appendix to this Opinion. The record also includes a survey report dated
October 19, 2019, that identifies the rebar as the southwest corner of the
Becks’ lot.

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Opinion of the Court

based on adverse possession and boundary by acquiescence. On
cross-motions for summary judgment, the trial court concluded that the
Becks met their burden to quiet title and that the Nevilles had failed to
provide sufficient evidence to establish their claims. It therefore granted
summary judgment in favor of the Becks.

¶8 The Nevilles appealed. In a split decision, the court of
appeals reversed the summary judgment and remanded the case to the trial
court for further proceedings. Beck v. Neville, No. 1 CA-CV 21-0197, 2022
WL 1218629, at *4 ¶ 22 (Ariz. App. Apr. 26, 2022) (mem. decision). The
majority held that summary judgment was incorrectly entered because the
parties’ declarations presented disputed facts concerning both the adverse
possession and boundary by acquiescence claims. Id. at *2 ¶ 12, *3 ¶ 16.
The dissent agreed with the trial court that the Nevilles had failed to present
sufficient evidence to support those claims. Id. at *6 ¶ 30 (Morse, J.,
dissenting).

¶9 We granted review because the circumstances under which a
claimant may quiet title to a portion of a record owner’s real property is an
important issue of statewide concern. We have jurisdiction under article
6, section 5(3) of the Arizona Constitution.

DISCUSSION

¶10 We “review a grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party against whom
summary judgment was entered.” Dabush v. Seacret Direct LLC, 250 Ariz.
264, 267 ¶ 10 (2021). Where cross-motions for summary judgment are
filed, “summary judgment in favor of either party is appropriate only ‘if the
facts produced in support of the [other party's] claim or defense have so
little probative value, given the quantum of evidence required, that
reasonable people could not agree with the conclusion advanced by the
proponent of the claim or defense.’” Andrews v. Blake, 205 Ariz. 236, 240
¶ 13 (2003) (alteration in original) (quoting Orme Sch. v. Reeves, 166 Ariz.
301, 309 (1990)).

A. Boundary by Acquiescence

¶11 We begin by addressing whether Arizona recognizes the
doctrine of boundary by acquiescence and, if so, what is required to prove

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Opinion of the Court

such a claim.

1. Recognition

¶12 The parties disagree on whether Arizona has recognized a
cause of action based on the doctrine of boundary by acquiescence. The
doctrine permits adjacent landowners to “mutually recognize a boundary
and act as if it were the true property line.” Thomas Phillip Boggess V,
Cause of Action to Establish Boundary Between Adjoining Property Owners, 42
Causes of Action 2d 489, § 2 (2023) [hereinafter “Boggess”]. The purpose
of the doctrine is to “avoid[] litigation and promote[] stability in
landownership.” Bahr v. Imus, 250 P.3d 56, 65 ¶ 35 (Utah 2011) (quoting
Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990)).

¶13 Although the Becks acknowledge that this Court and the
court of appeals have discussed such a cause of action, they argue that this
Court has not affirmatively recognized it and no Arizona court has set forth
its elements. The Nevilles argue that there is no need to “affirmatively
recognize” boundary by acquiescence because it is a part of the common
law, which Arizona courts have adopted to the extent it is not inconsistent
with constitutional or statutory law. Additionally, the Nevilles assert that
Arizona has explicitly recognized boundary by acquiescence in Hein v. Nutt,
66 Ariz. 107 (1947), or, at the very least, in Mealey. 2

¶14 Hein involved an attempt to determine the corners of various
parcels of land to establish the boundaries of adjoining pieces of property.
Hein, 66 Ariz. at 108–09. As part of its analysis, this Court noted,

The period of acquiescence must continue for the period
prescribed by statutes relating thereto or required by statutes
of limitations relating to the acquisition of title by adverse
possession. Arizona has no statute on acquiescence and our
applicable statute of limitations on adverse
possession requires five years. Therefore, even assuming that

2 The cases of Trevillian v. Rais, 40 Ariz. 42, 45–46 (1932), and Cook v.
Stevens, 51 Ariz. 467, 473 (1938), mentioned acquiescence in the location of
a boundary even prior to Hein, though each respective court decided the
issue in the context of adverse possession.

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the required elements of acquiescence were present, the
necessary time element is lacking.

Id. at 114 (cleaned up). Thus, the boundary by acquiescence claim in Hein
failed because it lacked the required amount of time, not because the Court
declined to recognize the cause of action.

¶15 Boundary by acquiescence was next at issue in Wacker v. Price,
70 Ariz. 99 (1950). Therein, this Court observed: “Every lot in block 31
south of lots 6 and 8 here involved have definite boundaries established by
acquiescence of the parties for a much longer period than is required to
establish title by adverse possession.” Id. at 104–05. Accordingly, this
Court treated “the boundaries fixed by the property owners themselves” as
the best evidence of the boundaries. Id. at 106–07. Therefore, neither
“the city surveyor nor any other surveyor ha[d] any authority to establish
new boundaries which must of necessity affect the property rights of all
property owners concerned where they cannot establish title by adverse
possession.” Id. at 107. Thus, this Court clearly acknowledged the
doctrine of boundary by acquiescence and treated it as distinct from
adverse possession.

