Opinion
Case No. 20000027-CA.
Filed May 3, 2001. (Not For Official Publication)
Appeal from the Second District, Farmington Department, The Honorable Thomas L. Kay.
George K. Fadel, Bountiful for Appellants.
Kay M. Lewis, Salt Lake City, for Appellee.
Before Judges Greenwood, Jackson, and Davis.
MEMORANDUM DECISION
"This court will upset a jury verdict `only upon a showing that the evidence so clearly preponderates in favor of the appellant that reasonable people would not differ on the outcome of the case.'" Pratt v. Prodata, Inc., 885 P.2d 786, 788 (Utah 1994) (citation omitted). Thus, defendants have a heavy burden to overcome the jury verdict on the issue of acquiescence.
To establish a boundary by acquiescence, a claimant must show "`(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners.'" Orton v. Carter, 970 P.2d 1254, 1257 (Utah 1998) (citation omitted). The second element, mutual acquiescence, may be established by silence. See Lane v. Walker, 29 Utah 2d 119, 505 P.2d 1199, 1200 (1973) ("`Acquiescence' is more nearly synonymous with `indolence,' or `consent by silence'[.]"); see also 12 Am. Jur.2d Boundaries § 85 (1997) (stating boundary by acquiescence "may be shown by . . . [adjoining property owner's] silence). Furthermore, contrary to defendants' assertion, our decision inWilkinson Family Farm, LLC v. Babcock, 1999 UT App 366, 993 P.2d 229, did not change this settled law. See id. at ¶ 13 n. 3 (holding acquiescence in use is not the same as acquiescence in boundary).
In the present case, the jury determined from the testimony presented that defendants acquiesced in the boundary as designated by a metal post and lead plugs set in the curbs. Defendant David C. Piggott testified that he knew plaintiff claimed the boundary line ran north of the chicken coop to a nearby tree but chose to do nothing about it, other than one claimed conversation with plaintiff. This evidence is sufficient to establish acquiescence and clearly supports the jury verdict. Cf. Lane, 505 P.2d at 1200 ("`Acquiescence' [may be established through] knowledge that a . . . monument appears to be a boundary, — but that no one did anything about it for [many] years.").
The trial court properly rejected defendants' proposed instruction on what constitutes a "monument" because that instruction included a finding that was within the jury's province to decide. See Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933 (stating jury's "`prerogative is to judge the facts'" (citation omitted)). Furthermore, after the trial court ruled on defendants' proposed instruction, defendants did not object and thus failed to preserve this issue for appeal. See Utah R. Civ. P. 51 ("No party may assign as error the giving or failing to give an instruction unless he objects thereto.").
Finally, both plaintiff and his brother testified that they maintained the entire property up to the boundary line. Defendants did not object to this testimony at trial or offer rebutting evidence and, therefore, have not preserved this issue for appeal. See id. Accordingly, defendants' contention that plaintiff did not maintain all of Lot 13 is without merit.
Affirmed.
Pamela T. Greenwood, Presiding Judge.
WE CONCUR: Norman H. Jackson, Associate Presiding Judge and James Z. Davis, Judge.