Bahr v. Imus

This opinion is subject to revision before final
publication in the Pacific Reporter.
2011 UT 19
IN T HE
SUPREME C OURT OF THE STATE OF UTAH
——————
R OB & SHERRI BAHR , individuals, and IONE SENN, an individual,
Plaintiffs and Petitioners,
v.
J IM & MELODEE IMUS , individuals,
Defendants and Respondents.
——————
No. 20090646
Filed April 1, 2011
——————
Third District Court, Salt Lake
The Honorable Paul G. Maughan
No. 040906808
——————
On Certiorari to the Utah Court of Appeals
——————
Attorneys:
Jared L. Bramwell, Steven M. Kelly, Draper, for plaintiffs
Robert J. Dale, Christian D. Austin, Salt Lake City,
for defendants
——————
J USTICE LEE, opinion of the Court:
¶1 	Rob and Sherri Bahr and Ione Senn (the “Bahrs”) filed this
suit to challenge the location of the boundary between their resi-
dential property and that of their neighbors, Jim and Melodee Im-
us. The district court entered summary judgment in favor of the
Imuses, concluding that the Bahrs were precluded from challeng-
ing the boundary established by a fence on the property under the
doctrine of boundary by estoppel. The court of appeals affirmed.
¶2 	We agree that the Imuses are entitled to summary judg-
ment, but base our decision on a ground (boundary by agreement)
not relied on below. In affirming summary judgment for the
Imuses, we clarify the metes and bounds of the three boundary
dispute doctrines identified in our case law, articulating the rela-
tionship and distinctions among these theories and refining a few
of their elements.

BAHR v. IMUS
Opinion of the Court
No. 20090646 	2
I
¶3 	The Imuses purchased a new home in a Sandy, Utah, sub-
division in 1983. At that time, their yard was not landscaped, and
no fences separated the Imuses’ backyard from that of their ad-
joining neighbors to the east and west. Soon thereafter, the Imuses
met with their neighbors on the east (the Daltons) and their
neighbors on the west (the Wymans) and proposed that they coo-
perate in fencing in their properties. The Daltons agreed to split
the cost of a fence on the boundary they shared with the Imuses.
The Wymans agreed to share in the labor to build a fence they
would share with the Imuses, but the Imuses consented to pur-
chase all the necessary materials.
¶4 	The neighbors then set out to determine the locations
where the fences would be constructed. Not knowing the actual
locations of the plat lines marking the boundaries between their
respective properties, the neighbors decided to set the fence loca-
tions based on their own calculations and use of a tape measure.
All neighbors came to mutual agreement regarding the ultimate
locations of the fences. Although the parties understood that their
measurements were inexact, each party was satisfied because
their calculations showed that each neighbor’s backyard meas-
ured eighty feet between fences, consistent with the plat. The par-
ties then worked together in constructing the fences.
¶5 	The Imuses then began extensive landscaping. In addition
to planting trees and shrubs, the Imuses installed an irrigation
system and a koi pond.
¶6 	In 1985, the Imuses’ neighbors to the west, the Wymans,
sold their home to Joe Carlisle, who continued to treat the fence
between his property and the Imuses’ property as the boundary
line. Carlisle later sold his home to Rob and Sherri Bahr in 1988.
¶7 	Although the Bahrs and Imuses apparently enjoyed a cor-
dial neighborly relationship for a number of years, a boundary
dispute eventually arose, at a time that is still in controversy be-
tween the parties. The Imuses assert that the dispute did not arise
until September 2003, more than twenty years after the initial in-
stallation of the boundary fence. The Bahrs insist that the dispute
arose some time earlier, perhaps only nineteen years after the in-
stallation of the fence.

