Freestone v. Walton

2025 UT App 41

THE UTAH COURT OF APPEALS

DAVID L. FREESTONE AND JANET FREESTONE,
Appellants,
v.
COREY WALTON AND HEATHER N. WALTON,
Appellees.

Opinion
No. 20230618-CA
Filed March 20, 2025

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 190906779

Brett D. Cragun, Attorney for Appellants
Russell A. Cline, Attorney for Appellees

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

HARRIS, Judge:

¶1 David L. Freestone and Janet Freestone (the Freestones)
share a backyard boundary with their neighbors Corey Walton
and Heather N. Walton (the Waltons). The Freestones claim that,
due to application of the doctrine of boundary by agreement, the
boundary between their respective parcels is different from what
is depicted on property records. The district court dismissed the
Freestones’ boundary-by-agreement claim on summary
judgment, and the Freestones appeal that decision. We affirm.
Freestone v. Walton

BACKGROUND 1

¶2 The Freestones purchased their property (the Freestone
Property) in 2008. At the time, the adjacent property (the Walton
Property) was owned by another family (the Walton
Predecessors), who had already installed a sprinkler system and
landscaping along what they thought was the eastern boundary
of their property. The contractor who installed the sprinkler
system marked what he thought was the property line in spray
paint, and he told the Walton Predecessors that “this is where [the
boundary] is”; the Walton Predecessors “said okay” and
proceeded to have the contractor install the sprinklers and the
landscaping up to those markers and no further. They did not,
however, obtain a survey of their property or consult their record
title to verify the correct location of the eastern boundary of their
property; they merely relied on the contractor’s designation of the
property line and came to believe that this line represented the
true boundary.

¶3 When the Freestones acquired their property in 2008, the
area between the houses was open; no fence separated the two
properties. And like the Walton Predecessors, the Freestones also
assumed, and came to believe, that the sprinkler/landscaping line
established by the Walton Predecessors represented the boundary
between the respective parcels. Based on this understanding, the
Freestones made certain improvements—including an expanded
playground area and an extension of their driveway—in what
they considered to be their backyard. But the Freestones likewise
did not obtain a survey or consult their record title in an effort to
ascertain where the true property boundary was.

1. In reviewing a grant of summary judgment, “we recite the facts
in the light most favorable to the non-moving party.” Burton v.
Chen, 2023 UT 14, ¶ 5 n.2, 532 P.3d 1005 (cleaned up).

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Freestone v. Walton

¶4 A few years later, in 2012, the Freestones began to make
plans to install a fence between their property and the Walton
Property, and they informed the Walton Predecessors of their
plans. In particular, the Freestones discussed with the Walton
Predecessors the type, color, and cost of the fence, and suggested
that the fence be located along the landscaping line that had
previously been established. The Walton Predecessors did not
agree to contribute to the cost of the fence, but they made no
objection to the Freestones’ plans to build the fence, at their own
expense, in the manner and at the location described. Thereafter,
the Freestones proceeded to install the fence along the
landscaping line; before doing so, they did not obtain a survey or
take other action intended to ascertain the true location of the
boundary. And for the next few years, no party raised any issue
about the location of the fence or the boundary more generally.

¶5 In 2017, the Waltons acquired the Walton Property. A
couple of years later, the Freestones investigated the possibility of
“building a shop” in the yard behind their house; during the
course of this process, the Freestones discovered that the fence
they had built in 2012 had not been installed along the property
line. The fence’s northern starting point is apparently more or less
in the right place, but the fence angles too far to the west onto the
Walton Property, resulting in a wedge-shaped discrepancy
between the fence line and the true property line; at the southern
end of the properties, the gap between the fence line and the
property line is more than thirty feet. This wedge-shaped part of
the Walton Property is herein referred to as “the Disputed Strip.”2

2. At one point during the summary judgment briefing in the
district court, the Freestones asserted that there “is a potential
question of fact as to the location of the” actual record boundary
line. They claimed that “a search of the Weber County land
records shows that the [fence line] and [boundary of record] are
one and the same.” We do not purport to resolve any such dispute
(continued…)

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Freestone v. Walton

When the Freestones approached the Waltons about the boundary
issue, a dispute arose regarding ownership of the Disputed Strip.

¶6 In 2019, the Freestones filed suit, asserting a single cause of
action in which they sought to quiet title to the Disputed Strip
pursuant to the doctrine of boundary by agreement. The
Freestones asserted that they and the Walton Predecessors had
“entered into an agreement” as to the location of the fence, and
claimed that they would incur “tens of thousands of dollars of
damage” if they were required to remove the fence and the parts
of their backyard improvements that involve the Disputed Strip.

