B.G.T.S. v. Balls Brothers Farm

2024 UT App 37

THE UTAH COURT OF APPEALS

B.G.T.S. PROPERTIES, LLC,
Appellant,
v.
BALLS BROTHERS FARM, LLC,
Appellee.

Opinion
No. 20220523-CA
Filed March 21, 2024

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 210100087

James C. Jenkins, Attorney for Appellant
Daniel K. Dygert, Attorney for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

LUTHY, Judge:

¶1 This case addresses the “mutual acquiescence” element
of the doctrine of boundary by acquiescence as well as the effect
of a conveyance of title from one who obtains title
through boundary by acquiescence. B.G.T.S. Properties, LLC
(BGTS) and Balls Brothers Farm, LLC (Balls Brothers) are
the owners of neighboring record properties in Cache County.
Beginning in at least 1963, BGTS’s predecessors in
interest occupied a strip of land between their northern
record boundary and a fence line (the Fence Line) located within
Balls Brothers’s record property. BGTS sued to quiet title to a
portion of that strip (the Disputed Parcel), alleging that title
had passed to BGTS through the doctrine of boundary by
 B.G.T.S. v. Balls Brothers Farm

acquiescence. Balls Brothers filed a quiet title counterclaim,
alleging that the disputed strip had not passed to BGTS or
BGTS’s predecessors in interest. The parties then filed cross-
motions for summary judgment. The district court
denied BGTS’s motion and granted Balls Brothers’s motion,
concluding that BGTS had produced insufficient evidence to
support the mutual acquiescence element of boundary by
acquiescence.

¶2 We conclude that the district court applied an incorrect
legal standard and erred in its determination that BGTS
had produced insufficient evidence to support the
mutual acquiescence element of its boundary by acquiescence
claim. We therefore reverse the court’s ruling on mutual
acquiescence. We nevertheless affirm the court’s ultimate
denial of BGTS’s summary judgment motion and grant of
Balls Brothers’s summary judgment motion on the
alternative ground that BGTS did not satisfy its burden to
produce evidence that, even if a predecessor in interest to BGTS
acquired title to the strip of land through boundary by
acquiescence, BGTS obtained title to the Disputed Parcel from its
predecessor. 1

1. Our ultimate affirmance of the district court’s summary
judgment ruling does not require us to address the issue of
mutual acquiescence. Ordinarily, we avoid addressing issues that
are unnecessary to our resolution of the appeal. See, e.g., McBroom
v. Schmunk (In re Estate of Willey), 2016 UT 53, ¶ 16, 391 P.3d 171
(declining to rule on an issue “not necessary to the disposition of
[the] case”). But where, as here, we perceive a real possibility of
subsequent litigation between the same parties on an issue that
has been fully briefed, we will not hesitate to correct an erroneous
district court ruling on that issue so as to avoid the possibility that
the erroneous ruling will stand as res judicata in a subsequent
action.

20220523-CA 2 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

BACKGROUND

¶3 Balls Brothers’s record parcel is immediately to the north
of BGTS’s record parcel. The Fence Line runs east-to-west through
the southern portion of Balls Brothers’s record property and has
existed there since at least 1963. During that time, BGTS and its
predecessors in interest have occupied the strip of land that lies
north of BGTS’s record boundary and up to the Fence Line at a
distance of approximately twenty feet. Also during that time,
Balls Brothers and its predecessors have not used or occupied that
strip of land.

¶4 In April 1999, BGTS’s predecessor “recorded a Record of
Survey that defined the boundaries for a 6.12 acre parcel that
bordered the Balls Brothers property on the south.” The Record of
Survey identified the northern record boundary of the 6.12-acre
parcel and the Fence Line “as being separate and distinct.”

¶5 In August 2005, the co-owners of the parcel (“Seller” and
two other individuals) subdivided it, creating Lots 1 and 2 of the
Avalon Lot Split Subdivision. Lot 1 consists of the western portion
of the record parent parcel, and Lot 2 consists of the eastern
portion of the record parent parcel. The legal description of Lot 1
on the subdivision plat is a metes and bounds description that
does not include the Disputed Parcel, which lies directly north of
Lot 1, or any other portion of the strip of land between the
northern record boundary of the Avalon Lot Split Subdivision
and the Fence Line. The visual depiction of Lot 1 on the
subdivision plat also does not include the Disputed Parcel as part
of the lot.

