Beck v. Neville, No. CV-22-0134-PR (January 9, 2024) (J. Montgomery) https://www.azcourts.gov/Portals/0/OpinionFiles/Supreme/2024/CV220134PR.pdf

BOUNDARY BY ACQUIESCENE IS A RECOGNIZED CAUSE OF ACTION IN ARIZONA WHICH REQUIRES PROOF BY CLEAR & CONVINICING EVIDENCE THAT THE ACTUAL BOUNDARY IS UNCERTAIN OR DISPUTED/OCCASIONALLY PARKING A CAR PARTIALLY ON ADJOINING LANDOWNER'S PROPERTY IS INSUFFICIENT TO ESTABLISH “OPEN, NOTORIOUS, CONTINOUS, EXCLUSIVE AND HOSTILE” ELEMENT OF ADVERSE POSSESSION

 Plaintiffs and defendants own adjoining land. In 2004 plaintiffs made landscaping improvements which included the installation of brick pavers. The pavers were inside plaintiffs' property line by several feet giving the appearance that the actual property line between plaintiffs' and defendants' property was 10 feet further south than was actually the case.  This gave the further appearance that a gravel driveway existed running across that 10 feet of plaintiffs' property to defendants' home.  Thereafter defendants occasionally parked their car partially upon plaintiffs' property.

In 2019 plaintiffs wanted to install some drainage pipes which required digging up the pavers.  Plaintiffs told defendants of their intent to do this and to then lay the pavers back down along the true boundary line. Defendants objected stating you don't own that property anymore.  Plaintiffs filed a quiet title action under  A.R.S. § 12-1101, defendants counterclaimed seeking to quiet title in their favor based upon adverse possession and the doctrine of boundary by acquiescence. Cross motions for summary judgment were filed and the trial court granted plaintiffs' motion. The matter was appealed and the Arizona Court of Appeals reversed and remanded finding there were questions of fact to be decided. The Arizona Supreme Court vacated the court of appeals decision and affirmed the trial court.

First the supreme court found that the doctrine of boundary by acquiescence was a viable legal theory in Arizona, the elements historically being: “(1) occupation or possession of property up to a clearly defined line, (2) mutual acquiescence by the adjoining landowners in that line as the dividing line between their properties, and (3) continued acquiescence for a long period of time [10 years].”  The supreme court here adds a fourth element to the doctrine: in Arizona there must also be “an element of “uncertainty or a dispute as to the true boundary line.” 

Second, the supreme court found that in order to establish a claim of boundary by acquiescence, the party asserting it must prove the case by “clear and convincing” evidence. Here defendants failed to prove that there was any uncertainty or dispute between the parties as to the true boundary line.

Finally, the supreme court addressed the claim of adverse possession. “Adverse possession is the ‘actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another. A.R.S. § 12-521(A)(1).' Thus, a claim of ownership of disputed land must be open, notorious, continuous, exclusive, and hostile. Possession must also be continuous for the statutory period of ten years. § 12-526(A).”  Further, as with the doctrine of boundary by acquiescence, real property rights in America are sacrosanct from the time of our founding fathers, so these elements must be proven by “clear and convincing” evidence. Here the evidence, at best, was that defendants occasionally parked a portion of their car on the land in dispute.  This does not rise to the level of “open, notorious, continuous, exclusive and hostile” required for the taking of plaintiffs' property.