Rarely does a person agree or consent to lose part of their land; however, such can happen in cases where a fence between neighbors turns out to not be on the legal boundary line.

The norm is that a fence between neighbors is erected on the legal boundary line between the two adjacent properties. But sometimes landowners have a mistaken belief that the fence marks the legal boundary line between two properties when it actually does not. Other times the adjacent landowners agree to treat an existing fence not on the legal boundary line as such.

No matter the circumstances, a fence that is believed to mark the legal boundary line and turns out not to usually leads to a dispute at some point. How does the law generally treat these instances where an individual is acquiescent to a boundary fence not being on the legal boundary line?

Enter the Doctrine of Title by Acquiescence. Essentially, this doctrine determines the legal boundary line between two properties and overrules the boundary listed in the deeds. If the law of acquiescence applies, one property owner loses title to some amount of land and the other property owner gains it.

Being “acquiescent” means to “accept,” “agree,” or “consent.” So, the Doctrine applies to situations where parties accept or agree that a fence not on the legal boundary line serves as the legal boundary line. This is much different than the Doctrine of Adverse Possession, in which land can be gained or lost without any agreement or consent.

Before exploring the Doctrine in more detail, some general norms in farm fencing should be discussed. When many of the states were settled, neighbors built fences that may or may not have been on the exact boundary line. Often, surveys with rods and chains were not always the most accurate.

In addition, building a fence exactly on the boundary line may not always be feasible. There could be a swamp, trees, rocks, or the like that are just too darn difficult to try to fence through – so, the fence would be erected where it was most convenient.

Also, in many instances, over time trees grow up along the fence. When it comes time to replace the fence, the landowner needs to decide to remove the trees or move the fence inward on his/her property so as to avoid the time and expense of removing the trees. (Having had the joy of trimming fence rows over my lifetime, I can appreciate simply moving the new fence inward.)

Whatever the case may be, in more cases than one would expect, the old woven wire fence between you and your neighbor may not actually be on the boundary line.

With the advent of GPS, it is easy to determine the boundary line down to mere inches. It is more common to now see a modern survey determine that the old woven wire fence is several feet, sometimes several yards, off of the surveyed boundary line. Now what?

Sure enough, the neighbor who has lost ground due to the fence not being on the boundary line wants his/her lost land back. In most cases, the neighbor who gained ground is not keen on “losing” ground, especially if he/she has been farming, grazing cattle, or otherwise up to the fence for a long time. And in some cases, the prior adjoining neighbors decades or a century ago actually agreed that the fence that was not on the legal boundary line was the legal boundary line.

In these instances, the Doctrine of Title by Acquiescence serves to settle ownership. The requirements of the Doctrine vary from state to state. In Indiana, there generally needs to have been some agreement of the adjacent landowners at some point in the history of the ownership.

The Indiana Court of Appeals, in Freiburger vs. Fry (1982) stated that a fence line agreement is not only binding on those parties who originally agree, but also on future owners so long as there was no fraud present in the making of the agreement. The Court said the fence line agreement need not be express and may be inferred from the parties' actions, but there must be evidence of some agreement as to the boundary line.

The Court concluded that use and improvement of the land up to the alleged boundary line may be sufficient to satisfy the requirement of an agreement if the adjoining landowner acquiesces. So, the Freiburger Court established that looking at the use of the land by the parties on either side of the fence may be enough to show that the fence was either agreed upon or had been treated as the legal boundary line.

This makes sense, as often the original parties making the agreement have died.

In 2007, the Doctrine was revisited by the Court of Appeals. Judge Friedlander provided a great in-depth analysis in Huntington vs. Riggs where he traced the doctrine back to an Indiana Supreme Court case from 1884 that was the oldest cited on the subject.

In short, the Huntington Court held that there need to be two adjoining property owners that: share a good-faith belief concerning the location of the common boundary line that separates their properties; and although the agreed-upon location is not in fact the actual boundary; use their properties as if that boundary was the actual boundary; for a period of at least 20 years.

In a recent court case out of Ohio, Golubski vs. US Plastic (2015), the Court of Appeals noted the Doctrine “rests on the practical reality that oftentimes, the true boundary line location is uncertain and neighbors may themselves establish boundaries.”

The Court stated the Doctrine applied when: the adjoining landowners treat a specific line as the boundary; and the line is so treated for a period of years, most often the period required for adverse possession. However, it appears the person invoking the Doctrine must show that a new purchaser of the adjoining land knew of the agreement between the prior owners, that the fence served as the legal boundary line.

Interestingly, in Huntington, Friedlander noted the Doctrine had “lain largely dormant in real estate litigation since the end of the 19th century, and understandably so, given not only the very narrow set of circumstances in which the doctrine may be invoked, but also the continuing evolution of land surveying, legal descriptions of property, and recording real estate transactions.”

So, safe to say, it now appears the Doctrine is something that will play more of a role in dealings between adjacent landowners as time goes on.

The takeaway of all this is that most states will have some form of the Doctrine of Title by Acquiescence. Although the requirements may differ, the general theme is the same – meaning, not knowing the exact boundary line of your land could cause you to lose part of your land.

One should not always expect that the old woven wire fence is the actual legal boundary line. You and your neighbor may have gotten along fine for years, if not decades, and carried on with life having no problem treating the old fence as the legal boundary line, but not intending for it to establish the legal boundary line. All bets are off when the new neighbor moves in.

A modern boundary line survey is good insurance against being caught on the short end of the Doctrine. So too is an agreement between neighbors stating that the use of the current fence as the boundary line is for convenience only, and not necessarily intended to become the legal boundary line.

These articles are for general informational purposes only and do not constitute an attorney-client relationship. John J. Schwarz II is a lifelong farmer in northeastern Indiana and has been an agricultural law attorney for more than a decade. He can be reached at 574-643-9999, john@schwarzlawoffice.com or visit him at www.thefarmlawyer.com