The Arizona Supreme Court starts off 2024 discussing the land use doctrine of “boundary by acquiescence.”  The doctrine applies when there is 1) occupation or possession up to a defined line, 2) mutual acquiescence as to the boundary, and 3) and ten years. The Court adds an additional element requiring the actual boundary must be uncertain or disputed. Anyone claiming “boundary by acquiescence” must prove these elements by clear and convincing evidence.

The parties purchased adjoining parties. The Becks hired a landscaper, and the landscaper did not follow the actual property line but cut the line short. Years later, when the Becks remodeled their backyard they wanted to move their pavers and landscaping out to the actual property line. The Nevilles sought advantage from the earlier mistake. Litigation ensued.  Trial court ruled on summary judgment for the Becks holding the Nevilles did not meet their burden as a matter of law.

Having less confidence in the rule of law, the court of appeals held there were material disputed facts and remanded for trial. 

The Supreme Court reverses the court of appeals. The Becks keep their property as a matter of law.  After discussing the importance of property rights, the Court holds occasionally parking your car on your neighbors’ property is not occupation; the Becks never acquiesced to changing the boundary; and while more than ten years passed, the actual property line was not disputed or uncertain.  The Court then cuts up Neville’s “adverse possession” claim for similar reasons.  The Court unnecessarily includes a picture showing the disputed property, but perhaps the picture reassures hundreds of other property owners.  The Nevilles are ordered to pay the Becks’ attorney’s fees and costs.

Justice Timmer concurs but finds little reason for the Court’s referencing the Constitution, the Declaration of Independence, the Virginia Declaration, and discussing “natural rights.”  We respect her concerns, but if she feels squeamish or skeptical over the history lesson, and these sources do not reflect anchoring principles or a foundation upon which courts should draw, then reason and fully explain why. She has as much ink and paper as she needs and hundreds of articles, books, and authorities to cite.

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