FILED
 UTAH APPELLATE COURTS 

                   

FEB 16 2021 

                                                                                                                  

LANE EVERSON AND JANE EVERSON, Appellees,
v.
 CHRISTINE P. THAYER, DAVE A. THAYER, AND JOSH THAYER, Appellants. 

                   

Before Judges Hagen, Christiansen Forster, and Harris. 

                                                   

ORDER
 Case No. 20191008-CA 

                                                                                                     

Christine P. Thayer, Dave A. Thayer, and Josh Thayer appeal the district court’s final order rejecting their boundary by acquiescence claim and quieting title in favor of their neighbors, Lane Everson and Jane Everson. We have determined, on our own motion, that this matter is appropriate for disposition without an opinion. See Utah R. App. P. 31(a) (“The court may dispose of any qualified case under this rule upon its own motion before or after oral argument.”); id. R. 31(b)(1), (5). 

                   

The Thayers and the Eversons own adjacent lots in Salem, Utah. After a dispute developed over the location of the boundary between the two properties, the Eversons brought a quiet title action and other claims against the Thayers. In their complaint, the Eversons alleged that the boundary line was located on the south side of a large hedge that grew between the two properties. The Thayers filed an answer and counterclaims against the Eversons. Relevant to this appeal, the Thayers asserted a claim of boundary by acquiescence, arguing at trial that the parties and their predecessors in interest had treated the center of the hedge as the boundary between the two properties for more than twenty years. 

                   

After hearing evidence at a one-day bench trial, the district court invited both parties to submit proposed findings of fact and conclusions of law. The court ultimately entered a final order that largely adopted the Eversons’ proposed findings and conclusions. The court ruled “that the legal boundary between the properties is two feet south of the center of the hedge.” The court also found that the Thayers and their predecessors in interest had not occupied the property to the center of the hedge for a 

                                   

                                                

period of at least twenty years, and therefore rejected the Thayers’ boundary by acquiescence claim. 

                   

In its findings, the court credited the testimony of Vaud Hanks, who had owned the Everson property and planted the hedge in 1963. The court found that Hanks planted the hedge on his property two feet to the north of the legal boundary described in his 1963 deed. Both Hanks and the owners of the Thayer property at the time knew the location of the property line and were aware that the hedge had been planted two feet to the north of that line; neither of them intended for the center of the hedge to represent the boundary between the properties. When the Eversons purchased the property in 2010, Lane Everson had a discussion with Hanks about the location of the property line. Hanks confirmed that the hedge had been planted two feet to the north of the legal boundary, which was marked by a railroad tie on the east side of the property. 

                   

Until Hanks sold the Everson property in 1981, Hanks trimmed both sides of the hedge. By that time, the hedge had grown approximately one foot on each side, which left one foot between the south edge of the hedge and the property line. George Fischer acquired the Everson property in 1994. He continued to maintain both sides of the hedge and never saw his neighbors trim or otherwise maintain the hedge during the sixteen years he lived there. The Eversons acquired the property from Fischer in 2010. Until 2015, Lane Everson never saw the Thayers “maintain, trim or occupy any portion of the hedge.” 

                   

The court found that the contrary testimony of Josh Thayer was “not credible.” Josh Thayer claimed that he regularly trimmed and maintained the hedge to its center, but the court found his testimony “inconsistent with the photographs [showing that the south side of the hedge had not been trimmed for some time] and testimony of other witnesses.” The court also found that the Thayers had taken “inconsistent positions” over the course of the dispute, which demonstrated “that they were uncertain of where to claim the boundary to be.” The court concluded that the Thayers had failed to meet their burden of proof to establish a claim of boundary by acquiescence by clear and convincing evidence. 

                   

On appeal, the Thayers do not challenge the district court’s ruling that the legal boundary between the properties is two feet to the south of the center of the hedge, as described in the 1963 deed. Instead, they raise two challenges to the court’s ruling on their boundary by acquiescence claim. First, they argue that the district court’s factual findings are not entitled to deference because “it mechanically adopted [the Eversons’] proposed findings of fact” that “clearly misstate the evidence and the law.” Second, 

                                                                           

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they argue that the district court erred as a matter of law when it rejected their boundary by acquiescence claim. 

