Don't Give Up on Acquiescence
January 2, 2013
Acquiescence can have many meanings, depending on the court in which the word is spoken. Various jurisdictions all seem to have their own way of dealing with the apparent acquiescence by adjoining landowners to a fixed line that is at variance with the boundary location as described in the documents of conveyance.
Considered by one authority to be an elusive concept at best,1 acquiescence is sometimes considered merely as supporting evidence for other legal principles. In other courts, the reverse may be true and those other legal concepts may serve as evidence of acquiescence.
One way to begin a study of acquiescence is to look at the variables courts may examine in order to determine whether acquiescence to a given line is sufficient to adequately limit ownership rights of subsequent adjoiners to the line so determined. Questions posed by the court may include:
• Were the two parties in apparent acquiescence originally a grantor and a grantee, or simply adjoining landowners with no other prior relationship?
• Did one or both parties actively participate in the establishment of the agreed upon line, and to what extent?
• How long did possession in apparent acquiescence occur along the line? Is the duration sufficient to fulfill requirements in the statute of limitations in that jurisdiction?
• Is the true location of the boundary line described in the applicable record documents ascertainable, and to what degree of certainty?
• Were one or both parties to the agreement aware of the actual location of the boundary line?
• Was the agreed upon line marked before, concurrent with, or at some time subsequent to the execution of the deed creating the boundary line?
• What other evidence of agreement exists along the line in question?
• Will the line acquiesced be binding only on the present parties, or on all future owners of the parcels affected by the acquiesced line?
It should be emphasized at the outset that the legal significance of virtually all questions included in this list will vary depending upon the jurisdiction in which the case is heard. Ultimately, prerequisites for any decision regarding acquiescence to a boundary line must be based on statutes and common law from within an individual jurisdiction.
While the term “acquiescence” appears in opinions concerning boundary disputes as early as the 1790s, the initial application of the principle more often plays a subordinate role in attempts to prove adverse possession claims. Numerous early rulings note prescriptive claims may be strengthened by the apparent acquiescence to a claim by the true owner and by the general public.
Jackson v. Dysling2 is a benchmark New York ruling for later opinions where acquiescence is discussed as an independent doctrine. In this example, a 1725 partition boundary was re-surveyed approximately 40 years later without due allowance for magnetic variation. Both parties took possession on opposite sides of the line incorrectly surveyed and continued occupation even after a 1789 re-survey revealed the discrepancy between the partition line and the earlier survey. Ironically, the court upheld the first agreed-upon line while rejecting a later parol agreement along the same boundary line subsequent to the 1789 survey. Although the term “acquiescence” is not actually used at any point in this opinion, Jackson v. Dysling is cited by several later cases regarding boundary by acquiescence.
In 1814, another New York opinion 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.”3 This would appear to be one of the first opinions to treat acquiescence as a separate mechanism for quieting title. Present day doctrine goes far beyond this simple statement, and acquiescence has now evolved into a rather confusing group of loosely related and sometimes interlocking principles.
Rhode Island adds an interesting twist when it equates acquiescence with a “presumed parol agreement.” O’Donnell v. Penny cites numerous opinions in which 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.4
A 1916 article in Michigan Law Review5 promotes the theory that assumes acquiescence originally evolved as a “kinder and gentler” version of adverse possession. This development is said to be in response to the unforgiving stance adopted by some courts on the issue of adverse possession under a mistaken belief as exemplified in the widely quoted decision Preble v. Maine Central Railroad Company.6 States that followed the premise promoted by Preble would rule adverse possession claims based upon mistaken belief (no matter how open and notorious) could not be adverse. Continuing with this line of reasoning, it soon became clear that some alternative doctrine was necessary in certain circumstances where long and peaceful occupation by both landowners to a visible boundary was in some ways analogous to adverse possession (though completely lacking in conscious intent to divest another of land).
Regardless of the validity of this theory, the doctrine of acquiescence in many states has clearly become intertwined with the statute of limitations and adverse possession doctrine. A recent opinion out of Washington State provides an excellent example of the similarities.
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.7 [Cites omitted.]
A more recent Wisconsin decision subscribes to the theory described above, but adds an additional complication: three distinct methods by which a boundary line may be determined by acquiescence. In his opinion, Hanley observes:
[W]here 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.8
These two methods are differentiated by presence or lack of an original uncertainty as to the location of the boundary line.
The third method described in the Wisconsin ruling only applies to adjoining lots conveyed by lot number from the same grantor to two grantees. In such an instance, 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.
Despite connotations of inactivity and total passivity, the courts take certain liberties with the standard dictionary definition of the word “acquiescence” when dealing with boundary disputes. Since some demarcation (such as a fence, wall, hedgerow or set iron pipes from a survey) represents the delimiters acquiesced to, it is generally true that some initial action on the part of one or both neighbors establishes the line upon which acquiescence is later based.