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Opinion of the Court
3 	No. 20090646
¶8 	Although the precise timing of the dispute is in question,
the reason for the dispute is clear. The Imuses had previously
planted a Russian olive tree on the Imuses’ side of the fence that
the Bahrs disliked. The Bahrs requested that the Imuses remove
the tree. The Imuses consented, but on the condition that the
Bahrs pay for its removal. The Bahrs refused to pay for the re-
moval of the tree. An extensive dispute between the Bahrs and the
Imuses ensued, one that included multiple calls to Sandy City
municipal authorities.
¶9 	While the Bahrs were embroiled with the Imuses over the
tree, the Bahrs obtained a survey of their property, which showed
a .2-foot discrepancy between the platted boundary and the phys-
ical location of the Imus-Bahr boundary fence at the front end of
the fence that gradually expanded to a 4.7-foot discrepancy at the
back end of the fence. The Imuses subsequently sought their own
survey, which similarly revealed a discrepancy, though the Im-
uses’ survey showed a 1.12-foot discrepancy at the front end of
the fence and a 4.37-foot discrepancy at the back end.
¶10 The Bahrs ultimately brought an action seeking to quiet
title and, among other things, claiming that the Imuses were tres-
passing on the Bahrs’ property. The Imuses moved for summary
judgment, contending that the boundary as marked by the fence
had been established by acquiescence or agreement between the
parties. In the alternative, the Imuses argued that the Bahrs were
equitably estopped from contesting the boundary. The district
court granted the Imuses’ motion on the latter ground. It found
that the elements of equitable estoppel were satisfied because the
Wymans and the Imuses had made mutual representations to one
another that the line they had established was the boundary, the
Imuses had relied on these representations by landscaping the
property up to the fence line, and the Imuses would be injured if
the boundary established was not upheld.
¶11 The Bahrs appealed, and the court of appeals affirmed.
Bahr v. Imus, 2009 UT App 155, ¶ 17, 211 P.3d 987. In so doing, the
court of appeals indicated that it was giving a “‘fair degree of de-
ference’” because boundary by estoppel is a mixed question of
law and fact. Id. ¶ 5 (quoting State Dep’t of Human Servs. ex rel.
Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997)).

BAHR v. IMUS
Opinion of the Court
No. 20090646 	4
II
¶12 On certiorari to this court, the Bahrs raise a threshold chal-
lenge to the standard of review employed by the court of appeals.
Citing extensive authority, the Bahrs note that we have consistent-
ly reviewed decisions on summary judgment for correctness, ac-
cording no deference to a trial court’s analysis. Massey v. Griffiths,
2007 UT 10, ¶ 8, 152 P.3d 312; Bonham v. Morgan, 788 P.2d 497, 499
(Utah 1989).
¶13 Despite this precedent, the Imuses defend the deferential
standard applied by the court of appeals. Echoing that court’s
analysis, the Imuses contend that we should give the trial court’s
decision in this case “‘a fair degree of deference’” because the doc-
trine of equitable estoppel is a mixed question of law “‘applicable
to a wide variety of factual and legal situations.’” Bahr v. Imus,
2009 UT App 155, ¶ 5, 211 P.3d 987 (quoting State Dep’t of Human
Servs. ex rel. Parker v. Irizarry, 945 P.2d 676, 678 (Utah 1997)). In the
cases cited by the Imuses and relied on by the court of appeals,
this court has accorded “differing degrees of deference” to trial
court findings on mixed questions of fact and law “depending on
several considerations.” Irizarry, 945 P.2d at 678. In Irizarry, we
applied a deferential standard of review to a trial court’s determi-
nation that “the requirements of the law of [equitable] estoppel
ha[d] been satisfied.” Id. Because this case also raises questions of
equitable estoppel, the Imuses contend that Irizarry dictates a de-
ferential standard of review here.
¶14 We disagree. In Irizarry, we were reviewing the findings of
a trial court issued after a bench trial. Id. In that setting, we ap-
plied a deferential standard of review to the question whether the
defendant “reasonably changed his position in reliance upon [the
plaintiff’s] representations”—“a largely factual question” that was
“perilously fraught with uncertainty.” Id. at 681. Although the
evidence before the trial court on this question was “somewhat
ambiguous,” we sustained a deferential standard of review in Iri-
zarry on the ground that “the trial judge ha[d] observed ‘facts’
such as the witness’s appearance and demeanor, relevant to the
application of the law that cannot be adequately reflected in the
record available to appellate courts.” Id. at 681–82 (internal quota-
tion marks omitted).

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Opinion of the Court
5 	No. 20090646
¶15 This approach has no application to a case like this one,
which was decided on summary judgment. In this case, unlike Iri-
zarry, the trial court observed no witnesses and made no findings
to resolve disputes of fact. Indeed, summary judgment, by defini-
tion, cannot resolve genuine disputes of fact. Summary judgment
is appropriate only where “there is no genuine issue as to any ma-
terial fact and . . . the moving party is entitled to a judgment as a
matter of law.” U TAH R. C IV. P. 56(c). A trial court decides such
questions, moreover, on the basis of a cold paper record.1 Since
the trial court has no comparative advantage over the appellate
court in resolving these questions, the appellate court reviews a
summary judgment for correctness, giving no deference to the tri-
al court’s decision.2
1 See Pratt v. Mitchell Hollow Irrigation Co., 813 P.2d 1169, 1171
(Utah 1991) (noting that when reviewing a grant of summary
judgment “[w]e consider only the pleadings, depositions, admis-
sions, answers to interrogatories, and affidavits properly before
the trial judge”); see also Shields v. Eli Lilly & Co., 895 F.2d 1463,
1466 (D.C. Cir. 1990) (“Since pretrial summary judgment decisions
are rendered exclusively on the basis of a ‘paper’ record, an appel-
late court is equally well-positioned as a trial judge to assess the
evidence at issue.”).
2 See, e.g., State v. Pena, 869 P.2d 932, 936 (Utah 1994) (explaining
that the deference given to a trial court’s findings at trial rests on
the fact that the trial judge is “considered to be in the best position
to assess the credibility of witnesses and to derive a sense of the
proceeding as a whole, something an appellate court cannot hope
to garner from a cold record”); see also ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 1993) (“As
the trial court’s [summary] judgment is founded on the record
submitted and the law, an appellate court need not defer to the
trial court’s order granting summary judgment.”); Jack H. Frie-
denthal & Joshua E. Gardner, Judicial Discretion to Deny Summary
Judgment in the Era of Managerial Judging, 31 HOFSTRA L. R EV. 91,
112–13 (2002) (“The appellate court is in the same position as was
the trial court in determining whether the motion [for summary
judgment] is appropriate. Therefore, a de novo review of a district
court’s grant of summary judgment is entirely justified.” (empha-
sis omitted) (footnote omitted)).