¶6 In September 2005, Seller conveyed Lot 1 of the Avalon Lot
Split Subdivision to BGTS by a warranty deed that described the
property being transferred as “LOT 1 AVALON LOT SPLIT
SUBDIVISION PLAT AS SHOWN BY THE OFFICIAL PLAT
FILED . . . IN THE OFFICE OF THE RECORDER OF CACHE

20220523-CA 3 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

COUNTY, UTAH.” In November 2019, BGTS conveyed Lot 1 to
itself by a warranty deed that also described the land being
conveyed as “Lot 1, Avalon Lot Split Subdivision as shown by the
official plat filed . . . in the office of the Recorder of Cache County,
Utah.”

¶7 In 2020, Balls Brothers sought and obtained the annexation
of its record property—including the Disputed Parcel—into the
town of Paradise. It then subdivided its record property into
Sam’s Town Subdivision Phase 3. The legal description of Lot 19
of Sam’s Town Subdivision Phase 3 contains the Disputed Parcel.
In December 2020, Balls Brothers sent a letter to BGTS, asking that
it remove the fence. BGTS asserts that it objected and informed
Balls Brothers of its claim of boundary by acquiescence. Balls
Brothers then removed a portion of the fence.

¶8 In 2021, BGTS sued to quiet title to the Disputed Parcel. It
alleged that the parties’ respective predecessors in interest had
mutually acquiesced to the Fence Line as the property boundary
for at least twenty years after BGTS’s predecessors began
occupying the Disputed Parcel and, therefore, that title for the
Disputed Parcel had passed to BGTS through the doctrine of
boundary by acquiescence. 2 Balls Brothers filed a quiet title

2. BGTS also asserted trespass to real property. The district court
ruled that its grant of summary judgment defeating BGTS’s claim
of boundary by acquiescence “necessarily resolve[d]” the trespass
claim because BGTS cannot sustain a trespass claim where it “is
not the lawful owner of the property at issue.” Because we
ultimately affirm the district court’s order denying summary
judgment to BGTS and granting summary judgment to Balls
Brothers, and because BGTS does not challenge the court’s order
on the trespass claim, we affirm the dismissal of the trespass claim
as well.

20220523-CA 4 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

counterclaim, alleging that the disputed strip had not passed to
BGTS or BGTS’s predecessors in interest.

¶9 During discovery, BGTS deposed Balls Brothers’s
designated representative (Representative). Representative’s
grandparents owned the property in 1963, and Representative’s
mother and aunt later owned it before Balls Brothers took title to
the property. Representative did not know when the Fence Line
was established, but he agreed that it existed before his
grandparents’ deaths in the mid to late 1980s. Representative
declared that he was not aware of any lawsuit filed by his
grandparents, mother, or aunt to determine the boundary
between the properties now owned by BGTS and Balls Brothers.
He indicated that the first time he objected to the Fence Line was
through the letter he sent BGTS in December 2020. He also
testified that, to his knowledge, neither Balls Brothers nor any of
its predecessors farmed or otherwise occupied any portion of the
Disputed Parcel.

¶10 Also during discovery, BGTS provided a declaration from
a long-time resident of Paradise (Resident). Resident declared that
around 1963 he became aware of the Fence Line between the
properties and that the Fence Line existed in the same location
since then. He further declared that BGTS’s predecessors used the
Disputed Parcel for grazing cattle and for agricultural purposes
up to the Fence Line since about 1963. He said he did not know of
any instance where BGTS’s predecessors occupied the land north
of the Fence Line or of any instance where Balls Brothers’s
predecessors occupied the land south of the Fence Line.

¶11 BGTS moved for summary judgment on its quiet title
claim. Balls Brothers then also moved for summary judgment,
asserting that “BGTS has not and cannot prove by clear and
convincing evidence that title to the [Disputed Parcel] transferred
by operation of law through the doctrine of boundary of
acquiescence.”

20220523-CA 5 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

¶12 The district court agreed with Balls Brothers that BGTS had
not proved the mutual acquiescence element of its boundary by
acquiescence claim. In its decision on the cross-motions, it focused
solely on the period from 1963 to 1983 and said:

[BGTS’s] position seems to be that the existence of a
fence for a long time coupled with occupation is
sufficient to find boundary by acquiescence. The
Court, upon reviewing the case law cited herein
above, does not agree with this proposition, where
Utah case law makes it clear that occupation and
mutual acquiescence are distinct elements with
different requirements and a mere fence line is not
enough.

The case law the court cited in support of its decision
included Brown v. Jorgensen, 2006 UT App 168, ¶ 16, 136 P.3d 1252
(“The mere fact that a fence happens to be put up and
neither party does anything about it for a long period of time
will not establish it as the true boundary.” (cleaned up)), and
Hales v. Frakes, 600 P.2d 556, 559 (Utah 1979) (“[P]laintiff’s
occupation to the fence without interference was not sufficient
to establish defendant’s acquiescence in the fence as a
boundary.”).

