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Flying Elk Investment, LLC v. Cornwall

April 26, 2010


Appeal from the District Court of the Sixth Judicial District of the State of Idaho, Bannock County. Hon. Stephen S. Dunn, District Judge.

The opinion of the court was delivered by: W. Jones, Justice

2010 Opinion No. 48

The decision of the district court granting summary judgment to Respondent is affirmed. Costs and attorney‟s fees are awarded to Respondent.


This case is a land dispute over a nineteen-acre sliver of land between properties belonging to Flying Elk Investment and David Cornwall. Flying Elk had its lot surveyed in 2003, revealing that a fence dividing the two lots cuts into its property nearly 300 feet in some places. It now seeks to quiet title and obtain possession of the disputed land. Cornwall contends that because the fence has been present for roughly seventy years, the disputed land is now legally his under the theory of boundary by agreement.


At issue here is the legal boundary between two parcels of land in Bannock County, Idaho. David Cornwall acquired his lot from Joseph and Alta Whitworth in 1972. Robert Bohus purchased his lot from Pat Whitworth in 1994 and then conveyed it to Flying Elk Investments, which he controls. Cornwall‟s east and south sides border Flying Elk such that the Flying Elk lot forms a backwards "L" around the Cornwall lot. Although the legal description of the borders forms two straight lines, a crooked wire fence divides the parcels running roughly sixty feet south of Cornwall‟s true southern border, intruding into Flying Elk‟s property, then turning north and running haphazardly to Flying Elk‟s northern boundary. The fence runs nearly three hundred feet into Flying Elk‟s true western edge. This leaves almost nineteen acres of Flying Elk‟s deeded land on Cornwall‟s side of the fence.

In the early 1940s, Cornwall‟s property was owned by Joseph and Alta Whitworth while Flying Elk‟s property was owned by Harold and Thelma Whitworth. Joseph and Harold were brothers and both are now deceased. Corwin "Pat" Whitworth was Harold‟s son and owned Flying Elk‟s current property along with his wife Ruth from 1979 until he conveyed it to Bohus in 1994. Pat worked with his father on the farm as a child and recalls that an old fence already stood on the property before his family bought it. He helped his father move and rebuild parts of the fence in the 1940s and since then has periodically repaired, replaced, and relocated portions of the fence to facilitate maintenance. His father and uncle did not want to pay for a survey to identify the true boundary, so Pat believes they never intended for the fence to reflect the true boundary but kept it where it was because it was in a convenient location to restrain livestock. Pat informed Bohus that the fence was not the true boundary when Bohus purchased the property.

There is no evidence of an express agreement between the original landowners, nor is there evidence of an agreement between Joseph and Harold or any of the other successor landowners, to make the fence the property boundary. Over the years, however, the occupants of each property farmed and grazed animals up to the fence line. When Cornwall bought his land in 1972, he believed the fence was the property line so he continued using the land up to the fence and added a pond to the disputed area. He and Pat shared responsibility for maintaining the fence.

Although Bohus acquired his property from Pat in 1994, he did not have the land surveyed until 2003. After the survey revealed the fence intruded onto his deeded property, Bohus requested permission from Cornwall to move the fence, but was rebuffed. Flying Elk then sued to quiet title, claiming the fence did not constitute a boundary by agreement and that, under § I.C. 35-110, Cornwall was obligated to relocate the fence to the true property line. Cornwall moved for summary judgment, requesting that the district court declare the fence to be the legal boundary. The parties stipulated that they had developed all evidence relevant to the case in their affidavits and depositions. The district court granted summary judgment to Cornwall, reasoning that such a long acquiescence in the location of the fence showed a boundary by agreement, and rejected Flying Elk‟s contention that I.C. § 35-110 compelled Cornwall to move the fence.*fn1


1. Whether the district court correctly found that the fence constitutes a boundary by agreement.

2. Whether the district court correctly held that I.C. ยง 35-110 does not require Cornwall to relocate the ...

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