BAHR v. IMUS
Opinion of the Court
No. 20090646 	6
¶16 The de novo standard of review of summary judgment ap-
plies regardless of the nature (fact-intensive or not) of the under-
lying law governing the parties’ rights. Thus, the “mixed” or fact-
intensive nature of the elements of equitable estoppel is irrelevant
to the standard of appellate review of summary judgment. We re-
view summary judgments for correctness, giving no deference to
the trial court’s decision (even on questions that would be deno-
minated as “mixed” if they arose on appeal after trial).
¶17 That is not to say that the nature of the underlying legal
question is irrelevant to our (or the trial court’s) consideration of
summary judgment. Fact-intensive claims are inherently less like-
ly to be resolved on summary judgment. See, e.g., Hunt v. Hurst,
785 P.2d 414, 415 (Utah 1990) (noting that “[o]rdinarily, the ques-
tion of negligence is a question of fact for the jury,” so “summary
judgment is appropriate in negligence cases only in the most clear
instances”). A case involving a plaintiff’s right to prevail on a
theory of equitable estoppel is a good example. If there are factual
disputes about the nature and extent of the plaintiff’s reasonable
reliance, the moving party may struggle to establish the propriety
of summary judgment. That does not mean that a decision on
summary judgment itself would be given deference on appeal,
however. An appellate court in such a case would make its own
decision on the correctness of summary judgment, reviewing the
same paper record that was before the trial court to decide wheth-
er there are genuine issues of material fact and whether the mov-
ing party is entitled to judgment as a matter of law.
¶18 Thus, the court of appeals in this case applied the wrong
standard of review to the extent it deferred to the district court’s
evaluation of the Imuses’ entitlement to summary judgment. We
accordingly proceed to review that decision for correctness.
III
¶19 The parties’ briefs at trial and on appeal addressed all three
boundary dispute theories articulated in our case law: boundary
by estoppel, boundary by acquiescence, and boundary by agree-
ment. Each of these theories fills a distinct niche in the law,
though their separate roles have not been completely illuminated
in our cases.
¶20 Because all three doctrines are implicated here, we take this
opportunity to delineate the nature and elements of these doc-

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Opinion of the Court
7 	No. 20090646
trines and to clarify their relationship to one another. In so doing,
we refine and revise some of the governing elements of the law in
this area. To distinguish boundary by acquiescence and boundary
by agreement, for example, we repudiate the requirement that a
boundary by agreement be established by proof of the passage of
a period of “sufficiently long acquiescence” by the parties to an
oral agreement. See Blanchard v. Smith, 255 P.2d 729, 730 (Utah
1953).
¶21 Under the three boundary dispute theories as explained
and refined below, we find that the Imuses were not entitled to
summary judgment on the basis of boundary by estoppel or
boundary by acquiescence. We affirm summary judgment for the
Imuses, however, on the alternative basis of an enforceable oral
agreement establishing a boundary by agreement on the parties’
fence line.
A. Boundary by Estoppel
¶22 Boundary by estoppel is an equitable doctrine designed to
prevent fraud and injustice by protecting innocent landowners
who reasonably rely on representations by their neighbors regard-
ing their shared boundary lines. 3 Our cases have noted the availa-
bility of this theory, but have never delineated its precise ele-
ments.4
¶23 In other contexts (outside the setting of a boundary dis-
pute), we have articulated three requirements for invocation of
3 See Tripp v. Bagley, 276 P. 912, 918 (Utah 1928) (explaining that
the doctrine of boundary by estoppel is premised on the protec-
tion of the legitimate reliance interests of innocent parties); see also
Douglass v. Rowland, 540 S.W.2d 252, 254 (Tenn. Ct. App. 1976).
4 See, e.g., Staker v. Ainsworth, 785 P.2d 417, 423 n.4 (Utah 1990)
(explaining that boundary by agreement, boundary by estoppel,
and boundary by acquiescence are distinct doctrines, but declin-
ing to set forth the elements of boundary by estoppel); Hales v.
Frakes, 600 P.2d 556, 558 (Utah 1979) (referring to boundary by es-
toppel 	merely 	to 	explain 	that 	“boundary 	by 	agreement 	falls
somewhere between adverse possession and estoppel”); Tripp, 276
P. at 918 (noting that a person may only rely on a claim of boun-
dary by estoppel if that person was ignorant of the true boun-
dary).