¶13 The district court acknowledged that BGTS had “put[]
forward [Resident’s] declaration as evidence of mutual
acquiescence,” but it cited Lundahl Farms LLC v. Nielsen, 2021 UT
App 146, 504 P.3d 735, for the proposition that (in the district
court’s words) “assumptions and speculation alone are
insufficient grounds to make a finding that an element of
boundary by acquiescence is met.” The court then determined
that Resident’s declaration did not provide “sufficient evidence to
find that there was mutual acquiescence between the parties for
the full period of time between 1963–1983” because Resident was
“a third-party observer and not a party in interest or prior owner

20220523-CA 6 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

of the real property at issue.” The court reasoned that “[a]t
most, [Resident’s] declaration provides some evidence of
occupation, but it does not provide any specific facts that
show mutual acquiescence between the parties.” Accordingly,
the court determined that “[t]his evidence, even when
coupled with . . . Balls Brothers’s admissions of lack of occupation
beyond the fence, is simply not enough to meet the clear and
convincing evidentiary requirement” to prove mutual
acquiescence. Thus, the court found that “as a matter of law, there
was not mutual acquiescence between the predecessor parties”
and that, “as a result, [BGTS’s] boundary by acquiescence claim
fails.” The court therefore denied BGTS’s summary judgment
motion and granted Balls Brothers’s summary judgment motion.
BGTS appeals.

ISSUES AND STANDARD OF REVIEW

¶14 BGTS argues that the district court erred in granting
summary judgment in favor of Balls Brothers and denying BGTS’s
summary judgment motion. Specifically, BGTS contends that the
district court applied the wrong legal standard when it
determined that the uncontroverted evidence did not prove the
element of mutual acquiescence. In response, Balls Brothers
asserts, among other things, that even if BGTS’s predecessor in
interest obtained the Disputed Parcel through boundary by
acquiescence, the district court’s summary judgment ruling
should be affirmed because BGTS has produced no evidence that
it obtained title to the Disputed Parcel from its predecessor. We
review the district court’s conclusions of law on the issue of
boundary by acquiescence for correctness. See RHN Corp. v.
Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935. And “[w]e review the district
court’s grant of summary judgment for correctness, according no
deference to that court’s legal conclusions.” Oxendine v. Overturf,
1999 UT 4, ¶ 7, 973 P.2d 417.

20220523-CA 7 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

ANALYSIS

I. Mutual Acquiescence

¶15 To establish boundary by acquiescence, a claimant must
show the following:

(1) a visible line marked by monuments, fences,
buildings, or natural features treated as a boundary;
(2) the claimant’s occupation of his or her property
up to the visible line such that it would give a
reasonable landowner notice that the claimant is
using the line as a boundary; (3) mutual
acquiescence in the line as a boundary by adjoining
landowners; (4) for a period of at least 20 years.

Anderson v. Fautin, 2016 UT 22, ¶ 31, 379 P.3d 1186. “To prevail, a
claimant must prove each element by clear and convincing
evidence.” Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 42,
504 P.3d 735 (cleaned up).

¶16 In Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186, the Utah
Supreme Court explained that this state’s early case law on the
doctrine of boundary by acquiescence was unclear because it did
not “separate the doctrine of boundary by acquiescence from the
doctrine of boundary by agreement.” Id. ¶ 12. The court explained
that the law had “treated [boundary by acquiescence] as a
subsidiary remedy concerned with implying a boundary
agreement where no direct evidence of an agreement was
available.” Id. ¶ 20. Thus, the court said, it had begun “to require
[for boundary by acquiescence claims] evidence from which [it]
could infer that a nonclaimant expressly consented to treat a
visible line as a boundary.” Id. ¶ 18. But the court acknowledged
that this approach “distorted the notion of acquiescence, which
merely requires passive assent, to something more analogous to
acceptance in the contract context, which typically requires an

20220523-CA 8 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

affirmative act.” Id. (cleaned up). In other words, the failure to
adequately distinguish boundary by acquiescence from boundary
by agreement had yielded the “unfortunate consequence[]” of
“distort[ing] the mutual acquiescence requirement [of boundary
by acquiescence] by focusing on evidence from which to infer that
a nonclaimant had consented to the location of a boundary at a
visible line.” Id. ¶ 12.