¶7 During discovery, the Freestones took the deposition of
Terri, one of the Walton Predecessors. In her deposition, Terri
3

testified about putting in the sprinkler system and landscaping.
She indicated that she had no independent knowledge of exactly
where the eastern boundary of her property was, and that she
simply followed—and “agreed with”—the spray-painted
markings placed by the contractor who installed the sprinkler
system. She explained that “[t]he guy that [installed the system]
came out and spray-painted [a line] and said, ‘this is where [the
boundary line] is.’” Terri further testified that she “didn’t verify”
the accuracy of the contractor’s markings; rather, she “just let it
go.” When asked specifically if there was ever an express
agreement between the Walton Predecessors and the Freestones
“as to the location of the fence,” Terri unequivocally answered
“no.” Indeed, at no point during her deposition did Terri indicate

here, and we assume—for purposes of our analysis and without
deciding—that the fence was not installed in the correct location.
Indeed, if the fence line and the true boundary line are in fact one
and the same, the Freestones would not need to assert boundary
by agreement, because their claim of ownership of the Disputed
Strip would be supported by the record title.

3. A pseudonym.

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that she ever entered into any specific agreement to establish the
fence line as the true boundary between the properties, or even
that she ever knew that the fence had been installed in the wrong
place. To the contrary, Terri repeatedly testified that she had
merely “assumed that [the fence] was on [the] property line[]”
and that she had no independent knowledge of where the actual
property line was.

¶8 Based largely on Terri’s deposition testimony, the Waltons
filed a motion for summary judgment, asserting that the
Freestones’ boundary-by-agreement claim should be dismissed as
a matter of law because no agreement had ever been reached as to
the location of the boundary. The Freestones opposed the motion,
arguing that the fence line had been “established” as the
boundary by the Walton Predecessors, that it was the “accepted
boundary line” between the properties, and that the Walton
Predecessors had “never disputed the location of the fence” or
taken the position that the fence line did not represent the actual
property boundary.

¶9 In support of their opposition, the Freestones submitted a
sworn declaration from David Freestone. In that declaration,
David acknowledged that he had not had the property surveyed
before building the fence, but he stated that the Freestones and the
Walton Predecessors had “recognized the [fence line] as the
boundary line between the parties’ lots,” and he averred that
“[t]his realization was in place years before the fence was built,”
as evidenced by the Walton Predecessors’ installation of
sprinklers and landscaping. Indeed, he stated that, in 2012, he
“discussed with [the Walton Predecessors] building a fence
along” the landscaping line, and he asserted that the two families
“had agreed previously that the [landscaping line] was the
property boundary.” David emphasized that, when the
Freestones discussed with Terri their plan to build a fence, “it was
clear the fence would be place[d] along the boundary line that was

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Freestone v. Walton

originally established by the [Walton Predecessors] and which
had been agreed to.”

¶10 After full briefing, the district court heard argument. The
court focused its questions on whether the Walton Predecessors’
conduct constituted mere acquiescence to a boundary line rather
than an explicit agreement resolving a dispute about the location
of the boundary. The court observed that there had “been nothing
explicit” from Terri, that she “just assumed” that the contractor’s
painted markers represented the boundary line, and that “[t]hat
seems [like] an acquiescence rather than an agreement.” When
pressed on this point, the Freestones argued that they discussed
the fence with Terri, that all parties “recognize[d] the [fence line]
is the boundary line between the parties’ lots,” and that the
Walton Predecessors “did not object to the color of the fence or to
it being placed along” the landscaping line.

¶11 At the conclusion of the hearing, the court made an oral
ruling granting the Waltons’ motion for summary judgment. The
court expressed concern that the Freestones were “conflating
boundary by acquiescence with boundary by agreement,” and it
concluded that—while there was some evidence of
acquiescence—there was no evidence of an express agreement
resolving a dispute about the boundary. The court later
memorialized its oral ruling in a written order and entered
judgment in favor of the Waltons.

ISSUE AND STANDARD OF REVIEW

¶12 The Freestones now appeal, asserting that the district
court erred by granting the Waltons’ motion for summary
judgment. Specifically, the Freestones argue that a genuine issue
of material fact exists as to whether the Freestones and the Walton
Predecessors entered into an agreement to establish the fence line
as the boundary between the properties. “We review a district
court’s grant of summary judgment for correctness and afford no

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Freestone v. Walton

deference to the court’s legal conclusions.” Turley v. Childs, 2022
UT App 85, ¶ 16, 515 P.3d 942 (cleaned up).

