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"The 2Point Way" - Acquiescence Has Many Meanings

In property boundary disputes, “Acquiescence” can have many meanings— depending both on the specific circumstances and the jurisdiction where the term is applied. State courts each have their own standards for dealing with the apparent acquiescence by adjoining landowners to a fixed line that is inconsistent with the boundary location described in the controlling documents.

In his comprehensive article published in Michigan Law Review, Vol. 56, No. 4 pg. 504 (Feb., 1958), Olin J. Browder Jr. describes acquiescence as an ‘elusive concept.’ It may be mere supporting evidence for other legal principles, but can stand on its own in many states. Acquiescence may have more than one definition, even in a single jurisdiction.

One way to study acquiescence is to consider the variables that courts consider when determining whether acquiescence to a given line is sufficient to bind owners—and subsequent purchasers—to a line that is contrary to that described in relevant deeds.


Questions relevant to the dispute may include:


- Were the two parties acquiescing to the line originally grantor and a grantee, or were they adjoining landowners with no prior relationship?

- Did one or both parties actively participate in the establishment of the agreed line, and, if so, to what extent?

- What was the duration of possession/acquiescence along the line? Is the span of time sufficient to fulfill requirements from the statute of limitations in that state?

- Is the true location of the record boundary ascertainable, and, if so, to what degree of certainty?

- Is the true location of the record boundary apparent on the ground?

- Were one or both parties aware of the actual location of the boundary line?

- Was the agreed line marked before, concurrent with, or subsequent to the execution of the deed creating the boundary line?

- What physical evidence of an apparent agreement exists along the line in question?

The legal significance of these questions varies depending on the state where the case is heard. The parameters for any decision regarding acquiescence to a boundary line will be based on common law and/or statutory law in that state. There is no known precedent from early English or Civil Law to serve as a template for U.S. courts to build on, so each state has developed its own adaptations.


“Acquiescence” is not “Doing Nothing”

Dictionary definitions of “acquiescence” include connotations of inactivity and passivity, but the courts depart from the standard textbook standards when dealing with boundary disputes. Since some demarcation—a fence, wall, hedgerow, or set iron pipes from a survey—represents the delimiters of the line acquiesced, it is inevitable that some initial action on the part of one or both neighbors established the line that later became the basis for acquiescence.

Even after the initial barrier is in place, the mere consent to the continued existence of the feature may not be sufficient to show acquiescence in the line so marked. Often, some additional evidence of agreement required.


Early Origins in New York


While the term “acquiescence” appears in opinions concerning boundary disputes circa 1790, early applications of the term tended to emphasize its subordinate role in attempts to prove prescriptive rights. Early American prescriptive easement claims routinely included a requirement that the use be proved with the apparent acquiescence of the servient owner.

Jackson v. Dysling: 2 Cai. R. 198; N.Y. (1804) is one of several benchmark New York rulings that established acquiescence as an independent title doctrine in that state. It describes a 1725 partition boundary that was re-surveyed approximately 40 years later, but the re-survey was performed without proper application of magnetic declination. Both parties took possession on opposite sides of the incorrect retracement, and continued occupation even after a second 1789 retracement revealed the discrepancy between the two earlier surveys. The court upheld the first agreed-upon line (based on the first re-survey) while rejecting a later parol agreement along the line re-established by the (correct) 1789 retracement. Although the term “acquiescence” is not used at any point in this opinion, Jackson v. Dysling is cited by several later cases regarding boundary by acquiescence.

A few years later, Jackson v. Corlaer: 11 Johns. 123; N.Y. (1814) states: “after such a lapse of time, and the repeated acquiescence on the part of the lessors, it would be unjust and inexpedient to disturb that line.” This decision is one of the first to treat acquiescence as a separate mechanism for quieting title. The New York court system remains the apparent origin of acquiescence doctrine for boundary disputes, and the principle still enjoys strong support in modern opinions in that state.


Another Name for Parol Agreement

Not all states adopted the New York standard. The Rhode Island court applies a different interpretation of acquiescence when it equates the doctrine with a “presumed parol agreement.” O’Donnell v. Penny: 17 R.I. 164 (1890) cites numerous opinions where landowners verbally agree to a location for an uncertain boundary line and immediately acquiesce to the line so marked. “And even when no express agreement is shown, the authorities are numerous that acquiescence in a boundary line, assumed or established for a period equal to that prescribed in the statute of limitations to bar an entry, is conclusive evidence of such an agreement.” Under this standard, the doctrine is inapplicable where the true record boundary location can be established.


