Huntington v. Riggs

FRIEDLANDER, Judge,

concurring.

I agree with the majority that summary judgment in favor of the Riggses should be reversed and summary judgment should be entered in favor of Huntington. I write separately to stress the limited and specific applicability of the concept of title by acquiescence, and to underscore the relationship, or lack thereof, of that doctrine to the law of adverse possession. Reduced to its essence, the point I wish to emphasize is that what we are calling “title by acquiescence” applies only in a very narrow set of circumstances, and does not represent an expansion of the doctrine of adverse possession as an alternate means by which one may acquire ownership over property without giving consideration. It is entirely distinct from the doctrine of adverse possession.

According to the lead opinion, “title by acquiescence” is an established “theory of acquiring ownership over disputed land that was especially popular during the turn of the century.” Op. at 1267. My research indicates that the concept developed in Indiana in the mid-nineteenth century and was especially in vogue in the latter part of that century. Wingler v. Simpson, 93 Ind. 201 (1884) is the oldest case cited in the lead opinion that mentioned title by acquiescence. Therefore, it is a good place to start tracing the roots of that concept. In Wingler , a dispute developed between adjoining property owners about the location of a property line with respect to a common boundary. At least forty years before suit was filed, the parties’ predecessesors in interest had established a lane on what they believed was the property line. The original confusion as to the actual location of the property line was due in large part to the fact that the line *1272 was “not one that was established by the congressional surveys, but [was] a subdivision line north and south through the east half of a quarter section.” Id. at 201 . Moreover, the description of the conveyance of land that created the boundary was fairly imprecise by today’s standards, utilizing landmarks that might change or disappear over time, viz.,

A certain piece, tract or parcel of land, situate, lying and being in the court of Washington and State of Indiana, and known and described as being part of the east half of the northwest quarter of section seven in township one north, of range four east, in the district of lands offered for sale at Jeffersonville; beginning at the northeast corner of the northwest quarter of section seven in township one north, of range four east, then running south along a marked line to the open line, it is supposed to be about one hundred and sixty rods, thence west with the open line to God-frey Ratts’ corner about fifty rods, then north along a marked line (this is the line in dispute) to Reachart Wilson’s corner, near said Viles’ spring, thence northeastward to the beginning, the same being forty acres more or less.

Id. at 201 .

A dispute arose some years later between their successors in interest about the location of the boundary and, as a result, a surveyor was hired. His survey indicated that the true line was located west of the lane. The eastern-most landowner sought a judicial determination that his property extended to the surveyed boundary line, whereas the western-most owner claimed the placement of the lane, and the subsequent long period of using the land consistent with that placement, established the lane as the true boundary.

The Indiana Supreme Court agreed with the latter contention. It began its analysis by invoking terms used in adverse possession cases (i.e., “[t]he admitted evidence complained of is testimony tending to prove that the appellee had held open, notorious and uninterrupted possession, under color and claim of title, to the land in controversy for more than twenty years”, id.), but, ultimately affirmed the trial court on other grounds. The court ruled that the parties’ actions proved that the original establishment of the boundary accurately reflected the intent of the parties in completing the transfer of property. In other words, the establishment and use of the lane for more than twenty years was proof not only of what they originally believed, but also of what they intended, viz.,

Parol evidence is admissible to prove the former existence, identity and location of ancient monuments since removed, such as marked trees and stones, indicative of the location of lines and corners; and we see no reason why the acts of the interested parties, contemporaneous with the alleged existence of the monuments, as tending to prove their existence, should not be also admissible in evidence. If the possession and improvement up to a recognized line for twenty years should not be held conclusive upon the parties, they certainly would have a tendency to prove an implied agreement that should be acquiesced in after that time, or that that was the true line, and would in either event be admissible in evidence, and should be considered by the court or jury in determining whether the survey was correct.

Id. Thus, Wingler did not establish a new doctrine that would stand shoulder-to-shoulder with adverse possession as an alternate principle by which real property that is properly titled in one party may pass to another party merely through the latter party’s actions. Rather, it merely established that if parties to a land trans *1273 fer agree that a boundary is in a certain place and both parties use the land consistent with that agreement for a long enough period of time, they cannot later deny the existence of the agreed-upon boundary in lieu of a more favorable placement (from the complaining party’s perspective).