BAHR v. IMUS
Opinion of the Court
No. 20090646 	8
the doctrine of equitable estoppel: “(1) an admission, statement, or
act inconsistent with the claim afterwards asserted, (2) action by
the other party on the faith of such admission, statement, or act,
and (3) injury to such other party resulting from allowing the first
party to contradict or repudiate such admission, statement, or
act.” Celebrity Club, Inc. v. Utah Liquor Control Comm’n, 602 P.2d
689, 694 (Utah 1979) (internal quotation marks omitted); see also
CECO Corp. v. Concrete Specialists, Inc., 772 P.2d 967, 969–70 (Utah
1989). We now extend these elements—with some modification—
to the specific context of a boundary dispute.
¶24 First, where a party seeks to establish a property boundary
through equitable estoppel, it must establish an affirmative state-
ment by a neighboring landowner regarding the location of a
shared boundary. In a boundary dispute case, such representation
presumably will be “inconsistent with [a] claim afterwards as-
serted,” as where the party who made affirmative representations
regarding the boundary seeks to establish a different boundary in
subsequent litigation.
¶25 Requiring an affirmative representation comports with the
reliance-based rationale undergirding the doctrine of boundary by
estoppel: “When a man has been misled by the untruth pro-
pounded by another, and acted to his detriment in reliance upon
the misrepresentation, the misleading party will be estopped to
show that the true facts are contrary to those he first pro-
pounded.” See Douglass, 540 S.W.2d at 254 (internal quotation
marks omitted). At the same time, the requirement of an affirma-
tive representation regarding the true boundary safeguards the
important interests of record title owners against inadvertent re-
linquishment of their rights to properties titled in their names.
¶26 This articulation of the first element of boundary by estop-
pel consciously excludes the possibility of an estoppel that is pre-
mised on an act or omission falling short of an affirmative repre-
sentation. This limitation is necessary to preserve a distinction be-
tween boundary by estoppel (which is aimed at avoiding inequi-
ties arising from reliance on affirmative representations) and
boundary by acquiescence (which determines the impact of other
acts or omissions).

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Opinion of the Court
9 	No. 20090646
¶27 The Bahrs ask us to impose another limitation on boundary
by estoppel. Citing cases from other jurisdictions, 5 the Bahrs insist
that estoppel should be available only where the representation in
question is made by one who acts either in bad faith or with supe-
rior knowledge. While some of our sister states have adopted one
or both of these as elements of boundary by estoppel, we reject
them as incompatible with the reliance-based rationale underlying
this doctrine. In a boundary by estoppel case, a court’s attention is
properly focused on the innocent party that reasonably relied
upon a misstatement, not on the subjective intentions of the party
that made that misstatement.
¶28 Second, a party seeking to invoke the doctrine of boundary
by estoppel must show that it has engaged in some act in reason-
able reliance on the representation of the neighboring property
owner. See Tripp, 276 P. at 918. This element requires proof that
the party seeking to invoke estoppel has “change[d] his position”
on the basis of the misrepresentation of the neighboring landown-
er. Rautenberg v. Munnis, 226 A.2d 770, 772 (N.H. 1967).
¶29 For reliance to be reasonable, “the truth concerning the
facts relied upon by the person claiming the benefit of the estop-
pel” must have been unknown. Tripp, 276 P. at 918. Thus, parties
invoking boundary by estoppel must have been ignorant of the
true boundary between their property and the property of their
neighbor. As in boundary by acquiescence cases, however, a party
need not demonstrate that there was “objective uncertainty” re-
garding the true location of the boundary, see Staker, 785 P.2d at
423, though a showing of objective uncertainty would certainly
reinforce a plaintiff’s showing of reasonable reliance.
¶30 Third, the final element of boundary by estoppel is proof of
injury. See Great Plains Oil & Gas Co. v. Found. Oil Co., 153 S.W.2d
5 See, e.g., Wojahn v. Johnson, 297 N.W.2d 298, 304 (Minn. 1980)
(“Estoppel: The party whose rights are to be barred must have si-
lently looked on with knowledge of the true line while the other
party encroached thereon or subjected himself to expense which
he would not have incurred had the line been in dispute.”); Great
Plains Oil & Gas Co. v. Found. Oil Co., 153 S.W.2d 452, 459 (Tex.
1941) (explaining that conduct or statements calculated to mislead
the party claiming an estoppel are required elements).

