Huck v. Ken's House

2022 UT App 64

THE UTAH COURT OF APPEALS

RAINER HUCK,
Appellant,
v.
KEN’S HOUSE LLC,
Appellee.

Opinion
No. 20210122-CA
Filed May 12, 2022

Third District Court, West Jordan Department
The Honorable Kristine Johnson
No. 180901341

W. Matthew Schiffgen, Attorney for Appellant
Eric P. Lee and Matthew J. Pugh,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
JILL M. POHLMAN and RYAN D. TENNEY concurred.

HARRIS, Judge:

¶1 This case involves a dispute between neighbors over
ownership of a narrow strip of land along the border between
their respective properties. Ken’s House LLC (Ken’s House) is the
record owner of the strip of land; Rainer Huck claims to have
acquired the strip through operation of the legal doctrine known
as boundary by acquiescence. After a bench trial, the trial court
sided with Ken’s House and rejected Huck’s claims of quiet title
and trespass. Huck now appeals, and we affirm.
Huck v. Ken’s House

BACKGROUND 1

¶2 In April 2012, Huck bought a parcel of real property (the
Huck Property) located on one of the “avenues” in the Avenues
neighborhood of Salt Lake City. On the parcel was an existing
building containing several apartments. From approximately
1972 to 2012, the Huck Property was controlled—through various
business entities—by one family. When Huck’s predecessors in
interest acquired the Huck Property, a portion of the property’s
western boundary was marked by a fence—described as a “pig-
wire fence”—running in a north-south direction. The fence was
located approximately nine feet to the west of the apartment
building. The wire fence did not run the entire length of the
property, however; the southwestern corner of the Huck Property
was covered in overgrown trees and brush, and no fence existed
in this area. Over the years, the fence fell into a state of disrepair,
with its wire being described as “trampled down” to the point
where there remained only mere “remnants” of a fence.

¶3 The Huck Property sits next to a corner lot, and the
property’s western boundary abuts three separate parcels that
front one of the perpendicular “streets” in the Avenues
neighborhood. In 2016, Ken’s House acquired the corner lot (the
Ken’s House Property), which abuts the southwestern portion of
the Huck Property. Shortly after acquiring the property, Ken’s
House set about making renovations, including construction of a
detached two-car garage.

¶4 As part of those renovations, Ken’s House commissioned a
survey, which indicated that the actual boundary between the

1. “On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite the
facts consistent with that standard and only present conflicting
evidence to the extent necessary to clarify the issues raised on
appeal.” Linebaugh v. Gibson, 2020 UT App 108, n.5, 471 P.3d 835
(quotation simplified).

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Huck v. Ken’s House

Huck Property and its neighbors to the west was approximately
two-and-a-half feet farther east than where the fence remnants
were located. Part of the new garage was to be built within the
two-and-a-half-foot wide strip of land—along the Ken’s House–
Huck property boundary—located between the surveyed
property line and the line indicated by the fence remnants (the
Disputed Strip). Prior to beginning construction of the garage,
Ken’s House received permission from city planners for the
garage to be built within seven-and-a-half feet of the apartment
building on the Huck Property, which was an exception to the
city’s otherwise-applicable ten-foot setback requirement. As part
of the approval process, a public meeting was held to discuss,
among other things, the proposed setback variance, and notice of
that meeting was sent to residents of the neighborhood. Huck did
not attend this meeting, and he did not lodge any objection—on
any basis, whether oral or written—to Ken’s House receiving a
variance to the setback requirement, including any objection on
the basis that he owned the Disputed Strip. 2 After receiving
approval for the variance, Ken’s House completed construction of
the garage, in the location it anticipated, near the end of 2018.

¶5 Huck subsequently sued Ken’s House, seeking to quiet
title, in his favor, to the Disputed Strip through operation of
boundary by acquiescence; he also asserted that the contractors
building the garage had trespassed on his land during
construction. The case proceeded to a two-day bench trial.

