Stewart Title Tips - April 2014
BOUNDARY BY ACQUIESCENCE
STEWART TITLE TIPS - APRIL 2014
BOUNDARY BY ACQUIESCENCE - Since 1890, in RI, acquiescence by a landowner to an observable boundary line, usually a fence or hedge, for ten years or more will cause the landowner to lose title to any land lying outside the boundary. This is so even though he or she has record title to that land. O'Donnell v. Penney 17 R.I. 164. Under the rule, the fact that the acquiescence was due to inadvertence, ignorance, or mistake is entirely immaterial. Lafreniere v. Sprague , 108 R.I. 43. This doctrine is invoked when boundaries are marked by physical objects, most often a fence, even though described differently in the recorded title. The party invoking the doctrine must prove the existence of the physical marker (e.g., fence) and that the landowner recognized that boundary for ten years. The element of recognition may be inferred from the silence of the landowner or their predecessor in title. Of course, when a boundary line is uncertain, the adjoining landowners may establish a division line between them by express written agreement. If the boundary agreement is executed and followed by actual possession or occupation according to the agreed line, the agreement is binding and conclusive even though it may afterwards be determined that the agreed line is not the true line. Aldrich v. Brownell, 45 R.I. 142 (1923).
The Court invoked the acquiescence rule in Doyle v. Ralph, 49 R.I. 155 (1928) (fence standing seventeen years was 6 to 12 inches on Plaintiff's land) and in DiMaio v. Ranaldi , 49 R.I. 204 (1928) (fence standing twenty years was 2.29 feet away from true boundary). They also cited the rule in DiSanto v. DeBellis, 55 R.I. 433 (1935) (fence standing eighteen years was 3 to 3 1/2 feet away from boundary). The evidentiary rule is that acquiescence to a fence for ten years results in a direct legal inference which is conclusive in nature, precluding the opposing party from offering evidence to the contrary. The parties will be precluded from claiming that the line so acquiesced is not the boundary. Paquin v. Guiorguieu, 117 R.I. 239 (1976).
In the case of Rosa v. Olivera , 115 R.I. 277 (1975) the Court thoroughly reviewed the evidence presented by three expert surveyors and adopted a dotted line drafted by a surveyor as a boundary, indicating the location of a former fence that had stood for over 70 years. Of course, a title attorney should never certify a title or issue title insurance based upon this rule, unless there has been a final adjudication as to the location of any disputed boundary. Where a title attorney becomes aware of circumstances that might give rise to one of these situations, the title policy should contain a Special Exception on Schedule B for any land that lies outside a fence line or hedge line. Whatever the merits of the rule, which was originally adopted to settle boundary disputes, a title attorney is better able to advise clients after asking the necessary questions to determine whether a given boundary dispute fits into this scenario.
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