¶17 The court then clarified that it had since “abandoned” this
focus: “Our more recent approach to boundary by acquiescence
cases is similar to the way we approach adverse possession
disputes. Under our current approach, . . . the mutual
acquiescence element merely requires silence or indolence by a
nonclaimant who may or may not occupy his or her property.” Id.
¶¶ 20–21. Under this new approach, “the mutual acquiescence
element roughly corresponds to the ‘continuous for the statutory
period’ requirement” of adverse possession. Id. ¶ 26 (cleaned up).
Accordingly, “[s]imilar to a titleholder in relation to an adverse
possessor, a nonclaimant can object to the boundary at any time
within the twenty-year period to prevent the claimant’s
occupancy from maturing into title,” id., but “[c]onsonant with
adverse possession jurisprudence, . . . [t]he nonclaimant need not
provide express consent, but can acquiesce through inaction,” id.
¶ 27.

¶18 The Anderson court discussed certain cases indicating this
shift. Id. ¶¶ 22–24. It noted that in Harding v. Allen, 353 P.2d 911
(Utah 1960), overruled on other grounds as recognized by Wood v.
Myrup, 681 P.2d 1255 (Utah 1984), notice of the claimant’s
occupancy “coupled with [the nonclaimant’s] failure to dispute
the boundary showed acquiescence.” Anderson, 2016 UT 22, ¶ 22.
The court then observed that after Harding, its standard was “that
silence or indolence signaled acquiescence.” Id. ¶ 24. The court
also pointed to Lane v. Walker, 505 P.2d 1199 (Utah 1973), in which
it “defined ‘acquiescence’ as more nearly synonymous with
‘indolence,’ or ‘consent by silence.’” Anderson, 2016 UT 22, ¶ 24

20220523-CA 9 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

(cleaned up). “Thus,” the Anderson court concluded, “a do-
nothing history on the part of the parties concerned results in
putting to rest titles to property.” Id. (cleaned up).

¶19 The Anderson court also identified the benefits associated
with this shift, saying that “treating boundary by acquiescence
claims as more akin to adverse possession claims permits the
former doctrine to minimize litigation and promote stability in
landownership” and “fill[s] a small but important gap in our
boundary dispute law.” Id. ¶ 21 (cleaned up). The court further
explained that “[w]ithout boundary by acquiescence, a claimant
who cannot establish either a boundary by agreement claim or an
adverse possession claim may be without legal remedy.” Id. ¶ 28.
Specifically, “[u]nder boundary by agreement, a claimant needs
to marshal evidence of an express parol agreement to alter a
disputed boundary line,” and “[b]oundary by acquiescence
addresses those cases where there is no evidence of an express
agreement, perhaps because the boundary line was established
many years prior by deceased landowners and there are no
witnesses to provide competent evidence of a parol agreement.”
Id. Additionally, “under adverse possession, a claimant must pay
taxes on the disputed property,” and “Utah’s adverse possession
statute cannot adequately address boundary disputes because [a
party] who possesses land for a long period without having legal
title, but believing [it] is the actual owner, is unlikely to think of
procuring a tax description in order to pay taxes on the land
because [it] will think that [it] is already paying taxes on it.” Id.
(cleaned up). Therefore, “[b]y treating boundary by acquiescence
claims as similar to, but distinct from, adverse possession claims,
we provide a legal remedy to those landowners who have relied
on a boundary line for a long period of time but cannot mount
evidence of an agreement or evidence to show they paid taxes on
the property up to the visible line.” Id. ¶ 29.

¶20 This is precisely the situation here. Neither party has been
able to produce evidence as to the state of mind of the landowners

20220523-CA 10 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

in 1963 with respect to the Fence Line. Nor do they need to. The
doctrine of boundary by acquiescence exists for the purpose of
addressing just such facts as those before us. BGTS provided
evidence that its predecessors occupied the Disputed Parcel up to
the Fence Line from 1963 on. Resident declared that the Fence Line
existed by about 1963 and that BGTS’s predecessors in interest
occupied the Disputed Parcel from that time, using it for cattle
grazing and agricultural purposes. Thus, Balls Brothers’s
predecessors were on notice that BGTS’s predecessors were
occupying the Disputed Parcel and using the Fence Line as the
property boundary beginning around 1963. Once BGTS presented
uncontradicted evidence of its predecessors’ twenty-year
occupation of the Disputed Parcel and treatment of the Fence Line
as the boundary, the element of mutual acquiescence was satisfied
if Balls Brothers’s predecessors remained silent during that
period. See id. ¶ 24.