BAHR v. IMUS
Opinion of the Court
No. 20090646 	10
452, 459 (Tex. 1941). In evaluating whether a plaintiff’s injury is
sufficient to sustain an estoppel, the courts should recall the
founding rationale of the doctrine—the protection of reasonable
reliance interests. See Tripp, 276 P. at 918. Thus, an injury is of suf-
ficient gravity to sustain an estoppel if it is such that it would
render it unfair or unreasonable to enforce the record title boun-
dary in the face of that injury. See James H. Backman, The Law of
Practical Location of Boundaries and the Need for an Adverse Possession
Remedy, 1986 BYU L. REV. 957, 968.
¶31 The 	Bahrs 	ask 	us 	to 	adopt 	additional 	limitations—
embraced in some other jurisdictions—on the nature of the injury
required to sustain an estoppel. Specifically, the Bahrs contend
that boundary by estoppel should be limited to cases involving a
“permanent improvement” in reliance on a neighboring lan-
downer’s representations.6 Because the Imuses’ landscaping, koi
pond, and irrigation system were not sufficiently “permanent” in
the Bahrs’ estimation, the Bahrs challenge the Imuses’ entitlement
to invoke boundary by estoppel.
¶32 We decline to adopt such a limitation on the injury element
of boundary by estoppel. The question of an improvement’s
“permanence” is not susceptible to principled judicial evaluation.
No 	improvement 	is 	literally 	permanent, 	as 	anything 	can 	be
moved or altered with a sufficient outlay of resources. Thus, when
courts speak of an improvement as “permanent,” they are effec-
tively concluding that estoppel is appropriate in light of the subs-
tantiality of the plaintiff’s injury. Instead of condoning an arbi-
trary evaluation of the question of permanence, we direct the
courts of this state to inquire directly into the substantiality of the
claimant’s injury.
¶33 To 	summarize, 	to 	successfully 	invoke 	the 	doctrine 	of
boundary by estoppel, a party must demonstrate: (1) that the
record title owner or her predecessor in interest made an affirma-
tive misstatement that a given line was the true boundary be-
tween the neighbors’ properties, (2) that the innocent party took
6 See, e.g., Kincaid v. Morgan, 425 S.E.2d 128, 133 (W. Va. 1992)
(holding that a boundary by estoppel claim requires “permanent
improvements” (internal quotation marks omitted)); Pickett v. Nel-
son, 37 N.W. 836, 838 (Wis. 1888) (requiring “permanent im-
provements” in order to sustain a boundary by estoppel claim).

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Opinion of the Court
11 	No. 20090646
affirmative action in reasonable reliance on this misstatement, and
(3) because of this affirmative action the innocent party would
suffer sufficiently substantial injury that it would now be unfair or
unreasonable to enforce the record title boundary.
¶34 Applying these elements to this case, we find that the Im-
uses’ estoppel claim fails on the threshold first element. In this
case, there was no misrepresentation regarding the true location
of the boundary by either the Bahrs or their predecessors in inter-
est. In fact, the record shows that the Bahrs’ predecessors (the
Wymans and Joe Carlisle) acknowledged that they did not know
the true location of the boundary between their properties. Rather,
there was a mutual agreement that the boundary would be lo-
cated in the spot where the fence dividing the Bahrs’ and the Im-
uses’ property currently stands. Where (as here) there is mutual
uncertainty regarding the true location of a dividing boundary
between adjoining properties, there is no representation and thus
no basis for a judgment of boundary by estoppel.
B. Boundary by Acquiescence
¶35 The doctrine of boundary by acquiescence is rooted in poli-
cy considerations of “avoiding litigation and promoting stability
in landownership.” Staker v. Ainsworth, 785 P.2d 417, 423 (Utah
1990). It “derives from [the] realization, ancient in our law, that
peace and good order of society [are] best served by leaving at
rest possible disputes over long established boundaries.” Id. (in-
ternal quotation marks omitted). A successful invocation of boun-
dary by acquiescence requires a showing of the following four
elements: “(1) occupation up to a visible line marked by monu-
ments, fences, or buildings, (2) mutual acquiescence in the line as
a boundary, (3) for a long period of time, (4) by adjoining lan-
downers.”7 Id. at 420 (internal quotation marks omitted).
¶36 The first element may be satisfied where land up to the vis-
ible, purported boundary line is farmed, occupied by homes or
7 We once required a fifth element—“objective uncertainty” re-
garding the true boundary line. We rejected this element in Staker
v. Ainsworth, however, noting that the element had made “boun-
dary by acquiescence less practical” and in fact seemed to “in-
crease litigation over boundaries rather than decrease it.” See id. at
423.