¶16 More recently, the court of appeals cited Hein in Mealey, and
explicitly stated that Arizona “has acknowledged the doctrine of boundary
by acquiescence.” 206 Ariz. at 221 ¶ 13. We concur. A boundary by
acquiescence cause of action has been part of our jurisprudence for decades,
albeit sparingly referenced and little discussed. Accordingly, we consider
its application in this case.

2. Elements

¶17 The court of appeals in Mealey correctly noted that no Arizona
court had “clearly defined the elements” of a boundary by acquiescence
claim. Id. The court therefore looked to other jurisdictions, which
generally require proof of “(1) occupation or possession of property up to a
clearly defined line, (2) mutual acquiescence by the adjoining landowners
in that line as the dividing line between their properties, and (3) continued
acquiescence for a long period of time.” Id. For Arizona, the required
time period is “ten years, the same as that for adverse possession.” Id.; see
also A.R.S. § 12-526(A). As to whether proof is required that the true
boundary is disputed or uncertain, the Mealey court did not reach a

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conclusion in the case before it but did observe in a footnote that
jurisdictions differ as to whether this is a required element. Mealey, 206
Ariz. at 221 ¶ 13 n.2. 3

¶18 Although the parties do not disagree with the specific list of
elements set forth in Mealey, they differ over whether we should require
proof of an uncertain or disputed boundary as an additional element. The
Becks argue that claimants should also be required to prove there was
“uncertainty or dispute” as to the location of the true boundary. The
Nevilles ask us to precisely follow Mealey and argue that the court of
appeals’ omission of any requirement of an uncertain or disputed boundary
means that this may, at best, be an affirmative defense to a boundary by
acquiescence claim with the party asserting it having the burden of proof. 4

¶19 Jurisdictions cited by Mealey that discuss the reasons for not
requiring dispute or uncertainty either place primary emphasis on the
length of time involved or disregard it as a policy choice. In Moeller v.
Graves, 367 S.W.2d. 426, 427 (Ark. 1963), the Arkansas Supreme Court
remarked that “[t]he answer to [whether a doubt or dispute is required] is
that . . . title nevertheless vested by adverse possession after the agreement
had been in force for the full statutory period of seven years.” The New
Mexico Supreme Court concluded similarly in Woodburn Bros. v. Grimes, 275
P.2d 850, 852 (N.M. 1954), observing that “these elements are not essential
in every case. A boundary line may be established by acquiescence where

3 The court of appeals specifically cited to cases from Arkansas, Florida,
New Mexico, South Carolina, Texas, and Utah. Rabjohn v. Ashcraft, 480
S.W.2d 138, 141 (Ark. 1972) (uncertainty not required); Hutchins v.
Strickland, 674 So.2d 870, 873 (Fla. Dist. Ct. App. 1996) (uncertainty
required); Sproles v. McDonald, 372 P.2d 122, 125–26 (N.M. 1962)
(uncertainty not required); Knox v. Bogan, 472 S.E.2d 43, 49 (S.C. 1996)
(uncertainty not required); Doria v. Suchowolski, 531 S.W.2d 360, 364 (Tex.
Civ. App. 1975) (uncertainty required); Ainsworth, 785 P.2d at 424 (objective
uncertainty not required).
4 This argument seems to follow the reference in Mealey to a
commentator’s observation “that, where a plaintiff need not prove
uncertainty, uncertainty is presumed, but the defendant can always defeat
the claim of boundary by acquiescence by affirmatively proving that the
location of the true boundary was known.” 206 Ariz. at 221 ¶ 13 n.2
(citation omitted).

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there has been long recognition by abutting owners.” And in Ainsworth,
the Utah Supreme Court eliminated the requirement to prove uncertainty
because “in contrast to the purpose of the objective uncertainty
requirement, it now appears that its use may increase litigation over
boundaries rather than decrease it.” 785 P.2d at 423.