ANALYSIS

¶13 We begin our analysis by discussing two related common-
law doctrines that each provide a pathway for litigants to quiet
title in property along lines different from those described in title
documents: boundary by agreement and boundary by
acquiescence. See Bahr v. Imus, 2011 UT 19, ¶¶ 35–56, 250 P.3d 56.
There is a “close conceptual relationship between” the two
doctrines, “both of which apply to boundary disputes and look
for acquiescence or agreement by adjoining landowners.”
Anderson v. Fautin, 2016 UT 22, ¶ 13, 379 P.3d 1186. But the
doctrines serve different purposes and have different elements,
and courts must take care not to inappropriately conflate these
two doctrines. See id. ¶¶ 8–13; see also Bahr, 2011 UT 19, ¶ 19
(noting that the theories each “fill[] a distinct niche in the law”).

¶14 For purposes of our analysis, these two boundary dispute
doctrines diverge in two key respects. First, boundary by
agreement requires a claimant to “marshal evidence of an express
parol agreement,” whereas boundary by acquiescence “addresses
those cases where there is no evidence of an express agreement.”
Anderson, 2016 UT 22, ¶ 28. In this vein, while boundary by
agreement requires an explicit agreement between the
landowners, boundary by acquiescence can be supported with
“[a]n inference of an agreement based on mere acts or omissions of
the parties.” Bahr, 2011 UT 19, ¶ 42 (emphasis added).

¶15 The second key difference relates to time: a boundary by
agreement creates an enforceable boundary “without respect to
the length of time in which the parties have embraced it,” id. ¶ 44,
whereas boundary by acquiescence requires that a boundary have
been recognized for at least twenty years, Anderson, 2016 UT 22,
¶ 31; see also Bahr, 2011 UT 19, ¶ 45 (repudiating a showing of

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some passage of time as a requirement for boundary by
agreement, and explaining that “[a] requirement of a long period
of acquiescence does not comport with the policy of repose upon
which boundary by agreement is premised because it creates
continued uncertainty even following an express agreement
between adjoining landowners regarding the location of the
boundary between their properties”). Our supreme court has
linked the time requirement of a boundary-by-acquiescence claim
to the evidentiary burden of a boundary-by-agreement claim,
explaining that a party lacking proof of an express parol
agreement “will likely be forced to rely instead on the more
restrictive doctrine of boundary by acquiescence, with its
attendant twenty-year acquiescence requirement.” Bahr, 2011 UT
19, ¶ 46. As noted already, the Freestones’ claim in this case is
grounded entirely in the boundary-by-agreement doctrine; they
freely acknowledge that they cannot meet the twenty-year
requirement of the boundary-by-acquiescence doctrine. 4

¶16 Against this background, we now analyze the Freestones’
boundary-by-agreement claim. To succeed on that claim, a party
must show (1) that there was “an agreement between adjoining
landowners,” (2) that the agreement settled “a boundary that is
uncertain or in dispute,” (3) “that injury would occur if the
boundary were not upheld,” and (4) in cases “where the doctrine
is being invoked against successors in interest,” that there has
been a “demarcation of a boundary line such that a reasonable
party would be placed on notice that the given line was being
treated as the boundary line between the properties.” Id. ¶ 41.

¶17 Of these elements, we need here analyze only the first two:
whether there was an express agreement and whether that

4. The Freestones acquired their property and had their first
interactions with the Walton Predecessors in 2008, and they
installed the fence in 2012. Twenty years have not yet elapsed
since any of those events took place.

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Freestone v. Walton

agreement served to settle a dispute or uncertainty about the
location of the true boundary. The district court’s analysis turned
largely on the first element—the presence or absence of an express
agreement between the Freestones and the Walton Predecessors.
But the facts of this case require these first two elements to be
analyzed together, 5 and our analysis leads us to the conclusion
that, to the extent that there was an agreement between the
Freestones and the Walton Predecessors, any such agreement did
not serve to resolve an uncertainty or settle a dispute about the
location of the boundary line.