¶21 And the evidence is undisputed on this point as well.
Representative testified that he was not aware of any related
lawsuit filed by his grandparents, mother, or aunt and that the
first time he objected to the Fence Line was through the letter he
sent BGTS in December 2020. Moreover, neither party presented
evidence that an objection was raised between 1963 and 1983. As
already observed, “a do-nothing history on the part of the parties
concerned results in putting to rest titles to property,” id. (cleaned
up), and here the parties and their predecessors did nothing to
dispute the Fence Line as the property boundary between 1963
and 1983. 3 By failing to object during that period—in other words,

3. Balls Brothers asserts that mutual acquiescence is not
determined by looking only to the twenty-year period after the
construction of the fence. It argues that, instead, events beginning
in 1999 are also relevant to this issue. However, when all elements
of boundary by acquiescence are met, title automatically passes
without judicial involvement. See Q-2 LLC v. Hughes, 2016 UT 8,
(continued…)

20220523-CA 11 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

by choosing silence—Balls Brothers’s predecessors displayed
their acquiescence to the Fence Line as the property boundary. Id.

¶22 Furthermore, while Representative’s admission that Balls
Brothers’s predecessors never occupied the Disputed Parcel is not
required to satisfy either the element of occupation by the
claimant or that of mutual acquiescence, see id. ¶ 30, it further
evinces Balls Brothers’s predecessors’ assent to the Fence Line as
the property boundary. Balls Brothers’s predecessors were not
only silent with respect to the Fence Line, but they chose to farm
the land north of the Fence Line and to not use the land south of
the Fence Line at all. This uncontroverted reality provides
additional evidence that Balls Brothers’s predecessors assented to
the use of the Fence Line as the property boundary. See RHN Corp.
v. Veibell, 2004 UT 60, ¶ 24, 96 P.3d 935 (“To acquiesce means to
recognize and treat an observable line, such as a fence, as the
boundary dividing the owner’s property from the adjacent
landowner’s property.” (cleaned up)).

¶23 In finding that BGTS’s evidence was nevertheless legally
insufficient to establish mutual acquiescence, the district court
looked only to Resident’s declaration and disregarded it—for
purposes of the element of mutual acquiescence—because
Resident did “not provide any specific facts that show mutual
acquiescence between the parties,” by which the court apparently
meant that Resident did not provide evidence of Balls Brothers’s

¶ 18, 368 P.3d 86 (“Title is vested as soon as the elements are
satisfied just as if title had been transferred by deed . . . .” (cleaned
up)). Because BGTS alleges that title to the Disputed Parcel passed
in 1983, we limit our mutual acquiescence inquiry to the period of
1963 to 1983.
Balls Brothers also asserts an equitable estoppel argument
based on events beginning in 1999. Because we ultimately affirm
the grant of summary judgment in favor of Balls Brothers, we do
not address Balls Brothers’s estoppel argument.

20220523-CA 12 2024 UT App 37
 B.G.T.S. v. Balls Brothers Farm

predecessors’ affirmative consent to the Fence Line as the
boundary. 4 However, this runs counter to our supreme court’s
holding that evidence suggesting a nonclaimant’s affirmative
consent to the location of a visible boundary line is no longer
required to satisfy this element. See Anderson v. Fautin, 2016 UT 22,
¶ 21, 379 P.3d 1186.

¶24 The district court relied on language from Brown v.
Jorgensen, 2006 UT App 168, 136 P.3d 1252, stating that “the mere
fact that a fence happens to be put up and neither party does
anything about it for a long period of time will not establish it as
the true boundary.” Id. ¶ 16 (cleaned up). The court also cited
Hales v. Frakes, 600 P.2d 556 (Utah 1979), as supporting this
proposition. In Hales, our supreme court indeed said that the
district court “could properly determine . . . that the plaintiff’s
occupation to [a] fence without interference was not sufficient to
establish defendant’s acquiescence in the fence as a boundary.” Id.
at 559. Likewise, in Jorgensen we said that because the claimants

4. The district court also disregarded Resident’s declaration
because Resident was “a third-party observer and not a party in
interest or prior owner of the real property at issue” and because
“assumptions and speculation alone are insufficient grounds to
make a finding that an element of boundary by acquiescence is
met.” The court erred in these respects. In Lundahl Farms LLC v.
Nielsen, 2021 UT App 146, 504 P.3d 735, this court stated that
evidence by third parties regarding such topics as “conditions
present throughout [their] lifetime[s], including the existence of
certain fencing and [the landowners’] uses of the property” may
be relied on “in speaking to mutual acquiescence of the then-
owners” of the land. Id. ¶ 67. Resident declared his awareness of
the Fence Line and his observations regarding the landowners’
use of the land. These firsthand observations are neither
assumptions nor speculation. Accordingly, his declaration
presents evidence that is rightly considered in support of a claim
for boundary by acquiescence. See id.