¶20 We disagree with these courts’ conclusions and find that an
element of uncertainty or a dispute as to the true boundary line is necessary
for three reasons. First, requiring uncertainty underpins the landowners’
need to acquiesce to a boundary to reliably manage ownership of real
property. “Without this doubt, there would be no need to acquiesce in a
boundary.” Boggess, § 12 (noting further that “[i]t is generally
understood that underlying the doctrine of establishing a boundary by
acquiescence is that there was a doubt or dispute as to the true location of
the true boundary line”). It is thus axiomatic that when the true boundary
is known it is not possible for adjoining landowners to establish a new
boundary by acquiescence. Second, there is no need to facilitate the
recognition of an agreed-upon boundary where true boundaries can be
readily ascertained, as the record in this case demonstrates. See Bryant v.
Blevins, 884 P.2d 1034, 1041 (Cal. 1994) (“[W]hen existing legal records
provide a basis for fixing the boundary, there is no justification for inferring,
without additional evidence, that the prior owners were uncertain as to the
location of the true boundary or that they agreed to fix their common
boundary at the location of a fence.”); Armitage v. Decker, 267 Cal. Rptr. 399,
407–09 (Cal. Ct. App. 1990) (rejecting a claim that a fence line served as a
property boundary line where neighbors had treated it as such for over
eighty years because, in part, the actual line was consistently described in
recorded deeds and established by surveys). Third, the requirement for
uncertainty or dispute ensures that a claim of boundary by acquiescence
does not result in the unwitting transfer of property. Letting a neighbor
use property for a limited purpose or foregoing the full use of one’s
property may be nothing more than mere courtesy or done out of practical
necessity. See, e.g., Fuoss v. Dahlke Fam. Ltd. P'ship, 984 N.W.2d 693, 703
(S.D. 2023) (noting that “the mere fact that a landowner allows his neighbor
to occupy or use part of his land does not automatically fix the boundary
between them or give the neighbor a right to use or take the property in
perpetuity” (quoting City of Deadwood v. Summit, Inc., 607 N.W.2d 22, 30
(S.D. 2000))).

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¶21 We therefore hold, consistent with the elements initially set
forth in Mealey, that the party asserting a boundary by acquiescence claim
must prove (1) occupation or possession of property up to a clearly defined
line; (2) mutual acquiescence by the adjoining landowners in that line as the
dividing line between their properties; (3) continued acquiescence for ten
years; and, for the reasons stated above, (4) uncertainty or dispute as to the
true boundary. Additionally, the party asserting a boundary by
acquiescence claim bears the burden of proof for each element. Mealey,
206 Ariz. at 223 ¶ 23. We next turn to the standard of proof required to
establish a boundary by acquiescence claim.

3. Standard of proof

¶22 Although the Mealey court concluded “that insufficient
evidence was presented of a clear, certain, visible boundary to which the
parties acquiesced,” it did not state the standard of proof for that element
or any other. Id. at 224 ¶ 25. The court did, though, observe in the same
footnote addressing the element of dispute or uncertainty regarding the
true boundary that “some jurisdictions require . . . proof [of that element]
by clear and convincing evidence.” Id. at 221 ¶ 13 n.2. 5 No Arizona
court, however, has set forth the quantum of proof required to establish all
the elements.

¶23 “The function of a standard of proof . . . is to ‘instruct the
factfinder concerning the degree of confidence our society thinks he should

5 The cases cited by the Mealey court applied a clear and convincing
standard of proof for each element. Calthorpe v. Abrahamson, 441 A.2d 284,
289 (Me. 1982) (“The proof of acquiescence must be clear and convincing
since recognition of such a boundary has the effect of transferring
ownership of the disputed property without requiring compliance with the
Statute of Conveyances.”); Manz v. Bohara, 367 N.W.2d 743, 748 (N.D. 1985)
(concluding that “one claiming property to the exclusion of the true owner
through the doctrine of acquiescence” must prove it by clear and
convincing evidence just as a claim of adverse possession must be proved);
and City of Deadwood, 607 N.W.2d at 27 (“The burden of proving a boundary
by the doctrine of acquiescence is identical to the strident standard required
for proving adverse possession. One claiming property to the exclusion of
the true owner through the doctrine of acquiescence bears the burden of
proving the action by clear and convincing evidence.”).

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have in the correctness of factual conclusions for a particular type of
adjudication.’” Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re
Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). Accordingly,
even though the parties did not address the applicable standard, we do so
now as part of setting forth the elements of the cause of action. Santosky v.
Kramer, 455 U.S. 745, 755–56 (1982) (stating that “the degree of proof
required in a particular type of proceeding ‘is the kind of question which
has traditionally been left to the judiciary to resolve’” (quoting Woodby v.
INS, 385 U.S. 276, 284 (1966))). “The standard serves to allocate the risk of
error between the litigants and to indicate the relative importance attached
to the ultimate decision.” Addington, 441 U.S. at 423. Given that a
successful boundary by acquiescence claim transfers record ownership of
disputed property, we must necessarily consider the importance of the
individual ownership of real property. 6

¶24 Recognition of the importance of the ownership of property
predates the founding of this country. The Virginia Declaration of Rights
(“Virginia Declaration”), enacted on June 12, 1776, with which our Arizona
Constitution shares key provisions, 7 pronounced:

