Daily Development for Tuesday, September 4, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

BOUNDARIES; ACQUIESCENCE: Boundary be acquiescence, an independent doctrine from adverse possession, is triggered by an agreement between adjoining owners to accept a certain boundary as the true boundary, even though different from the legal boundary, and such agreement can be implied from acceptance by one neighbor of another neighbors occupancy of the area bounded by the revised boundary, even if such occupancy does not satisfy all the elements of adverse possession.

Huntington v. Riggs, 862 N.E. 2d 1263 (Ind. App. 2007)

This is a fascinating decision because the majority opinion spends most of its time trying to demonstrate that the doctrine of boundary by acquiescence is a viable modern doctrine, even though the court eventually holds, as an alternate holding that the dispute in question could have been resolved by adverse possession.  The concurrence on the other hand, agrees that the doctrine of boundary by acquiescence does find support in old authorities in Indiana and remains a valid doctrine in the state, but contends that it has been more or less fully replaced by adverse possession and contends that future courts ought to ignore it whenever possible.

In 1954, the county constructed a road that was intended to run along the boundary of the two lots in question, but for unexplained reasons, the completed road in fact ran across one owners property, leaving a triangular portion on the other side of the road.  Thereafter, the neighbor on that side of the road made some use of the triangular parcel, mowing it periodically.  But parts of it were heavily wooded and apparently not occupied at all.  Perhaps most importantly, the neighbor built a driveway on this parcel that became the neighbors access to the highway.

During the ensuing half century, the legal owners of the property paid taxes on the property, although they never went on it, and there was never any confrontation between the two sides about ownership.  Eventually, both properties passed into the hands of others. 

As indicated, the court held that the doctrine of adverse possession would have resulted in ownership passing to the neighbors who occupied it, notwithstanding that the true owners paid taxes all these years.  But the court apparently thought it important to treat this holding as a secondary holding and instead to emphasize that, even if the possessory characteristics necessary to satisfy a claim of adverse possession had not been met, the doctrine of boundary by acquiescence also applied and that its requirement of an implied agreement between the original parties was satisfied by their conduct over almost fifty years before the properties changed hands.  Subsequent owners were bound by the implied agreement whether they knew of it or not.

Comment 1: This doctrine is by no means as well established as adverse possession, and many states recognize it only when laden with so many special requirements as to render it essentially a useless concept.  The editor has seen some states emphasizing that there must be evidence of a uncertain boundary that the parties elected to resolve by recognizing an alternative line.  See, e.g. Goodman v. Menzies, LLC No. 00-004011-CH (Mich. App. 9/16/04) (unpublished) (the DIRT DD for 10/1/04) (reversing a finding of boundary by acquiescence where no evidence of uncertainty regarding boundary.)  https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=3D http://www.michbar.org/opinions/appeals/2004/091604/24520.pdf

In some of  these states, once the agreement is established, no particular period of occupancy is necessary.  In other states, if the agreement is implied, it must be followed by occupancy sufficient to satisfy the statute of limitations for adverse possession (see:Lloyd vs. Montecucco, 924 P.2d 927 (Wash. App. Div. 2, 1996) (the DIRT DD for 3/2/97) (recognizing the rule, but holding that the doctrine will not apply when no well-defined physical monument to define the claimants boundary is present which makes the doctrine virtually the same as adverse possession in those states. .)  

On the facts of this case, the court had occupancy sufficient to satisfy the adverse possession statute, but made a point of indicating that possession for such period of time would not necessarily by required to support the implied agreement that is at the heart of the doctrine.

Comment 2: Although the editor believes that a strong argument can be made that the adverse possession doctrine is still necessary to resolve many boundary disputes in the U.S., the editor sees no need for a supplemental doctrine such as this.  Modern surveying techniques and clearer understanding of boundaries ought to be enough to render the benefits of the doctrine not worth the uncertainty that it might cause. 

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