BAHR v. IMUS
Opinion of the Court
No. 20090646 	12
other structures, improved, irrigated, used to raise livestock, or
put to similar use. See id. In evaluating whether this element is sa-
tisfied, 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.
¶37 The second element is satisfied where neighboring owners
“recognize and treat an observable line, such as a fence, as the
boundary dividing the owner’s property from the adjacent lan-
downer’s property.” Ault v. Holden, 2002 UT 33, ¶ 19, 44 P.3d 781.
This element is met where neighbors do not “behave[] in a fashion
inconsistent with the belief” that a given line is the boundary be-
tween their properties. Staker, 785 P.2d at 420. Failure by the
record title owner to “suggest or imply” that the dividing line be-
tween the properties is “not in the proper location” suggests ac-
quiescence. Judd Family Ltd. P’ship v. Hutchings, 797 P.2d 1088,
1090 (Utah 1990). Nonacquiescence in a boundary would be sig-
naled where, for example, a landowner notifies the adjoining lan-
downer of her disagreement over the boundary, or takes action
inconsistent with recognition of a given line as the boundary, such
as tearing “down significant portions of [a] fence and, without ob-
jection by [the adjoining landowner], proceed[ing] to plant trees
and shrubs, store firewood, and construct a chain link fence in a
different location.” See Staker, 785 P.2d at 421.
¶38 To satisfy the third element, an unbroken period of no less
than twenty years must pass during which each of the other ele-
ments is continuously met.8 See id. at 420; see also Parsons v. Ander-
son, 690 P.2d 535, 539 (Utah 1984) (explaining that fifteen years of
mutual acquiescence was insufficient). To satisfy the fourth ele-
ment, “the parcels involved” must be “contiguous.” Staker, 785
P.2d at 420.
8 In prior cases, this court has maintained that “under unusual
circumstances . . . less than twenty years” of mutual acquiescence
may “be sufficient to establish boundary by acquiescence.” Id. at
420. But we have never identified any such “unusual circums-
tances.” And the parties have not alleged, and we are not aware
of, any unusual circumstances in this case that would permit us to
lessen the “long period of time” required by our case law.

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13 	No. 20090646
¶39 The Imuses are not entitled to summary judgment under
this theory because there is factual uncertainty about when the
Bahr-Imus dispute arose. In light of the genuine issue of material
fact as to whether there was a full, twenty-year period of acquies-
cence in the location of the boundary line, the Imuses are not en-
titled to judgment as a matter of law under this doctrine.
C. Boundary by Agreement
¶40 Boundary by agreement is “predicated on a principle of re-
pose [and is] designed to set at rest boundaries commonly the
subject of strife.” Blanchard v. Smith, 255 P.2d 729, 730 (Utah 1953).
We have previously clarified the requirements of this doctrine:
“[W]hen the location of the true boundary line between two ad-
joining tracts of land is unknown, uncertain or in dispute, the
owners thereof may, by parol agreement, establish the boundary
line” and, acting in reliance on their agreement, “thereby irrevoc-
ably bind themselves.” Hummel v. Young, 265 P.2d 410, 411 (Utah
1953); see also Tripp v. Bagley, 276 P. 912, 916 (Utah 1928). Through
sufficient demarcation of the agreed-upon boundary, parties may
also bind their successors in interest. Brown v. Milliner, 232 P.2d
202, 207 (Utah 1951).
¶41 Thus, the required elements of boundary by agreement are:
(1) an agreement between adjoining landowners, (2) settling a
boundary that is uncertain or in dispute, (3) a showing that injury
would occur if the boundary were not upheld, and (4) where the
doctrine is being invoked against successors in interest, demarca-
tion 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. See Hummel, 265 P.2d at
411; Brown, 232 P.2d at 207; Tripp, 276 P. at 916.
¶42 The first element of boundary by agreement requires that
there be an “express agreement” between adjoining landowners.
Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990). This agreement
may be oral, see Tripp, 276 P. at 916, but it must be explicit. An in-
ference of an agreement based on mere acts or omissions of the
parties is the domain of boundary by acquiescence. Boundary by
agreement requires an actual, express statement of agreement be-
tween the parties.
¶43 An oral agreement “between adjoining owners as to the lo-
cation of a boundary line” does not violate the statute of frauds,