6 Although courts have applied a clear and convincing standard of proof
for other interests concerning the ownership of property, such as adverse
possession, Miller v. McAlister, 151 Ariz. 435, 437, (App. 1986), and
prescriptive easements, Sabino Town & Country Ests. Ass'n v. Carr, 186 Ariz.
146, 149 (App. 1996), this Court has never set forth why such a standard
applies.
7 Compare Ariz. Const. art. 2, § 1 (“A frequent recurrence to fundamental
principles is essential to the security of individual rights and the perpetuity
of free government.”) (emphasis added), with Virginia Declaration of
Rights, § 15 (“That no free government, or the blessings of liberty, can be
preserved to any people, but by a firm adherence to justice, moderation,
temperance, frugality, and virtue; by frequent recurrence to fundamental
principles.”) (emphasis added); compare Ariz. Const. art. 2, § 2 (“All political
power is inherent in the people, and governments derive their just powers from the
consent of the governed, and are established to protect and maintain
individual rights.”) (emphasis added), with Virginia Declaration of Rights,
§ 2 (“That all power is vested in, and consequently derived from, the people; that
magistrates are their trustees and servants and at all times amenable to
them.”) (emphasis added).

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That all men are by nature equally free and independent and
have certain inherent rights, of which, when they enter into a
state of society, they cannot, by any compact, deprive or
divest their posterity; namely, the enjoyment of life and
liberty, with the means of acquiring and possessing property, and
pursuing and obtaining happiness and safety.

§ 1 (emphasis added). It is noteworthy that the language of § 1 is also
reflected in the preamble of the Declaration of Independence:

We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty
and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just
powers from the consent of the governed. 8

The Declaration of Independence para. 2 (U.S. 1776).

¶25 The nature of property rights was acknowledged as early as
1795 in our nation’s jurisprudence. In the case of VanHorne’s Lessee v.
Dorrance, 2 U.S. 304, 310 (1795), federal Supreme Court Justice William
Patterson observed that “the right of acquiring and possessing property,
and having it protected, is one of the natural, inherent, and unalienable
rights of man.” And in 1837 Justice Henry Baldwin in a concurring
opinion likewise stated that “[i]n this country, every person has a natural
and inherent right of taking and enjoying property, which right is
recognised [sic] and secured in the constitution of every state.” Proprietors
of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. 420, 650 (1837)
(Baldwin, J., concurring). See also Piqua Branch of State Bank of Ohio v.
Knoop, 57 U.S. 369, 397 (1853) (noting the constitutional guarantee of the
natural right to acquire and enjoy private property); Maxwell v. Griswold, 51

8 The similarity in language is unsurprising, though, as Thomas Jefferson
relied on the Virginia Declaration to draft the Declaration of Independence.
Thomas Jefferson and the Declaration of Independence, Thomas Jefferson
Found., https://www.monticello.org/thomas-jefferson/jefferson-s-three-
greatest-achievements/the-declaration/jefferson-and-the-declaration/
(last visited Jan. 1, 2024) (“Some of his language and many of his ideas drew
from well-known political works, such as George Mason’s Declaration of
Rights.”).

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U.S. 242, 252 (1850) (acknowledging the natural right of private property
ownership).

¶26 The acknowledgement of the nature and importance of
property rights in the Virginia Declaration, the Declaration of
Independence, and in early constitutional jurisprudence is significant
because Arizona’s Enabling Act, authorizing a convention to draft a state
constitution, required that “[t]he constitution shall be republican in form
and make no distinction in civil or political rights on account of race or
color, and shall not be repugnant to the Constitution of the United States and the
principles of the Declaration of Independence.” A.R.S., Enab. Act, Sec. 20
(emphasis added). Thus, consistent with the principles of the Declaration
of Independence and the federal and Arizona Constitutions, the ownership
of property is a natural right of significant interest which we have a duty to
protect. Bristor v. Cheatham, 75 Ariz. 227, 234 (1953) (“It is the court’s duty
to protect constitutional rights.”); see also Bailey v. Myers, 206 Ariz. 224, 227
¶ 11 (App. 2003) (“The framers of our Constitution understood that one of
the basic responsibilities of government is to protect private property
interests.”).

¶27 Turning to the specific standard of proof to apply, we note
that where the interest is monetary, a standard of the preponderance of the
evidence generally suffices. Addington, 441 U.S. at 423; but see Am. Pepper
Supply Co. v. Fed. Ins. Co., 208 Ariz. 307, 309 ¶ 11 (2004) (discussing clear and
convincing burden of proof for fraud claims); Linthicum v. Nationwide Life
Ins. Co., 150 Ariz. 326, 331-32 (1986) (applying heightened standard of proof
to punitive damages claims); O’Hair v. O’Hair, 109 Ariz. 236, 240 (1973)
(requiring clear and convincing proof to establish donative intent for a gift).
Where an individual’s liberty interest is at stake, by contrast, we require
proof beyond a reasonable doubt. Addington, 441 U.S. at 423–24. Given
the “particularly important individual interests” before us concerning the
ownership of private property, we hold that a clear and convincing
standard of proof is required for each of the elements of a boundary by
acquiescence claim. Id. at 424.