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 B.G.T.S. v. Balls Brothers Farm

there had “never actually communicated their belief to [the record
property owner], either by word or action,” that a fence that was
not on the record boundary “was the property line,” the
claimants’ boundary by acquiescence claim failed. 2006 UT App
168, ¶ 16. But on this point, Jorgensen, Hales, and any other case
suggesting that evidence of a property owner’s affirmative
consent is needed to prove the mutual acquiescence element of
boundary by acquiescence must be classed among the “early
cases” that “looked for evidence of consent” that Anderson
overruled when it “abandoned the implied agreement approach
to boundary by acquiescence disputes.” 2016 UT 22, ¶¶ 17, 19–20.

¶25 Because in this case there is no genuine dispute that BGTS’s
predecessors in interest occupied the Disputed Parcel and treated
the Fence Line as the boundary from 1963 to 1983 and that Balls
Brothers’s predecessors in interest remained silent during the
same time, the element of mutual acquiescence is satisfied as a
matter of law. The district court erred by applying an outdated
legal standard and finding otherwise. 5

II. Conveyance of Title

¶26 Despite our foregoing conclusion, we affirm the district
court’s grant of summary judgment in favor of Balls Brothers and
denial of summary judgment to BGTS. We do so on an alternative
ground: that BGTS failed to carry its burden to produce evidence
that the Disputed Parcel was conveyed to it. In responding to
BGTS’s motion for summary judgment and in making its own
motion for summary judgment, Balls Brothers argued that

5. The district court expressly did not “determine whether the
remaining required elements [of boundary by acquiescence] have
been satisfied,” and we do not reach that question in the first
instance. See R.O.A. Gen. Inc. v. Salt Lake City Corp., 2022 UT App
141, ¶ 39, 525 P.3d 100 (“We are mindful that we are a court of
review, not of first view . . . .” (cleaned up)).

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 B.G.T.S. v. Balls Brothers Farm

because BGTS produced no evidence that, even if legal title to the
Disputed Parcel had passed to Seller, Seller had passed that title
to BGTS, BGTS’s boundary by acquiescence claim fails. We agree.

¶27 In Brown v. Peterson Development Co., 622 P.2d 1175 (Utah
1980), the Utah Supreme Court addressed the conveyance of legal
title obtained through the doctrine of boundary by acquiescence.
There, a group of claimants asserted boundary by acquiescence
where their predecessors in interest had farmed a disputed piece
of property up to a visible fence line that had been treated as a
boundary for decades. Id. at 1176–77. Before the claimants
obtained their properties, however, their predecessors’ parcel was
subdivided. Id. at 1177. A survey conducted in connection with
the preparation of the subdivision plat revealed that the old fence
line was approximately seventy feet east of the record boundary
of the property to be subdivided. Id. On the subdivision plat, the
“surveyed line was designated as the easterly boundary line of
the [subdivision],” leaving the disputed “strip of land between the
east subdivision line and the old fence” outside the plat. Id. Each
claimant then received from their predecessors both (1) a deed to
a subdivision lot and (2) a quitclaim deed to a corresponding
portion of the disputed strip between the subdivision and the old
fence. Id. When our supreme court reviewed the claimants’
boundary by acquiescence claims, it said:

The fact that the [claimants] had notice of the actual
lot boundaries before buying and closing their lot
purchases would have been fatal to their action if
they had not received a conveyance of the legal title
to the disputed strip of land by means of quitclaim
deeds from the former owners of it. The later
quitclaim deeds passed the legal title to them. The
title lost by defendants’ predecessors by virtue of
the operation of the doctrine of boundary by
acquiescence did not revert to the defendants nor to
the former owners of the record title when the

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 B.G.T.S. v. Balls Brothers Farm

surveyors established the record title line . . . . The
legal title to the disputed strip remained in [the
party who satisfied the elements of boundary by
acquiescence] or [that party’s] grantee or successor
in interest, from whom the [claimants] received
their title.

Id. at 1178.

¶28 Our court addressed this issue further in Pioneer Home
Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, 457 P.3d 393, cert.
denied, 466 P.3d 1073 (Utah 2020). There, the district court had
assumed for purposes of a motion for summary judgment that the
claimant’s predecessor in interest had satisfied the elements of
boundary by acquiescence, but the district court had ruled that a
quitclaim deed from the predecessor in interest to the claimant
was “a necessary element of boundary by acquiescence” and that
the claimant’s case failed because the claimant had not obtained a
deed to the disputed strip of property. Id. ¶¶ 26–27. The district
court “determined that title to the disputed property was never
transferred to [the claimant] when [the claimant] never received a
deed to the [disputed property] from a former owner.” Id. ¶ 27
(cleaned up).