2. At trial, Huck testified that, despite being on the mailing list for
the setback variance meeting, he never received notice of the
meeting. Huck further asserted that if he had received notice of
the meeting, he would have attended and would have objected to
the variance. In its findings of fact, the trial court acknowledged
Huck’s claim that he did not receive notice of the meeting, but it
nonetheless found “persuasive” certain trial testimony to the
effect “that written notice was placed on [Huck’s] property.”
Huck does not challenge this finding of fact on appeal.

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Huck v. Ken’s House

¶6 At trial, Huck called various witnesses, including an
individual (Property Manager) who had helped manage and
maintain the apartment building prior to (and, in a limited
capacity, after) Huck’s purchase of the Huck Property. Property
Manager testified that, when he first began working on the Huck
Property in 1972, the wire fence was already in place, and he
offered his belief that the land east of the fence, including the
Disputed Strip, was part of the Huck Property. Property Manager
also testified that, although the fence had certainly been
“trampled down” over the years, Huck’s predecessors had never
attempted to remove the fence, and that some “T-posts” from the
fence had remained in place until Ken’s House removed them
during construction of the garage. Property Manager testified that
he had used the area west of the apartment complex—but not
necessarily the Disputed Strip—for various maintenance-related
tasks, including installing air conditioning units, repairing
electrical conduits, and trimming the weeds that grew in that area.
There was some discussion of Property Manager storing ladders
near the old fence, but he ultimately acknowledged that those
items were actually stored well to the north of the Ken’s House
Property, and therefore not within the Disputed Strip. Property
Manager testified of no other use of the Disputed Strip.

¶7 Huck also called a member of the family (Predecessor) that
controlled the Huck Property prior to Huck’s acquisition.
Predecessor testified that, during the times she visited the Huck
Property (approximately four times a year), she remembered
seeing “remnants of fencing” along the western portion of the
property, and that although the fence was “inline” and obviously
there, it had been trampled and beat down toward the ground and
was in a state of disrepair. Predecessor additionally testified that
the area west of the apartment complex never had any sort of
“manicured lawn” or sprinkler lines.

¶8 Huck himself also took the stand, testifying that when he
bought the Huck Property in 2012, the wire fence was intact, and
that he understood that fence to represent the boundary between

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Huck v. Ken’s House

the Huck Property and the Ken’s House Property. Huck also
testified that his tenants sometimes used the area west of the
apartment building to walk their pets, and that he used the area—
but not necessarily the Disputed Strip—to access the side of the
apartment building for maintenance-related tasks. Huck
acknowledged, however, that “the main use” of the area west of
the apartment building was for safety and maintenance and to
comply with the city’s ten-foot setback requirement.

¶9 Ken’s House then called various witnesses, including the
contractor (Contractor) who had been in charge of building the
garage. Contractor testified that, when he first began construction
of the garage, he did not consider the remnants of the fence to
mark the boundary between the Huck Property and the Ken’s
House Property. Contractor also testified that, during the
construction of the garage, he and his team “absolutely tried to
limit any use of” the Huck Property and that the equipment used
in the construction would have been placed only on the Ken’s
House Property. When asked if the machinery used during
construction of the garage ever had to operate on the Huck
Property, Contractor responded, “Absolutely not.”

¶10 After considering the evidence presented, as well as
written closing arguments submitted by the parties, the trial court
issued a written ruling, concluding that “Huck ha[d] failed to
meet the first three elements of a boundary by acquiescence.” 3
Regarding the “occupation” element, the court found that “there
was not clear and convincing evidence that the entire boundary
area was . . . occupied” because, “[w]hile there was some
testimony regarding accessing the building for maintenance,
accessing window air conditioners, etc., it was not clearly
established that the disputed land . . . was utilized.” The court also
concluded that “there was no clear evidence that any such use was
sufficient to provide notice to the property owners on the west.”

3. See infra ¶ 12 (listing the required elements of boundary by
acquiescence under Utah law).

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Huck v. Ken’s House

As for Huck’s trespass claim, the court found that “[a]bsent a
finding that [Huck] own[ed] the disputed land, the [trespass]
claim [could not] proceed.” The court accordingly entered
judgment in favor of Ken’s House.