¶28 We next examine the facts of this case as they relate to each of
the elements under a clear and convincing standard of proof.

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4. Nevilles’ claim

a. Proof of dispute or uncertainty over the true boundary

¶29 Neither party argues that there is any dispute or uncertainty
regarding the true boundary. In fact, the boundary was clearly
demarcated in the public deeds that are part of the record and the Nevilles
acknowledged “that the disputed land lies within the formal boundary
lines of the Beck property.” At the outset, then, the failure to offer any
evidence of an uncertain or disputed boundary means the Nevilles’
boundary by acquiescence claim fails as a matter of law. Nevertheless,
given the dearth of caselaw regarding this claim, we proceed to consider
the remaining elements. See Leach v. Reagan, 245 Ariz. 430, 441 ¶ 53 (2018)
(considering otherwise moot issue that was likely to recur to provide
guidance to future litigants and courts).

b. Occupation or possession up to a clearly defined line

¶30 The Nevilles argue that they have parked vehicles in the area
described as their driveway, which includes the disputed area, since 2004.
The Nevilles, though, do not provide any evidence of the frequency or
regularity with which they parked a vehicle on the driveway. Regardless,
the Nevilles assert that whether they occupied the disputed land is a fact
question for the jury. However, if the facts produced “have so little
probative value, given the quantum of evidence required, that reasonable
people could not agree with the conclusion advanced by the proponent of
the claim or defense,” there is no genuine dispute of a material fact to
submit to a jury. Reeves, 166 Ariz. at 309.

¶31 To establish a claim of boundary by acquiescence, the
claimant “must occupy his or her property . . . in such a manner as to place
the nonclaimant on notice that he or she claims the property so occupied.”
Anderson v. Fautin, 379 P.3d 1186, 1193–94 ¶ 26 (Utah 2016). Accepting the
Nevilles’ parking assertion as true only means that on those occasions when
they parked primarily on their own property, they also partially intruded
into a portion of the disputed property. This limited use is insufficient to
put the Becks on notice that the Nevilles were claiming the entirety of the
135 square feet as their property. See Huck v. Ken’s House LLC, 511 P.3d
1220, 1223 ¶ 8, 1225 ¶ 14 (Utah Ct. App. 2022) (finding insufficient
occupation where disputed land was used by tenants of an apartment

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building “to walk their pets” and building owner sometimes used it “to
access the side of the apartment building for maintenance-related
tasks . . . [and] ‘the main use’ . . . was for safety and maintenance and to
comply with the city’s ten-foot setback requirement”).

¶32 In contrast, cases finding the requisite occupation involve
activities traditionally and more broadly exercised by owners. See, e.g.,
Hartley v. Ruybal, 414 P.2d 114, 116 (Colo. 1966) (grazing of livestock on land
in question); Hansen v. Kurry Jensen Props. LLC, 493 P.3d 1131, 1141–42 ¶ 35
(Utah Ct. App. 2021) (upholding a claim of boundary by acquiescence
where record title holder “required the [adjacent landowner] to remove a
tree that was, in fact, on the [record title owner’s] deeded property, and they
never objected to the [adjacent landowner] erecting the carport, chain link
fence, or garage within the approximate ten-foot area between the deeded
line and the claimed boundary line”); Huntington v. Riggs, 862 N.E.2d 1263,
1270 (Ind. Ct. App. 2007) (“[Claimants] used and occupied the [disputed
land]. They improved upon it by mowing the usable portion of the
wooded tract, as they did their own yard, and by building a driveway on
its northwest corner.”).

¶33 The Nevilles also claim that they refused to permit the Becks
to park on the driveway “[o]n several known occasions since at least 2004.”
However, the record illustrates that it is not possible for the Becks to park
there without also parking on the Nevilles’ property. See Appendix.
Thus, precluding the Becks from parking on the driveway is just as much,
if not more, an exercise of the Nevilles’ right to exclude others from their
own property. Champie v. Castle Hot Springs Co., 27 Ariz. 463, 468 (1925)
(“One of the most cherished principles of our common law, to use the old
phrase, is that a man’s house is his castle, from which he may exclude any
and all persons at will . . . .”) (internal quotation marks omitted). Thus,
the Nevilles’ evidence concerning parking on the gravel driveway up to the
pavers is insufficient to establish the required occupation or use of the
disputed property and therefore does not create a genuine issue of a
material fact regarding this element. 9 See Ariz. R. Civ. P. 56(a).

9 Our resolution of this issue renders it unnecessary to determine whether
the pavers also constituted a clearly marked boundary.

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Opinion of the Court

c. Mutual acquiescence by the adjoining landowners

¶34 The Nevilles assert that the Becks have always recognized the
pavers as the boundary line. The Becks deny any such recognition.