¶18 “The first element of boundary by agreement requires that
there be an express agreement between adjoining landowners.”
Id. ¶ 42 (cleaned up). That is, the agreement must be “an actual,
express statement of agreement between the parties.” Id. “This
agreement may be oral, but it must be explicit.” Id. (cleaned up).
To determine whether there has been an agreement that meets the

5. The concepts described by the first two elements of boundary
by agreement—at least as our supreme court has articulated those
elements—are often difficult to analytically separate. The first
element requires the existence of an agreement, and the second
element involves an examination of the subject matter of that
agreement and requires that the agreement in question “settl[e] a
boundary that is uncertain or in dispute.” Bahr v. Imus, 2011 UT
19, ¶ 41, 250 P.3d 56. Indeed, given the close analytical
relationship between these concepts, courts in some jurisdictions
have combined them into one element. See, e.g., Ross v. DeLorenzo,
672 P.2d 1338, 1341 (Or. Ct. App. 1983) (reciting as one element
that “the uncertainty must be resolved by an agreement, express
or implied, to recognize a particular line as the boundary”);
Piotrowski v. Parks, 691 P.2d 591, 593 (Wash. Ct. App. 1984)
(reciting as one element that “the owners must arrive at an express
meeting of the minds to permanently resolve the dispute or
uncertainty by recognizing a definite and specific line as the true
and unconditional location of the boundary” (cleaned up)).

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Freestone v. Walton

requirements of the boundary-by-agreement doctrine, we rely on
established contract principles, including whether there has been
a meeting of the minds between the parties and whether the
agreement is supported by consideration. See Anderson, 2016 UT
22, ¶¶ 15, 18 (observing that boundary by agreement is rooted in
contract principles); Staker v. Ainsworth, 785 P.2d 417, 423 n.4
(Utah 1990) (noting that boundary by agreement is “premised on
a contractual theory”); see also Wood v. Bapp, 169 N.W. 518, 522
(S.D. 1918) (“Like every other contract, an agreement fixing a
boundary line must be based upon a sufficient consideration or
else it is not binding.”); Piotrowski v. Parks, 691 P.2d 591, 593
(Wash. Ct. App. 1984) (explaining that a boundary-by-agreement
claim requires “an express meeting of the minds to permanently
resolve the dispute or uncertainty by recognizing a definite and
specific line as the true and unconditional location of the
boundary” (cleaned up)); 82 Am. Jur. 3d Proof of Facts § 7 (2024)
(“Parol agreements establishing a boundary must be supported
by consideration. Where there is a bona fide dispute as to the true
location of a boundary, or its location is not definitely known, a
sufficient consideration exists for the making of an agreed line.”).

¶19 The second element of boundary by agreement goes to the
subject matter of the agreement, and it requires the proponent of
the doctrine to demonstrate that the agreement in question
“settl[ed] a boundary that is uncertain or in dispute.” Bahr, 2011
UT 19, ¶ 41. This “second element of boundary by agreement—
uncertainty or dispute about the location of a boundary—is
necessary to satisfy the statute of frauds,” at least in situations
where the contract in question isn’t written. Id. ¶ 47; see also 12
Am. Jur. 2d Boundaries § 71 (2025) (“The doctrine of an agreed
boundary line . . . rests fundamentally upon the fact that there is,
or is believed by all parties to be, an uncertainty as to the location
of the true line. The dispute must precede the parole agreement;
a dispute at the time of the litigation is irrelevant.”). “Without this
element, an oral agreement setting a boundary would effect an
impermissible transfer of the land instead of a permissible

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Freestone v. Walton

location of the existing estate.” Bahr, 2011 UT 19, ¶ 47 (cleaned up).
“This uncertainty requirement mandates that a party seeking to
rely on boundary by agreement must show that she was uncertain
of the true location of the boundary between her property and her
neighbor’s property.” Id. ¶ 48. If satisfied, the uncertainty or
dispute element of the claim will often also provide the
consideration that supports an express agreement; indeed, courts
have recognized that these two concepts are closely linked. See
Ross v. DeLorenzo, 672 P.2d 1338, 1341 (Or. Ct. App. 1983) (“The
element of resolution of uncertainty may also provide the
consideration for the agreement.” (cleaned up)); 12 Am. Jur. 2d
Boundaries § 73 (2025) (“Parol agreements establishing a boundary
must, the same as other contracts, be supported by consideration,
but the mutual concessions of the parties in order to determine a
doubt or uncertainty existing with reference to a boundary line or
terminate the dispute in regard thereto have been generally
regarded as sufficient.” (cleaned up)).

¶20 In this case, there is perhaps a question of fact about
whether the Freestones and the Walton Predecessors entered into
some sort of express agreement about the location of the fence.
Indeed, David Freestone avers that the two families “had agreed
previously that the [landscaping line] was the property boundary
between” their lots and that the fence would be built on that line.
(Emphasis added.) But even assuming—as we must at this
procedural stage—that this assertion is true, and that there was
some sort of express agreement in place, there exists no evidence
that any such agreement served to resolve any dispute or
uncertainty between the families about the true location of the
boundary line.