ISSUES AND STANDARDS OF REVIEW

¶11 Huck now appeals, challenging the trial court’s factual
findings and legal conclusions in two respects. First, he asserts
that the court erred in determining that Huck failed to prove the
first three elements of boundary by acquiescence. Second, he
asserts that the court erred in determining that he failed to prove
trespass. “We will not reverse the findings of fact of a trial court
sitting without a jury unless they are clearly erroneous.” RHN
Corp. v. Veibell, 2004 UT 60, ¶ 22, 96 P.3d 935 (quotation
simplified). “To qualify as clearly erroneous a trial court’s
findings must be either against the clear weight of the evidence or
must induce a definite and firm conviction that a mistake has been
made.” Jacob v. Bate, 2015 UT App 206, ¶ 13, 358 P.3d 346
(quotation simplified). “But a finding is not clearly erroneous if,
viewing the evidence in the light most favorable to the trial court’s
findings, the evidence is legally sufficient to support the finding.”
Id. And we review the trial court’s conclusions of law “for
correctness, according the trial court no particular deference.”
RHN Corp., 2004 UT 60, ¶ 22 (quotation simplified).

ANALYSIS

I

¶12 Huck first contends that the trial court erred by
determining that he had not satisfied the first three elements of
boundary by acquiescence. To prove boundary by acquiescence,
a claimant must demonstrate the following four elements:

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Huck v. Ken’s House

(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.

Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 42, 504 P.3d 735
(quotation simplified). Boundary by acquiescence is a critical part
of our property law; it “fills an important gap in the law left
unaddressed by other doctrines.” Staker v. Ainsworth, 785 P.2d 417,
423 (Utah 1990). But because boundary by acquiescence, where
applicable, operates to alter recorded property lines, the doctrine
“has always been restrictively applied in Utah.” See id. One
important restriction on the doctrine is that, to succeed on a
boundary by acquiescence claim, “a claimant must prove each
element by clear and convincing evidence.” Lundahl Farms, 2021
UT App 146, ¶ 42 (quotation simplified). Although we recognize
that the elements of boundary by acquiescence are, to some
degree, interdependent, in this case we focus our analysis on the
second element. In our view, the court did not err in determining
that Huck failed to meet his burden of showing “occupation.”

¶13 To satisfy the second element of boundary by
acquiescence, Huck was required to demonstrate, by clear and
convincing evidence, that he (or his predecessors in interest)
occupied the Disputed Strip in such a way as to give Ken’s House
(or its predecessors) notice that Huck claimed ownership of it. See
Anderson v. Fautin, 2016 UT 22, ¶ 26, 379 P.3d 1186 (stating that
“the occupation element of boundary by acquiescence
corresponds with the ‘actual, open and notorious’ requirements
of adverse possession,” meaning that a claimant must “occupy his
or her property up to a visible line in such a manner as to place
the nonclaimant on notice that he or she claims the property so

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Huck v. Ken’s House

occupied” (quotation simplified)); see also Dean v. Kang Sik Park,
2012 UT App 349, ¶ 29, 293 P.3d 388 (explaining that, when
analyzing the occupation element, “courts should consider
whether a particular occupation up to a visible line would place
a reasonable party on notice that the given line was being
treated as the boundary between the properties” (quotation
simplified)). This element can be satisfied, for example, “where
land up to the visible, purported boundary line is farmed,
occupied by homes or other structures, improved, irrigated, used
to raise livestock, or put to similar use.” Bahr v. Imus, 2011 UT 19,
¶ 36, 250 P.3d 56.