¶35 “A boundary is established by acquiescence when there is
mutual recognition of a given line by the adjoining owners . . . .” Roy v.
Woodstock Cmty. Tr., Inc., 94 A.3d 530, 549 ¶ 60 (Vt. 2014) (citation omitted)
(internal quotation marks omitted); see also Oppliger v. Vineyard, 803 N.W.2d
786, 804 (Neb. Ct. App. 2011) (“In order to claim a boundary line by
acquiescence, both parties must have knowledge of the existence of a line
as the boundary . . . .”).

¶36 One example of what mutual acquiescence might look like is
discussed in Harris v. Robertson, 813 S.W.2d 252 (Ark. 1991), cited by Mealey.
206 Ariz. at 223 ¶ 20. In Harris, the adjoining landowners “walked over
the land, agreed on the boundaries, and fixed all corners and turning points
with iron pins.” 813 S.W.2d at 252; see also O’Hearne v. McClammer, 42 A.3d
834, 840 (N.H. 2012) (finding dispositive the fact that adjacent property
owners had “walked the boundary line together on multiple occasions
throughout the years and identified the boundary markers”). In contrast,
the record here lacks any evidence that the parties engaged in any kind of
joint effort to establish the boundary between their properties or otherwise
agreed that the pavers marked the boundary. Instead, the record reflects
that the parties never discussed the pavers as a boundary prior to this
dispute and disagree over whether they constitute a boundary at all.
Reynolds v. GFM, LLC, 429 S.W.3d 336, 340 (Ark. Ct. App. 2013) (observing
that “the fact that a landowner puts a fence inside his boundary line does
not mean that he is acquiescing in the fence as the boundary, thereby losing
title to the strip on the other side”). Additionally, the Becks’ inability to
use the disputed land for parking does not, in and of itself, establish the
Nevilles’ claim that the Becks acquiesced in a boundary marked by the
pavers. Carter v. Hanrath, 925 P.2d 960, 962 (Utah 1996) (concluding that
record title owner’s inability to use part of their property where it was
landlocked “cannot realistically be characterized as acquiescence or consent
by silence”).

¶37 Citing Segal v. Carstensen, the Nevilles assert that acquiescence
may also be established tacitly or as a result of “consent by silence.” No.
2 CA-CV 2019-0208, 2020 WL 5629766, at *4 ¶ 18 (Ariz. App. Sept. 21, 2020)

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Opinion of the Court

(mem. decision) (quoting Sachs v. Bd. of Trs., 557 P.2d 209, 216–17 (N.M.
1976). Two points. First, because Segal is a memorandum decision by the
court of appeals, it is not precedential authority, although it may be cited
for persuasive value. See Ariz. R. Sup. Ct. 111(c)(1)(C). Second,
boundary by acquiescence requires mutual acquiescence and the record
does not contain evidence permitting the fact finder to infer that the Becks
acquiesced to the pavers as the new property line. See Acquiescence, Black’s
Law Dictionary (11th ed. 2019) (defining “acquiescence” as one’s “tacit or
passive acceptance; implied consent to an act”). This is so despite the fact
that it was the Becks who installed the pavers. As stated by the North
Dakota Supreme Court in Sauter v. Miller, “[a] property owner does not
acquiesce in a fence as a boundary merely because he builds the fence upon
his own property and not upon the property line. The intent must have
been to establish the fence as the boundary, not a mere barrier between the
properties.” 907 N.W.2d 370, 375 ¶ 21 (N.D. 2018) (internal citation
omitted) (internal quotation marks omitted); accord Barnett v. Gomance, 377
S.W.3d 317, 322 (Ark. Ct. App. 2010).

¶38 The Nevilles also cite Trevillian, 40 Ariz. at 45–46, in support
of the proposition that acquiescence does not require actual knowledge of
the true boundary. However, Trevillian discusses adverse possession and
the rule as stated therein is inapposite to a boundary by acquiescence claim.
Id. at 45 (“The law applicable to such a situation we believe to be as follows:
Where a person, acting under a mistake as to the true boundary line
between his land and that of another, takes possession of land of another
believing it to be his own, up to a mistaken line, claims title to it and so
holds, the holding is adverse and, if continued for the requisite period, will
give title by adverse possession.” (emphasis added) (citation omitted)
(internal quotation marks omitted)). Ultimately, the record does not
contain sufficient evidence to create a genuine issue of a material fact
regarding the Becks’ acquiescence in a boundary marked by the pavers.

d. Continued acquiescence for a sufficient period of time

¶39 The period of time required to establish a boundary by
acquiescence is ten years, the same as that for a claim of adverse possession.
Mealey, 206 Ariz. at 221 ¶ 13 (defining “a long period of time” as “ten years,
the same as that for adverse possession”); § 12-526(A). Here, the Nevilles
purchased the property in 1998. The Becks purchased their property in
2000. The pavers were originally placed in 2004, and the Nevilles maintain

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Opinion of the Court

that they have used the driveway consistent with the line of pavers since
then. Thus, the Nevilles have established the requisite amount of time.