¶29 There, we did “not agree with the district court’s apparent
presumption that, in the abstract, legal title acquired through
boundary by acquiescence may be transferred to a successor-in-
interest only through deed.” Id. ¶ 35. Instead, we acknowledged
that “title acquired through boundary by acquiescence may be
transferred to a successor through means apart from a deed,”
“including by grant, descent, adverse possession, or some other
operation of law.” Id. (cleaned up); see also Q-2 LLC v. Hughes, 2016
UT 8, ¶ 18, 368 P.3d 86 (“Because title is vested as soon as the
elements are satisfied just as if title had been transferred by deed,
title remains vested until it passes by grant, descent, adverse
possession, or some other operation of law.” (cleaned up)).

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 B.G.T.S. v. Balls Brothers Farm

However, relying on Peterson Development and Q-2 LLC v. Hughes,
2016 UT 8, 368 P.3d 86, we continued,

Nevertheless, even if transfer by deed may not be
the exclusive vehicle through which title acquired
through boundary by acquiescence may be
transferred, it is clear that some vehicle of title
transfer as between the vested title owner and a
potential successor-in-interest must occur to
establish the successor’s entitlement to the disputed
property.

Pioneer Home Owners Ass’n, 2019 UT App 213, ¶ 36. “In other
words,” we said, “even if [the claimant] was perhaps not strictly
required to establish its ownership of the [disputed property]
through deed, for purposes of summary judgment it was required
to put forth evidence establishing its acquisition of the [disputed
property] through some other means.” Id. Because “the only
evidence before the court to establish the essential elements of [the
claimaint’s] claims was (1) the [predecessor’s] alleged legal title to
the [disputed property] and (2) [the claimant’s] current
possession, which both parties essentially agreed was insufficient
on its own to establish title through boundary by acquiescence,”
we affirmed the grant of summary judgment against the claimant.
Id. ¶¶ 38–39.

¶30 Balls Brothers asserts that we should reach the same result
here, and we agree. Even if legal title to the Disputed Parcel
passed through boundary by acquiescence to one of BGTS’s
predecessors in interest in 1983, BGTS has not provided evidence
that it has acquired that title. Like the claimant in Pioneer Home
Owners Ass’n, BGTS has not provided evidence beyond such
predecessors’ satisfaction of the elements of boundary by
acquiescence and BGTS’s own occupation of the Disputed Parcel,
which occupation alone BGTS has not argued is sufficient to
establish title. Id. ¶ 38. And here, like there, this is not enough. Id.

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 B.G.T.S. v. Balls Brothers Farm

¶31 Critically, BGTS has failed to provide evidence that Seller,
if he had acquired legal title to the Disputed Parcel, conveyed
legal title to BGTS, given that, like in Peterson Development, a
survey and subdivision plat revealed the record boundary line
before BGTS obtained its property from Seller. See 622 P.2d at
1177. In April 1999, BGTS’s predecessor recorded a survey
indicating that the Fence Line did not align with the northern
record boundary. Seller and his co-owners subsequently
subdivided the parent parcel, and Seller conveyed Lot 1 to BGTS. 6
We have not been presented with evidence of Seller’s intent
regarding the disputed strip, and BGTS’s occupation of the
Disputed Parcel is inadequate. Without additional evidence, we
cannot know whether—if Seller held legal title—Seller intended

6. BGTS argues in supplemental briefing on this question that
“just like in [Peterson Development], nothing about using the record
boundaries in [the] . . . subdivision causes title to the Disputed
Parcel to ‘revert’ to [Balls Brothers] or its predecessors.” See Brown
v. Peterson Dev. Co., 622 P.2d 1175, 1178 (Utah 1980). We agree—
Peterson Development confirms this point. However, this reality
does not aid BGTS. Although it is true that, assuming legal title
had passed to BGTS’s predecessors, subsequently subdividing the
parent parcel and conveying only a portion of it to BGTS would
not have the effect of transferring title to the disputed strip back
to Balls Brothers, such a course would simply leave any
unconveyed portion of the disputed strip with BGTS’s last
predecessor who received that legal title. Accordingly, BGTS is
mistaken when it further asserts that “[h]ere, just as in [Peterson
Development], ‘legal title to the disputed strip remained’ in BGTS
through its predecessors in interest.” Title remaining in BGTS’s
predecessor is not synonymous with title “remaining” in BGTS.
Only if BGTS first acquires title through “grant, descent, adverse
possession, or some other operation of law,” Pioneer Home Owners
Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 35, 457 P.3d 393
(cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020), can such title
then remain in BGTS.