Perhaps the best indication of the true nature and application of what we are calling the doctrine of acquiescence is to be found in the oldest Indiana decision I can find on the subject, Ball v. Cox, 7 Ind. 453 (1856). In that case, a dispute arose between two adjoining landowners about the location of their mutual property line. I refer the reader to the following diagram in explaining the facts.

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Ball had owned his property since approximately 1830, when he and Cox’s predecessors in interest purported to equally divide Lots 43 and 44, which originally were divided by an east-west line (represented by dotted line 0 in the diagram), but in the instant conveyance those two lots were, or at least were described as being, bisected by a line running north and south (see dotted line P). As a result, Ball owned the eastern halves of Lots 43 and 44, and Cox’s predecessors owned the western halves. Sometime around 1832, Cox’s predecessors built a brick building whose eastern wall extended approximately four feet east across line P. In addition, the predecessors built fences that extended north and south of the east wall of the building, thereby spanning the entire property (represented in the diagram by solid line N). “Ball himself erected a brick building on the east half of lot forty-four, ... placing his west wall close up to the east wall of that erected by the grantors of Cox.” Id. at 453 . This was the situation in existence at the time Cox purchased the property from the predecessors, which occurred sometime before 1845.

In 1845, the west end of Cox’s building burned. When Cox later began to clear away the debris with a view to rebuilding, Ball sent notice, dated April 15, 1850, that he would engage the services of the county surveyor to “ascertain, establish and perpetuate” the boundary line between them. Id. The survey showed that the fences and east wall of Cox’s building actually extended approximately four feet across the mid-line of the two properties (line P). “In April 1850, then, Ball, for the first time, set up a claim to the land i[n] dispute.” Id. The land in dispute was the roughly four-foot strip depicted as “D” in the diagram. Ball subsequently filed a lawsuit seeking a ruling that he was the owner of *1274 the disputed strip of land. A jury ruled against him and he appealed to the Supreme Court.

The underlying question before the Court was a simple one: which was the boundary between Cox’s and Ball’s properties — line P, which was the boundary set forth in the legal description of the original conveyance, or line N, which represented the boundary that had, since the beginning, governed the parties’ actions and use of their respective properties? Ultimately, the court reversed the jury verdict in favor of Cox, but did so on grounds that the jury was erroneously instructed that the period of acquiescence is eighteen years:

Upon a careful examination of the case, we can not but regard the weight of authority, and the better reason, with that class of decisions which hold, as a general rule, that twenty years’ acquiescence is necessary to support an implied agreement in a boundary variant from that clearly expressed in the title deeds.

Id. The court thereby established the twenty-year period necessary to regard the parties’ actions and behavior with respect to the land as establishing a boundary line that differs from the one appearing on the conveyance deed. The Court explained, “It would be clearly against the policy both of the statute of frauds and the statute of limitations, to allow a mere intruder, without any claim or color of title, to acquire rights on easier terms than those who hold under an adverse possession.” Id. The import of this case is that it explains the theory underpinning the determination that a variant boundary established by agreement, as reflected in actions, trumps legal descriptions contained in deeds. That theory is estoppel, i.e., “nothing short of twenty years’ acquiescence will estop the real owner” from claiming the legal description establishes the true boundary. Id. (emphasis supplied).

This brings me to the reason for writing separately. I wish to emphasize my view that acquiescence is not a separate theory for acquiring ownership of another person’s real property not by providing compensation, but instead by openly using the land as if her or she was the true owner. It does not stand with the doctrine of adverse possession as an alternate theory to be applied in the same circumstances as adverse possession. Rather, acquiescence applies only when a specific set of circumstances exists — circumstances in which adverse possession does not apply. That set of circumstances is this: Two adjoining property owners (1) share a good-faith belief concerning the location of the common boundary line that separates their properties and, (2) although the agreed-upon location is not in fact the actual boundary, (3) use their properties as if that boundary was the actual boundary (4) for a period of at least twenty years. It is the original agreement between the adjoining owners that takes this and all other “acquiescence” cases out of the realm of adverse possession.

The doctrine of acquiescence has lain largely dormant in real estate litigation since the end of the nineteenth century, and understandably so, given not only the very narrow set of circumstances in which the doctrine may be invoked, but also the continuing evolution of land surveying, legal descriptions of property, and recording real estate transactions. It is my hope that these comments will prolong that slumber.