¶40 Aside from facts establishing the requisite time frame, the
evidence produced by the Nevilles in support of the remaining elements is
insufficient to prove a boundary by acquiescence claim by clear and
convincing evidence. Accordingly, even if some facts are in dispute,
“reasonable people could not agree with the conclusion advanced” by the
Nevilles that they acquired title to the Becks’ 135 square feet through
boundary by acquiescence. Andrews, 205 Ariz. at 240 ¶ 13. We therefore
hold that the Nevilles’ claim fails as a matter of law.

B. Adverse Possession

¶41 The Nevilles also claim ownership of the disputed land
through adverse possession based on their use and maintenance of the
disputed property—in addition to their own property—as a gravel
driveway. Alternatively, the Nevilles assert that the record on this claim
at least raises an issue of material fact that must be addressed by a jury at
trial, rather than decided as a matter of law. The Becks argue that the trial
court properly found that the Nevilles’ evidence fails to establish open and
notorious possession of the disputed property by clear and convincing
evidence.

¶42 Adverse possession is the “actual and visible appropriation of
the land, commenced and continued under a claim of right inconsistent
with and hostile to the claim of another.” A.R.S. § 12-521(A)(1). Thus, a
claim of ownership of disputed land must be open, notorious, continuous,
exclusive, and hostile. Spillsbury v. Sch. Dist. No. 19 of Maricopa Cnty., 37
Ariz. 43, 47 (1930); see also Tenney v. Luplow, 103 Ariz. 363, 367 (1968).
Possession must also be continuous for the statutory period of ten years.
§ 12-526(A). The party claiming title by adverse possession has the burden
to show that the elements are met. Whittemore v. Amator, 148 Ariz. 173, 175
(1986). Finally, because “[c]laims of adverse possession are disfavored,”
Stat-o-matic Ret. Fund v. Assistance League of Yuma, 189 Ariz. 221, 222 (App.
1997), they must be proved by clear and convincing evidence, Miller v.
McAlister, 151 Ariz. 435, 437 (App. 1986) (discussing requirement that
adverse possession be proved by “clear and positive evidence, which is

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Opinion of the Court

analogous to the rigorous ‘clear and convincing’ standard of proof”).

¶43 With respect to the open and notorious element, the Nevilles
assert that they have used the 135 square feet in question—in addition to
their own property—as a gravel driveway and that they have on every
known occasion ordered the Becks and any of their guests who have
attempted to park in the gravel area to remove their vehicles. Thus, the
Nevilles conclude that their use of the disputed property as part of a gravel
driveway satisfies the “open and notorious” element and also cite Inch v.
McPherson, 176 Ariz. 132 (App. 1992), in support of their argument. In
contrast, the Becks claim that the Nevilles’ occasional parking of a portion
of a car on a gravel section of land does not “fly the flag” to put them on
notice of the Nevilles’ claim of ownership of the disputed property.

¶44 “The open and visible character of possession by an adverse
claimant must consist of such acts of ownership as are sufficient to ‘hoist
his flag’ and keep it flying over the land.” Conwell v. Allen, 21 Ariz. App.
383, 384 (1974). Put another way, “there must be physical facts which
openly evince and give notice of an intent to hold the land in hostile
dominion.” Id.

¶45 We initially note that the Nevilles’ reliance on Inch v.
McPherson is misplaced. Inch is distinguishable from this case in two
significant respects. First, Inch involved a claim for a prescriptive
easement rather than for a claim of title to the land itself. See 176 Ariz.
at 134–35. Although this Court has stated that “[t]he elements necessary
to establish [adverse possession and a prescriptive easement] are
substantially the same, and the rules of law relating to title by adverse
possession are, in general, applicable to easements by prescription,”
establishing a prescriptive easement does not establish adverse possession
of the property in question. See Lewis v. Farrah, 65 Ariz. 320, 323 (1947).
To obtain a prescriptive easement, “[i]t is only the use of the land which
must be shown to be open, notorious and adverse.” Etz v. Mamerow, 72
Ariz. 228, 231 (1951) (emphasis added). Put another way, “an action to
establish an easement does not involve possession or occupation of the
land,” whereas adverse possession to acquire title to the land does. Id.
at 231. Thus, the owner does not lose ownership of land in a prescriptive
easement case. Id. Instead, the owner is precluded from using the land
in a manner inconsistent with the easement. Id. Accordingly, the focus
in Inch was on the facts that evinced the claimants’ use of the property

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Opinion of the Court

rather than on the types of acts which would demonstrate an adverse claim
of ownership.

¶46 Second, the claimants in Inch did much more to demonstrate
the open and notorious use of the land in dispute than the Nevilles have.
In Inch, the court of appeals noted that the claimants “laid down gravel for
a driveway between their house and [their neighbor’s] hedge,” which was
the disputed land, “and habitually parked their cars on their side of the
hedge before it was taken down.” 176 Ariz. at 134. The court therefore
found that “the Inchs used the land by laying gravel and parking on it,” and
that such use satisfied the open and notorious requirement for adverse
possession of a prescriptive easement. Id. at 135 (emphasis added).