¶14 In this case, Huck did not present clear and convincing
evidence that he or his predecessors in interest occupied the
Disputed Strip in such a way as to give notice that they claimed
ownership of it. Indeed, the evidence presented at trial established
that the area was, in part, covered with bushes and weeds, and
that Huck used it only for “safety” and to comply with the city’s
ten-foot setback requirement. Although some testimony at trial
indicated that other portions of the side yard west of the
apartment building were sometimes used to walk pets or to access
the building for various maintenance-related tasks, that testimony
failed to establish any noticeable use of the Disputed Strip (as
opposed to other portions of the nine-foot side yard). Moreover,
while Property Manager testified that he occasionally trimmed
weeds that were growing in the area west of the apartment
building, Huck presented no evidence regarding how often this
trimming took place or how much of it took place in the Disputed
Strip itself as opposed to the side yard generally. Even Huck’s
own attorney, in arguing against a mid-trial motion made by
Ken’s House, acknowledged—after Huck’s evidence had all come
in—that “there was very little uses for that area simply by the
nature of its location and especially its proximation to the other
buildings,” and maintained only that Huck and his predecessors
had used the Disputed Strip to comply with the ten-foot setback
requirement.

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Huck v. Ken’s House

¶15 But even assuming, without deciding, that this sort of
passive use could conceivably be sufficient to satisfy the
occupation element of boundary by acquiescence, Huck
presented no evidence that he ever notified any of his neighbors
of his belief that he was occupying the Disputed Strip for
purposes of satisfying the setback requirement. Under the facts
presented here, Huck simply did not present clear and convincing
evidence that he occupied the Disputed Strip in such a way as to
place Ken’s House “on notice that the given line was being treated
as the boundary between the properties.” See Dean, 2012 UT App
349, ¶ 29 (quotation simplified). Accordingly, Huck’s boundary
by acquiescence claim founders on the second element, and the
trial court therefore did not err in dismissing that claim.

II

¶16 Huck next claims that the trial court erred in concluding
that Ken’s House did not trespass on his property during
construction of the garage. Huck’s claims in this regard are
twofold. First, Huck contends that he owns the Disputed Strip by
operation of the doctrine of boundary by acquiescence, and he
points out that Ken’s House’s garage is built, in part, on the
Disputed Strip. Because we have determined that the court did
not err in dismissing Huck’s boundary by acquiescence claim, this
first part of Huck’s trespass claim necessarily fails as well.

¶17 Second, Huck contends that, even if Ken’s House owns the
Disputed Strip and even if the garage is entirely built on Ken’s
House land, Ken’s House contractors trespassed onto Huck’s
property while constructing the garage. To demonstrate trespass,
Huck needed to introduce evidence that the contractors
intentionally entered his land without permission. See Linebaugh
v. Gibson, 2020 UT App 108, ¶ 36, 471 P.3d 835 (“A person is liable
for trespass when, without permission, he intentionally enters
land in the possession of another, or causes a thing or a third
person to do so.” (quotation simplified)). But Huck presented
insufficient evidence of any such trespass at trial. Contractor

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Huck v. Ken’s House

testified that he and his team “absolutely tried to limit any use of”
the Huck Property during construction and that it “absolutely
[did] not” operate any machinery on the Huck side of the property
line. To rebut this testimony, Huck points to a single photograph
showing that some fencing materials, including a post, that were
previously located on the Disputed Strip had been removed and
laid down on the Huck Property, just over the property line. But
the fact that these particular fencing materials—which were
claimed by Huck as his property—were set down just over the
Huck side of the line does not, standing alone, prove trespass; it
could merely connote an effort by the contractors, while standing
on the Ken’s House side of the property line, to give fencing
components claimed by Huck to Huck. Indeed, Contractor did not
acknowledge that he ever set foot on the Huck side of the property
line; when asked about the photograph, he stated merely that he
had “removed and set to the side” a post that had been located in
the Disputed Strip. At a minimum, we cannot say that the trial
court erred in concluding that this photograph, standing alone,
did not constitute sufficient evidence of trespass.

CONCLUSION

¶18 Huck failed to present clear and convincing evidence that
he (or his predecessors) occupied the Disputed Strip in a way that
would have put Ken’s House (or its predecessors) on notice that
Huck claimed ownership of it. On this basis, we affirm the trial
court’s judgment in favor of Ken’s House on Huck’s boundary by
acquiescence claim. And for the reasons just stated, we also affirm
the trial court’s judgment in favor of Ken’s House on Huck’s
trespass claim.

¶19 Affirmed.

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