                   

As an initial matter, we defer to the district court’s findings of fact as they relate to the boundary by acquiescence ruling challenged on appeal. “On appeal from a bench trial, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 2, 70 P.3d 35 (cleaned up). “There is no indication from the record here that the trial judge failed to adequately deliberate and consider the merits of the case.” Automatic Control Prod. Corp. v. Tel-Tech, Inc., 780 P.2d 1258, 1260 (Utah 1989). As the Eversons point out, even though the Eversons submitted proposed findings of fact, the district court did not adopt those proposed findings verbatim, amended several of them, and even omitted a number of factual findings they proposed. Moreover, even when a court does adopt proposed findings verbatim, “they are nonetheless the findings of the District Court. And they must stand or fall depending on whether they are supported by the evidence.” United States v. Crescent Amusement Co., 323 U.S. 173, 185 (1944). 

                   

The Thayers have challenged only one finding of fact as unsupported by the evidence. The district court found that “[t]he current surveys conducted by both parties place the boundary as described in the legal descriptions to the south (Thayer side) of the hedge.” The Thayers argue that this finding is unsupported because the surveys were not admitted at trial. But this fact is immaterial to the boundary by acquiescence issue, which is the only ruling challenged on appeal. Even assuming that this factual finding is clearly erroneous, it had no bearing on the district court’s ruling on the boundary by acquiescence claim. The Thayers have not established clear error with respect to any of the factual findings on which the court relied to reject that claim. 

                   

Based on those findings, the district court correctly ruled as a matter of law that the Thayers had not proven their boundary by acquiescence claim. To prevail on such a claim, the Thayers had the burden of proving each of the following elements by clear and convincing evidence: 

                   

(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. 

                                                                           

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Linebaugh v. Gibson, 2020 UT App 108, ¶ 25, 471 P.3d 835 (cleaned up). The district court’s findings fully support the conclusion that neither the Thayers nor their predecessors in interest occupied the property up to the center of the hedge in a way that would have given a reasonable owner of the Everson property notice that they were using the center of the hedge as a boundary. Instead, the district court’s findings support the conclusion that, to the extent there was a visible line which the landowners treated as the boundary between the properties, that line was the hedge’s southern edge, which was consistent with the location of the legal boundary. The court expressly found that Josh Thayer’s testimony that he trimmed and maintained the hedge to its center prior to 2015 was not credible. And there was no evidence that the Thayers’ predecessors in interest took any action to occupy the property to the center of the hedge such that it would have put the owner of the Everson property on notice that they were treating the center of the hedge—rather than its southern edge—as the boundary.1 Therefore, we affirm the district court’s ruling rejecting the Thayers’ boundary by acquiescence claim. 

                   

IT IS HEREBY ORDERED that the judgment of the district court is affirmed. Dated this 16th day of February, 2021. 

                   

FOR THE COURT: 

                   

1. The Thayers also contend that the district court erroneously accepted a proposed conclusion of law that “George Fischer would be considered a non-claimant for purposes of Boundary by Acquiescence and therefore the actions of Mr. Fischer are immaterial to the consideration of Boundary by Acquiescence.” The Thayers mistakenly interpret this language as a conclusion that Fischer’s testimony was irrelevant and had been disregarded by the district court. To the contrary, the district court did rely on Fischer’s testimony in finding that the owners of the Thayer property did not maintain the hedge between 1994 and 2010. But, as a prior owner of the Everson property, Fischer’s actions in maintaining the south side of the hedge were immaterial to establishing that the Thayers or their predecessors in interest occupied the property up to a “visible line such that it would give a reasonable landowner notice that the claimant is using the line as a boundary.” Linebaugh v. Gibson, 2020 UT App 108, ¶ 25, 471 P.3d 835. 

                                                                                                     

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CERTIFICATE OF SERVICE 

                   

I hereby certify that on February 16, 2021, a true and correct copy of the foregoing ORDER was deposited in the United States mail or was sent by electronic mail to be delivered to: 

                   

MICHAEL K BLACK
 YOUNG KESTER BLACK & JUBE [email protected] 

                   

R SHANE JOHNSON
 R SHANE JOHNSON PLLC [email protected] 

                   

FOURTH DISTRICT, PROVO DEPT ATTN: DEBBIE JACOBSEN [email protected] 

                                                                                        

Case No. 20191008
 FOURTH DISTRICT, PROVO DEPT, 160401544