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Opinion of the Court
No. 20090646 	14
“provided the agreement is followed by actual . . . possession by
each of the owners up to the line so agreed upon, and provided
further, that the proper location of the line is uncertain or in dis-
pute.” Id. (internal quotation marks omitted). “[I]f the location of
the true boundary is not known to the adjoining owners, a parol
agreement between them fixing its location is not regarded as
transferring an interest in land but merely determining the loca-
tion of existing estates.”9 Brown, 232 P.2d at 207. This exception to
the statute of frauds has “long been recognized” by the courts of
this state, Hummel, 265 P.2d at 411, and we reaffirm it here.
¶44 In our prior cases, we have suggested that boundary by
agreement also requires a showing of a passage of a long period of
time. See Blanchard, 255 P.2d at 730 (“We repeatedly have held that
neighbors, by oral agreement[,] may establish a common boun-
dary which, after sufficiently long acquiescence, cannot be dises-
tablished.”). We now repudiate that requirement. It has no place
in a doctrine that turns on a showing of an express agreement.
Once such agreement is proven, it may form the basis for an en-
forceable boundary—without respect to the length of time in
which the parties have embraced it.10
¶45 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 lan-
downers regarding the location of the boundary between their
9 Many other jurisdictions have long used the same rationale to
justify the doctrine of boundary by agreement. See, e.g., Hoyer v.
Edwards, 32 S.W.2d 812, 814 (Ark. 1930); Clapp v. Churchill, 130 P.
1061, 1063 (Cal. 1913); Moran v. Choate, 69 S.W.2d 994, 995–96 (Ky.
1934); Hanlon v. Ten Hove, 209 N.W. 169, 170 (Mich. 1926); Engle v.
Beatty, 180 N.E. 269, 270–71 (Ohio Ct. App. 1931); Ferrill v. Bryson,
37 S.W.2d 841, 841–42 (Tex. Civ. App. 1931). Modern cases con-
tinue to rely on the same rationale. See, e.g., Goodman v. Lothrop,
151 P.3d 818, 823 (Idaho 2007); Hartzler v. Uftring, 450 N.E.2d 1208,
1210 (Ill. App. Ct. 1983).
10 Accord Collins v. Burchfield, 110 S.E.2d 368, 369 (Ga. 1959) (ex-
plaining that an oral agreement may establish a boundary line
without any mandatory passage of time).

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15 	No. 20090646
properties. Consideration of the temporal period of the parties’
acquiescence should be limited to a claim of boundary by acquies-
cence.
¶46 Although an oral agreement is sufficient to sustain a boun-
dary by agreement, reliance upon such an agreement may be in-
advisable because “sufficient proof of an [oral] agreement is often
difficult to come by.” Staker, 785 P.2d at 423. Problems of proof
suggest that the “doctrine of boundary by agreement is not often
invoked” successfully. Id. A party lacking the requisite proof will
likely be forced to rely instead on the more restrictive doctrine of
boundary by acquiescence, with its attendant twenty-year ac-
quiescence requirement.
¶47 The 	second 	element 	of 	boundary 	by 	agreement—
uncertainty or dispute about the location of a boundary—is neces-
sary to satisfy the statute of frauds. Without this element, an oral
agreement setting a boundary would effect an impermissible
“transfer of the land” instead of a permissible “location of the ex-
isting estate.” Tripp, 276 P. at 918 (internal quotation marks omit-
ted); see also Brown, 232 P.2d at 207.
¶48 This uncertainty requirement mandates that a party seek-
ing to rely on boundary by agreement must show that she was
uncertain of the true location of the boundary between her prop-
erty and her neighbor’s property. Again, however, “objective un-
certainty” is not required. See Staker, 785 P.2d at 423. 11 Subjective
uncertainty is sufficient. A requirement of objective uncertainty
would undermine the legitimate policy interests undergirding the
doctrine of boundary by agreement by restricting its potential use
to such a high degree that the doctrine would lose its utility.
¶49 The third element of boundary by agreement—injury that
would result if a boundary agreement were not upheld because of
action taken in reliance on that agreement—helps ensure that the
important interests of record title holders are not unnecessarily
11 Accord Sobol v. Gulinson, 28 P.2d 810, 811 (Colo. 1933) (“The
fact that the boundary line could have been ascertained by having
a survey made does not . . . prevent there being an uncertainty,
within the meaning of the rule. To bring a case within the rule it is
not necessary that the true line should be absolutely unascertaina-
ble.”).