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 is required.
Olin Browder published an excellent summary of several definitions that may be applied to acquiescence:
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.9
Georgia is one of the few states with statutory authority for acquiescence to a marked line. “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.”10 Unfortunately, even the weight of statutory authority is not sufficient to eliminate litigation of boundary lines by acquiescence.
Henson v. Tucker is a Georgia decision that considers the re-survey of a dividing line between two tracts. The survey was admitted to be at variance 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.
While this opinion notes a boundary line that is in dispute may be established either by oral agreement or according to the Georgia statute cited above, the ruling 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.11
It should be noted that Iowa has also enacted statutes (based in part upon previously existing Iowa common law12) that can affect boundary determinations where acquiescence is a factor.
Acquiescence has also been likened to an implied contract that may be upheld in a process similar to that of estoppel. One Oklahoma opinion observed while the statute of limitations (which applies to adverse possession) does not run where possession by mistake is followed by passive and silent acquiescence, a contract (implied or express) may have been made.13
The Oklahoma decision Benton v. Crosser discusses possible acquiescence where one or both landowners do not actively participate in the establishment of the proposed line and then contrasts the first situation with a scenario where the “establishment or marking of the boundary line is the result of the actions of both parties.”
Under the first premise, 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.
While admitting that opinions differ in various jurisdictions, Benton goes on to subdivide the second category, noting previous examples where both neighbors mark the line under mistaken belief that the line marked is the true boundary and contrasting them with other situations where 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.”14 (See also “Can We Agree to Disagree?” Kline, POB, Nov. 2010.)
Massachusetts courts appear to equate acquiescence with one of the numerous theories behind practical location. Doctrine established in this jurisdiction concerning boundary disputes holds that where a description in a deed is of doubtful or of ambiguous import, 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 purely due to a present lack of physical evidence. However, these acts must amount to acquiescence of a line, fence or other demarcation of the purported boundary location. Mere acquiescence in the existence of a fence or other barrier constructed for some other purpose is not enough to establish a boundary.15
We return to early New York decisions for the basis of yet another rationale supporting acquiescence as a separate doctrine for quieting title along a disputed boundary line.
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.16
As the New York court system has been central in developing acquiescence doctrine, it will come as little surprise that the concept still enjoys strong support in modern opinions in that jurisdiction.
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. The California court has suggested a fence constructed in accordance with or subsequent to a survey may have more legal significance in acquiescence common law than a fence constructed in other circumstances.
It should be obvious by now there are almost as many definitions of acquiescence as there are courts to apply them. How ironic that a long occupation of a fence line–say, a half century–may at times be deemed insufficient evidence to prove a boundary by acquiescence. Rulings in favor of the true boundary line over the apparent fence line may be due to 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 an Arkansas opinion that noted: “better that ancient wrongs should be unredressed than that ancient strife should be renewed.”17 While the surveyor must always be on the alert for signs of possible acquiescence, we should remember to leave the righting of wrongs to the judicial system.
1. Michigan Law Review, Vol. 56, No. 4 pg. 504(Feb., 1958) Olin L. Browder, Jr.
2. Jackson v. Dysling: 2 Cai. R. 198 – N.Y. (1804)
3. Jackson v. Corlaer: 11 Johns. 123 N.Y. (1814).
4. O’Donnell v. Penny: 17 R.I. 164; 20 A. 305 (1890)
5. Vol. 14, No. 7 (May, 1916), pp. 596-597
6. Preble v. Maine Central Railroad Company: 85 Me. 260; 27 A. 149 (1893)
7. Merriman v. Cokeley: Washington State Supreme Court, NO. 83700 – 7; Filed April 8, 2010
8. Buza v. Wojtalewicz: 48 Wis. 2d 557; 180 N.W.2d 556 (1970)
9. Michigan Law Review, Vol. 56, No. 4 (Feb., 1958) Olin L. Browder, Jr.
10. O.C.G.A. § 44-4-6 (Georgia)
11. Henson v. Tucker: 278 Ga. App. 859; 630 S.E.2d 64; 2006
12. Miller v. Mills County: 111 Iowa 654; 82 N.W. 1038 (1900)
13. Rocher V. Williams: 376 80 P.2d 649 183 Okla. 221 (1938)
14. Benton v. Crosser: Ok. 49 216 P.2d 583 202 (1950)
15. Ryan v. Stavros: 348 Mass. 251; 203 N.E.2d 85 (1964)
16. Baldwin v. Brown: 16 N.Y. 359 (1857)
17. Seidenstricker v. Holtzendorff: 214 Ark. 644; 217 S.W.2d 836 (1949)
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.