Can a moveable livestock fence establish boundary by acquiescence? Pitt v. Taron Explained

In Pitt v. Taron, the Utah Court of Appeals addressed whether a fence that moved periodically to accommodate livestock could establish boundary by acquiescence between neighboring properties. The case illustrates critical requirements for proving property boundary claims and highlights important preservation rules for appellate challenges.

Background and Facts

Alan Pitt sued his neighbors Robert Taron and the Dewsnups, claiming boundary by acquiescence and prescriptive easement rights based on a fence that allegedly existed between the properties. Pitt argued the fence had been in place for over twenty years, from the early 1950s to early 1970s. However, witness Holly Shields testified that the fence “was never a permanent fence but moved around to accommodate the sheep’s needs, even during the late sixties and early seventies.” The trial court found that evidence of use by permission from previous owners defeated Pitt’s prescriptive easement claim.

Key Legal Issues

The court examined whether Pitt satisfied the elements for boundary by acquiescence: (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least twenty years; and (4) by adjoining landowners. The court also considered whether permissive use defeated Pitt’s prescriptive easement claim.

Court’s Analysis and Holding

The Court of Appeals affirmed, finding that Pitt failed to prove continuous occupation up to a fixed boundary line. The moveable fence designed “to contain livestock” rather than “delineate relative ownership rights” could not establish boundary by acquiescence. The court emphasized that when a barrier serves purposes other than marking boundaries, “the parties can claim to the true boundary line, and there can be no boundary by acquiescence.” For the prescriptive easement claim, evidence of permissive use defeated Pitt’s claim of adverse possession.

Practice Implications

This decision reinforces that boundary by acquiescence requires a fixed, permanent boundary marker that both parties treat as the actual property line. Moveable fences serving agricultural purposes cannot satisfy this requirement. Additionally, the case demonstrates the importance of preservation of error – Pitt could not challenge the adequacy of factual findings because he failed to object below under the rule from 438 Main Street v. Easy Heat.