BAHR v. IMUS
Opinion of the Court
No. 20090646 	16
undermined. Parties who actually enter into an agreement about
the location of an uncertain or disputed boundary are likely to
take some action to execute their agreement. Such action might
include expending resources to assert ownership of the land up to
the agreed-upon line, building fences, or cultivating or controlling
the land up to the boundary. See Tripp, 276 P. at 916; Callaway v.
Armour, 60 S.E.2d 367, 369 (Ga. 1950); Brock v. Muse, 22 S.W.2d
1034, 1035 (Ky. 1929); Hanlon v. Ten Hove, 209 N.W. 169, 170 (Mich.
1926); Eidman v. Goldsmith, 941 P.2d 1045, 1048 (Or. Ct. App. 1997);
Thompson v. Jamison, 699 S.W.2d 687, 688 (Tex. App. 1985).
¶50 If a party fails to take any action following an agreement,
no injury will result from a court declining to enforce the agree-
ment. See Clear Fork Coal Co. v. Anchor Coal Co., 161 S.E. 229, 233–34
(W. Va. 1931) (noting that the record title owner could still claim
the record title boundary line where the party seeking to rely
upon boundary by agreement had only marked the agreed boun-
dary line on a mine map because such an agreement had to “be
carried into execution by the parties by full actual possession of
the line”). Therefore, claims of boundary by agreement will suc-
ceed only where a party has placed enough reliance on the
agreement that it would now be unjust not to enforce it.
¶51 The fourth element of boundary by agreement—sufficient
demarcation of the boundary line—is operative only in cases in-
volving successors in interest to the parties to the original boun-
dary agreement. This requirement is premised upon general con-
siderations of equity and fairness. While it is fair and equitable to
bind the original parties to a boundary agreement on the basis of
their agreement, it would be unfair and inequitable to bind their
successors in interest in the absence of objective indicia that
would place such third parties on notice regarding the boundary
agreed upon. This requirement is satisfied where the objective in-
dicia suggesting the existence of a boundary line would place a
reasonable party on notice that the line was being treated as the
boundary line between the properties. See McCabe v. Moore, 38
S.W.2d 641, 643 (Tex. Civ. App. 1931).
¶52 Though the fourth element will often be satisfied where the
third element is satisfied, the two elements are not always coexis-
tent. Whereas the third element focuses on actions taken by an
original party to a boundary agreement, the fourth element con-
siders whether the physical indicia of those actions would be suf-

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Opinion of the Court
17 	No. 20090646
ficiently apparent to a third party. Thus, the elements focus on
distinct actors.
¶53 We find that the Imuses are entitled to summary judgment
under the doctrine of boundary by agreement. The first element is
satisfied because there was an agreement between the Imuses and
the Bahrs’ predecessors in interest, the Wymans, regarding the lo-
cation of the boundary that would thereafter separate their adjoin-
ing properties. Affidavits from the Wymans and Imuses corrobo-
rate the existence of this agreement, which was an oral one.
¶54 The second element—uncertainty or dispute about the lo-
cation of the boundary—is also satisfied. The record does not es-
tablish objective uncertainty at the time the Imuses and the Bahrs’
predecessors in interest entered into their boundary agreement,
since their properties were located in a platted subdivision and a
survey could have revealed the true location of the boundary. But
we have rejected the need for objective uncertainty. All that is re-
quired is subjective uncertainty regarding the location of the line.
In this case, the record demonstrates that neither the Imuses nor
the Wymans knew the location of the boundary line between their
properties.
¶55 The third element—a showing of sufficient action in re-
liance on the boundary agreement that it would be unjust to not
uphold that agreement—is also fulfilled. The Imuses acted in re-
liance on their agreement with the Bahrs’ predecessors in interest,
the Wymans, by constructing a fence on the agreed-upon boun-
dary line, landscaping, and installing a koi pond and irrigation
system. Given the significant efforts expended by the Imuses as a
result of their agreement with the Wymans, declining now to en-
force the agreement would injure the Imuses unjustly.
¶56 The fourth element of boundary by agreement—sufficient
demarcation of the boundary line—must be met in this case be-
cause the Bahrs are successors in interest to the Wymans, the orig-
inal party to the boundary agreement with the Imuses. We hold
that this element is satisfied because the fence separating the
Bahrs’ and Imuses’ properties would have placed a reasonable
party on notice that the line established by the Wyman-Imus
boundary agreement was being used as the border between the
properties. All four elements of boundary by agreement are ac-
cordingly satisfied under the undisputed facts of this case, and the

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Opinion of the Court
No. 20090646 	18
Imuses were entitled to judgment as a matter of law under this
doctrine.
IV
¶57 Having found that all the elements of boundary by agree-
ment are satisfied, we affirm the judgment of the court of appeals
on the alternative ground of boundary by agreement. Doing so
gives effect to the policies that underlie boundary by agreement
through “set[ting] at rest” this boundary line dispute that has
been the “subject of [much] strife” between the Bahrs and Imuses.
Blanchard v. Smith, 255 P.2d 729, 730 (Utah 1953).
——————
¶58 Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Lee’s opi-
nion.