¶21 At the time any such “agreement” was reached, both
families (mistakenly, as it turns out) believed that the fence line
represented the true boundary between their lots. Terri’s
mistaken belief arose from the sprinkler contractor’s errant spray
paint markings, and she did not verify the accuracy of those

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Freestone v. Walton

markings. And when the Freestones moved into the
neighborhood a year or two later, they simply assumed that the
Walton Predecessors’ landscaping and sprinkler system indicated
the true boundary and built their home improvements
accordingly, without obtaining a survey of the property or
searching municipal records to verify the correct location of the
boundary. Indeed, in 2012 when the Freestones initiated
discussions with Terri about installation of the fence, neither side
raised any dispute—or even expressed any confusion—about
where the true boundary line was. Both families simply continued
to assume that the property line was the landscaping line, and any
agreement about the location of the fence was premised on that
mutual mistaken assumption.

¶22 In this situation, the Walton Predecessors had no idea that,
by entering into an agreement as to the location of the fence, they
were giving up any right to ownership of the Disputed Strip. And
by the same token, the Freestones had no idea that, by entering
into the same agreement, they were enlarging the size of their
parcel. No money or other traditional consideration changed
hands as part of this agreement. As noted already, the
consideration requirement may be met, even if no money changes
hands, if the parties have a bona fide dispute or recognized
uncertainty about the true location of the boundary line and they
mutually agree to resolve that dispute or uncertainty as part of the
agreement. See supra ¶¶ 18–19. But here, where both parties
believed the fence line to be the true boundary line, their
agreement cannot have served to resolve any actual dispute or
uncertainty about the location of the boundary. Without any
dispute or uncertainty over the property line (or any other
promise, act, or detriment), there was no bargained-for exchange
here—no one consciously gave anything in exchange for
something else. And in this situation, where there is no express
agreement to resolve any pending dispute or uncertainty about
the location of a boundary, the elements of the boundary-by-
agreement doctrine are not satisfied.

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Freestone v. Walton

¶23 Indeed, this case strikes us as a classic example of
acquiescence rather than agreement. Although David Freestone uses
the word “agreed” twice in his declaration, he does not use that
word to connote a contractual arrangement to resolve an active
dispute about the location of the boundary; instead, in context—
given the absence of any actual dispute or uncertainty about the
boundary’s location—he uses the word to mean that Terri
consented or acquiesced to the fence’s placement. Elsewhere in his
declaration, he explains that the two families “recognized” the
landscaping line as the boundary and that the Walton
Predecessors “never disputed” the location of the fence and
“never complained” about the Freestones’ installation of certain
backyard improvements. And he readily acknowledges that the
Freestones did not survey the property prior to installation of the
fence, and he does not claim that—prior to 2017—they were ever
under the impression that the true record boundary between the
properties was elsewhere. See Bahr, 2011 UT 19, ¶ 48 (stating that
“a party seeking to rely on boundary by agreement must show
that she was uncertain of the true location of the boundary
between her property and her neighbor’s property”).

¶24 This evidence may well give rise to “[a]n inference of an
agreement.” See id. ¶ 42 (emphasis added). But it does not
constitute evidence of an agreement to resolve a known boundary
dispute. And “[a]n inference of an agreement based on mere acts
or omissions of the parties is the domain of boundary by
acquiescence,” not boundary by agreement. Id. To keep the two
doctrines separate from one another and avoid improperly
conflating them, we must conclude that this case simply does not
present facts sufficient to constitute boundary by agreement. If we
were to relax the first two elements of the boundary-by-agreement
doctrine to allow these facts to fit within it, we would conflate the
two doctrines and effectively set aside the twenty-year
requirement imposed by the boundary-by-acquiescence doctrine.
And this we decline to do.

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Freestone v. Walton

CONCLUSION

¶25 In this case, while the Freestones presented evidence that
could create an inference of acquiescence, they presented no
evidence of an agreement that purported to resolve any dispute
or uncertainty about the location of a boundary. Thus, they cannot
make the showing required by the first two elements of the
boundary-by-agreement doctrine. Accordingly, the district court
did not err by entering summary judgment in favor of the
Waltons.

¶26 Affirmed. 6

6. The Waltons request an award of attorney fees pursuant to rule
33 of the Utah Rules of Appellate Procedure. We decline to grant
this request. Fees are to be awarded under this rule “only in
egregious cases, lest there be an improper chilling of the right to
appeal erroneous lower court decisions.” Marroquin v. Marroquin,
2019 UT App 38, ¶ 36, 440 P.3d 757 (cleaned up). While we
ultimately reject the Freestones’ arguments, we do not consider
this an “egregious” case worthy of sanctions.

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