“Kinder & Gentler” Adverse Possession

Michigan Law Review Vol. 14, No. 7 (May, 1916), pp. 596-597 posits that acquiescence evolved as a “kinder and gentler” version of adverse possession. This development is characterized as a necessary reaction to the strict requirement for the ‘mind of a thief’ (in adverse possession claims) as described in Preble v. Maine Central Railroad Company: 85 Me. 260 (1893).

States that followed the so-called ‘minority rule’ promoted by Preble would reject all adverse possession claims that were based on mistaken belief, no matter how open and notorious and enduring the use. This flawed interpretation of adverse possession doctrine (largely abandoned in the present day) required some alternative when long and peaceful occupation by both landowners to a visible boundary was proved.

As a corollary of the theory described above, the doctrine of acquiescence may be linked by judicial construction to the statutes of limitations and principles of adverse possession—but only in some states. Merriman v. Cokeley: 168 Wash. 2d 627 (2010) is a recent opinion that provides an excellent example of the relationship between acquiescence and adverse possession doctrines: “A party claiming title to land by mutual recognition and acquiescence must prove (1) that the boundary line between two properties was “certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.; (2) that the adjoining landowners, in the absence of an express boundary line agreement, manifested in good faith a mutual recognition of the designated boundary line as the true line; and (3) that mutual recognition of the boundary line continued for the period of time necessary to establish adverse possession (10 years)…These elements must be proved by clear, cogent, and convincing evidence.”

Buza v. Wojtalewicz: 48 Wis. 2d 557 (1970) supports the theory described above, but adds an additional twist—three distinct methods where a boundary line may be determined by acquiescence. The Wisconsin court observes: “…where there is a dispute as to the location of a boundary line resulting in an agreement between the owners establishing such disputed line, and a fence is located on such line so established by agreement, which is long acquiesced in by such adjoining owners, these facts are conclusive as to the location of the line, even though the period of acquiescence may fall short of twenty years… without an original dispute prior to the erection of the fence, acquiescence short of twenty years is insufficient to render the location of the fence conclusive as to the location of the true boundary line.” These two variants are differentiated by presence or lack of an original uncertainty as to the location of the boundary line.

The third mechanism described in the Wisconsin decision only applies to adjoining lots conveyed by lot number from the same grantor to two grantees. In such case, if the boundary between them is visibly marked on the ground, acquiescence may be found to exist, but may only be binding as between the original parties to the dispute. This variant is sometimes referred to as the “Common Grantor Doctrine.”

Acquiescence as an Implied Contract


At times, acquiescence has been compared with an implied contract that may be upheld in a process similar to that of estoppel. Rocher V. Williams: 183 Okla. 221 (1938) observed that while the statute of limitations applicable to adverse possession does not run where possession by mistake is followed by passive and silent acquiescence, a valid contract (implied or express) may have been created.

The Oklahoma decision Benton v. Crosser: 216 P.2d 583 (1950) discusses the role of acquiescence where (a) one or both landowners do not actively participate in the establishment of the proposed line. An alternate scenario (b) occurs when the “establishment or marking of the boundary line is the result of the actions of both parties”.

In situation (a), the Oklahoma court generally requires a time span equal to or exceeding the statute of limitations. This stance appears to be partially based upon the lack of support from any previous Oklahoma rulings.

Benton then further subdivides situation (b) based on the motivations of the parties. In some disputes, both neighbors mark the line under mistaken belief that the line marked is the true boundary. In others, a boundary known to be uncertain is marked and an agreement made to the line so marked.

This court ruled that where mistaken belief is involved and no agreement is manifest between the neighbors, the length of time of occupation is insignificant. In such cases, there is no agreement to the line, no assertion on the part of either party, and there is “no permanent establishment of it as a boundary line, either on the theory of executed parol agreement or of estoppel”.

Finally, Benton considers situations where there is a significant difficulty in determining the location of the boundary line and adjoining owners reach a parol agreement to a marked and monumented line. In this case: “the agreement long acquiesced in shall not be disturbed, although the time has not been sufficient to establish an adverse possession.” This case highlights the difficulty of selecting the appropriate standards before all relevant facts are on the table.