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 B.G.T.S. v. Balls Brothers Farm

the disputed strip to be attached in its entirety to Lot 1, in its
entirety to Lot 2, to both Lot 1 and Lot 2 in portions aligning with
the north-to-south boundary between the lots (with the Disputed
Parcel going to BGTS), or to neither lot.

¶32 Neither the legal description of Lot 1 on the subdivision
plat nor the legal description in BGTS’s warranty deed included
the Disputed Parcel. BGTS asserts that, “[w]hile the legal
description of Lot 1 in the warranty deed . . . did not expressly
include a description of the Disputed Parcel, the conveyance was
of [the predecessor’s] entire interest in the property.” But this
cannot be true on these facts. The parent parcel was subdivided
after the survey, and the conveyance of Lot 1 was not of the co-
owners’ “entire interest” in the parent parcel because they did not
convey Lot 2—or, without further evidence to the contrary, the
Disputed Parcel or any other part of the disputed strip—to BGTS.
The deed clearly states that it was conveying Lot 1 “as shown by
the official plat,” and the plat clearly indicates that the northern
boundary of Lot 1 is the record boundary line, not the Fence Line.
Thus, under the circumstances of this case, the “fact that [BGTS]
had notice of the actual lot boundaries before buying and closing”
its lot purchase is “fatal” to its action because it has produced no
evidence that it “received a conveyance of the legal title to the
[Disputed Parcel] by means of [a] quitclaim deed[]” or some other
transfer. Id. at 1178; see also Pioneer Home Owners Ass’n v. TaxHawk
Inc., 2019 UT App 213, ¶ 36, 457 P.3d 393, cert. denied, 466 P.3d
1073 (Utah 2020).

¶33 Without deciding the issue, we acknowledge that there
would have been a colorable argument for a different result if
BGTS had obtained title to the entire record parcel owned by its
predecessor after the elements of boundary by acquiescence were
allegedly met. We also acknowledge, without deciding the issue,
that there would also have been a colorable argument for a
different result if BGTS had received title to Lot 1 before anyone’s
discovery of a discrepancy between the record boundary and the

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 B.G.T.S. v. Balls Brothers Farm

visible fence line that was being treated as a boundary. Cf. RHN
Corp. v. Veibell, 2004 UT 60, ¶ 31, 96 P.3d 935 (“Once adjacent
landowners have acquiesced in a boundary for a long period of
time, the operation of the doctrine of boundary by acquiescence is
not vitiated by a subsequent discovery of the true record boundary
by one of the parties.” (emphasis added)). But in cases like
Peterson Development, Pioneer Home Owners Ass’n, and this one,
where (1) a record parcel that has been assertedly augmented
through boundary by acquiescence is divided by an owner with
actual knowledge of the discrepancy between the record
boundary and the visible line and (2) the description of the
claimant’s portion of the parent parcel does not include any of the
property assertedly gained through boundary by acquiescence,
evidence of a separate transfer of the property gained through
boundary by acquiescence is required. See Brown v. Peterson Dev.
Co., 622 P.2d 1175, 1177–78 (Utah 1980); Pioneer Home Owners
Ass’n, 2019 UT App 213, ¶¶ 4–5, 36.

¶34 “To defeat summary judgment[,] the non-moving party,
who bears the burden of proof at trial, must produce affirmative
evidence, beyond mere reliance on the pleadings, showing that
there is a genuine issue for trial.” Pioneer Home Owners Ass’n, 2019
UT App 213, ¶ 30 (cleaned up). BGTS did not produce affirmative
evidence that it acquired its predecessor’s asserted interest in the
Disputed Parcel. Therefore, there was no genuine dispute of
material fact on this critical issue, and Balls Brothers is entitled to
judgment as a matter of law. Accordingly, the court’s grant of
summary judgment to Balls Brothers was proper.

CONCLUSION

¶35 The district court applied the law incorrectly when it ruled
that Balls Brothers’s predecessors’ silence did not constitute
mutual acquiescence to the Fence Line as the property boundary.
The uncontroverted evidence before the court was sufficient to

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 B.G.T.S. v. Balls Brothers Farm

show that the parties’ predecessors in interest mutually
acquiesced to the Fence Line as the boundary. However, even
assuming that a predecessor in interest to BGTS obtained legal
title to the Disputed Parcel through boundary by acquiescence,
BGTS has failed to satisfy its burden to demonstrate that it
acquired such predecessor’s interest in the Disputed Parcel. We
therefore affirm the district court’s denial of BGTS’s motion for
summary judgment and its grant of Balls Brothers’s motion for
summary judgment.

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