¶47 Here, the Nevilles’ argument rests primarily on the occasional
parking of a portion of their vehicle on the disputed land. But “[t]he mere
use of another’s property is insufficient to create ownership or prescriptive
use, without some additional act or circumstance indicating that the use is
not merely permissive but hostile to the owner’s rights.” Herzog v. Boykin,
148 Ariz. 131, 133 (App. 1985) (internal citation omitted). Nor do
“[o]ccasional or casual acts . . . ordinarily give sufficient notice to the true
owner that the property is being held adversely.” Gospel Echos Chapel, Inc.
v. Wadsworth, 19 Ariz. App. 382, 385 (1973). No facts are asserted
indicating that parking on the small, narrow strip was anything except
casual or an accidental intrusion from the main area of the gravel drive used
by the Nevilles, and possession cannot be casual, accidental, or permissive.
See Higginbotham v. Kuehn, 102 Ariz. 37, 39 (1967). Thus, occasionally
parking in the gravel area does not establish an actual appropriation of the
disputed land. This is very different from the types of cases where
continuous use of a driveway was sufficient for adverse possession
purposes. See, e.g., Trokey v. R.D.P. Dev. Grp., L.L.C., 401 S.W.3d 516, 523
(Mo. Ct. App. 2013) (describing daily use for ingress/egress over large area
where claimants “‘used and maintained’ the disputed property for 45 years
by mowing and trimming grass, storing items of personal property, and
maintaining a seawall”).

¶48 Additionally, the Nevilles cannot rely on the placement of the
pavers as somehow putting the Becks on notice of the Nevilles’ claim
because it was the Becks who were responsible for the installation. As for
the assertion that the Nevilles maintained the driveway, there are no facts
presented to explain just how the Nevilles “maintained” the area. In sum,

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there is insufficient evidence to establish a genuine dispute of a material
fact regarding the notice required for an adverse possession claim.

¶49 Finally, the Nevilles’ claim of ownership is not hostile or
exclusive. Assuming as true that the Nevilles prevented the Becks or their
guests from parking on the disputed area, such action would still be
insufficient to support their claim. As noted above, most of the gravel area
belongs to the Nevilles and any parking on the driveway would necessarily
occur on a portion of their property. And nothing in the record shows the
Nevilles prevented the specific use of the 135 square feet in question,
especially as it concerns the use of the disputed area by the Becks’ yard
maintenance personnel. Furthermore, we once again note that it was the
Becks who installed the concrete pavers, not the Nevilles. Accordingly,
the pavers were not installed to keep the Becks out by enclosing the
disputed area. See State v. Lewis, 236 Ariz. 336, 346 ¶ 42 (App. 2014)
(defining “enclose” as “[t]o surround on all sides; close in” and “[t]o fence
in so as to prevent common use” (citing The American Heritage Dictionary
587 (5th ed. 2011)) (brackets in original)). Therefore, the Nevilles failed to
present sufficient evidence of material facts to establish by clear and
convincing evidence that they acquired title by adverse possession. We
hold that their claim fails as a matter of law.

DISPOSITION

¶50 For all the foregoing reasons, we vacate the court of appeals’
memorandum decision and affirm the trial court’s judgment. We award
the Becks’ taxable costs as the prevailing parties and grant their request for
reasonable attorney fees incurred on appeal pursuant to A.R.S. §§ 12-341
and 12-1103, subject to compliance with Arizona Rule of Civil Appellate
Procedure 21.

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Opinion of the Court

APPENDIX

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TIMMER, V.C.J., Concurring

TIMMER, V.C.J., concurring in part and in the result,

¶51 I agree entirely with the majority’s disposition in this case,
including that a plaintiff must prove a boundary-by-acquiescence claim by
clear and convincing evidence. But I do not agree with including
paragraphs 24 through 26, which cite the Virginia Declaration of Rights, the
Declaration of Independence, and federal constitutional jurisprudence to
explain the significance of property rights in Arizona—an uncontested
issue.

¶52 I am concerned that including these paragraphs will impact
the interpretation and application of state constitutional rights without
input from any party or interested amici. The majority ties these
authorities to Arizona’s Enabling Act and emphasizes that our state
constitution “shall not be repugnant to the Constitution of the United States
and the principles of the Declaration of Independence.” See supra ¶ 26.
Under the Supremacy Clause, of course, the federal constitution preempts
any conflicting state constitutional provisions. See U.S. Const. art. 6, cl. 2.
But the majority arguably suggests that through the Enabling Act, the
Declaration of Independence and its proclamation of “natural right[s]”
similarly constrain Arizona’s constitution. See supra ¶ 26. I am unwilling
to commit to that position absent argument from interested parties and a
comprehensive study of the issue, neither of which occurred in this case.

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