Acquiescence as Best Available Evidence—Rule of Retracement


In Ryan v. Stavros: 348 Mass. 251 (1964), the court equates acquiescence with one of several theories of practical location—that an acquiesced line may be the best available evidence of the boundary. Where a description in a deed is doubtful or of ambiguous, extrinsic evidence is admissible to show the construction given to the deed by the parties and their predecessors in title as manifested by their acts. This may include situations where the original deed description is in doubt due to ambiguities in the deed—or due to a present lack of physical evidence. However, relevant actions must demonstrate acquiescence to a line, fence or other demarcation of the purported boundary location. Mere acquiescence in the existence of a fence or other barrier that was constructed for some other purpose is not sufficient to establish a boundary.

Baldwin v. Brown: 16 N.Y. 359 (1857) resolves a dispute with a rationale similar to that described in the previous Massachusetts example: “The acquiescence in boundary cases affords ground not merely for an inference of fact… but for a direct legal inference as to the true boundary line. It is held to be proof of so conclusive a nature that the party is precluded from offering any evidence to the contrary. Unless the acquiescence has continued for a sufficient length of time to become thus conclusive, it is of no importance. The rule seems to have been adopted as a rule of repose, with a view to the quieting of titles.”

A similar line of reasoning found in other states holds that a line monumented by an ancient fence and acquiesced to for a long period of time actually constitutes better evidence of the true line than subsequent surveys made long after the disappearance of the original boundary monuments. Some courts suggest that a fence constructed in accordance with or subsequent to a survey may have more legal significance than a fence constructed in other circumstances.


Summary of Common Law Options


In Michigan Law Review, Vol. 56, No. 4 (Feb., 1958), Olin Browder provided a breakdown of various types of acquiescence, categorized by the characteristics of the landowners: “All this means that the term "acquiescence" may be used with at least three varying meanings. In one case it may be wholly passive, referring to a post-agreement requirement. In another case with the same facts it may refer both to the initial "agreement," express or implied, and to the passive conduct which follows. In a third case it may also refer to both active and passive conduct, but which are blended and often concurrent and perhaps inseparable…

It has been said that mutuality of acquiescence is required. But this does not mean that the parties must be equally active in its manifestation. Sometimes the claim of one owner to a line on the ground or his assent to it as a boundary will be obvious, and the problem will center on the role of his neighbor. Courts have insisted that mutuality requires certain knowledge by the latter of the former's conduct.”


Statutory Acquiescence


Georgia is one of a handful of states with statutory authority relevant to apparent acquiescence to a marked line. As seen in O.C.G.A. § 44-4-6: “General reputation in the neighborhood shall be evidence as to ancient landmarks of more than 30 years' standing. Acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line.” Due to additional common law elements not mentioned in the statute, its application has resulted in increased litigation relating to acquiescence.

Henson v. Tucker: 278 Ga. App. 859 (2006) considers the re-survey of a dividing line between two tracts. The survey was inconsistent with the boundary described in the deeds. Both landowners were present at the time the survey line was being marked, and a plat was prepared that included the notation “line of possession witnessed by Beck.” This survey was performed in 1973, but both tracts remained unimproved until 1996. An attempt to claim to the surveyed line by adverse possession failed, and the claimants then attempted to prove the validity of the surveyed line by statutory acquiescence.

Henson concedes that a disputed line may be established either by oral agreement or according to the Georgia statute cited above. However, the court concluded: “Acquiescence will not establish a divisional line, in disregard of definite boundaries fixed by deeds, and thus operate to create title to lands not embraced, by a fair construction, within the description in the deeds…The principle that a boundary line between adjoining landowners may be established by consent is not applicable in a case where one claiming to be an adjoining landowner has no independent title, but must rely on such consent to show title. To apply the principle in such a case would amount to a parol transfer of title to land.”

Iowa also has enacted a statute—based on previously existing Iowa common law—that can determine limits of title based on acquiescence, as seen in Miller v. Mills County: 111 Iowa 654 (1900). Nebraska and Colorado statutes also include sections creating authority for resolving land disputes based on acquiescence.


Conclusion

It is apparent that there are almost as many variations of acquiescence as there are courts to apply them. It is ironic that, in some states, a 50-year occupation up to a fence line may be insufficient to prove a boundary by acquiescence. Rulings in favor of the true boundary line over the long-standing fence line may be based on recognition that the line so marked was intended as a temporary solution. Other claims may fail due to the limited recognition of acquiescence in the jurisdiction where the case is heard.

Perhaps the best justification for acquiescence is found in Seidenstricker v. Holtzendorff: 214 Ark. 644 (1949), that notes: “better that ancient wrongs should be unredressed than that ancient strife should be renewed.”While the surveyor must always be on the alert for signs of possible acquiescence, we should remember that some “wrongs” must be “righted” by the judicial system rather than by the unaided surveyor.



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