Idaho v. Sempel

8

dispute of such facts as to their boundary-by-[agreement] cause of action." The district court's inference that the first element of boundary by agreement was unsatisfied was erroneous because the inference rested on disputed evidence. See Heath, 174 Idaho at 954, 963, 560 P.3d at 1101, 1110. Finally, the Sempels' evidence regarding boundary by agreement, while not unassailable, was sufficient to create a genuine issue of material fact. Bedell v. Parsons, 177 Idaho ___, 529 P.3d 322, 331 (2026) ("To defeat summary judgment, the nonmoving party need only present evidence that creates a disputed issue of fact on a triable issue. The nonmoving party is not required to persuade the court that the trier of fact would resolve the disputed issue of fact in his favor."

(Citation omitted.)). Again, to conclude otherwise would require the court to have either stricken or weighed the evidence.

To be clear, it is not suggested that the Sempels' claims, which are supported by little beyond their declarations, meet the "clear and convincing" and "clear, satisfactory, and convincing" standards required at trial for adverse possession and boundary by agreement claims. See I.C. § 5-210; Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 13, 232 P.3d 330, 334 (2010) (citation omitted). However, those are not the standards for survival of summary judgment as a nonmoving party. See Kelso v. Applington, 173 Idaho 738, 749, 548 P.3d 363, 374 (2024) ("[T]he traditional summary judgment principles and standards govern when deciding a motion for summary judgment, even where there is a heightened evidentiary standard—such as 'clear and convincing evidence'—that must be met at trial."). The Sempels were the moving party with respect to their motion for quiet title but were the nonmoving party with respect to the State's motion for quiet title. A grant of summary judgment is only proper "if the movant shows that there is no genuine dispute as to any material fact . . . ." Heath, 174 Idaho at 954, 560 P.3d at 1101 (citation modified). At this stage, the district court must not "weigh evidence or resolve controverted factual issues." Montgomery, 147 Idaho at 7, 205 P.3d at 656. Because the district court did just that, as noted below, we reverse the summary judgment and remand for further proceedings.

B. The district court erred by ruling that the State was entitled to summary judgment on the Sempels' adverse possession claim.

The Sempels argue that the district court erred when it ruled that the "Sempels have presented no evidence of government taxes 'levied and assessed' on the subject property as required by [Idaho Code section] 5-210." The Sempels contend that the court refused to apply Idaho's lot-number exception, which satisfied the tax payment requirement of section 5-210. The

9

Sempels further assert that they introduced sufficient evidence to satisfy the other elements of adverse possession, and the district court erred when it denied their motion for summary judgment on that theory. The State responds that the State's motion for summary judgment was properly granted because the Sempels failed to "prove any element of adverse possession[,]" and presented no evidence of taxes paid or tax assessments. We agree with the Sempels and reverse the district court's summary disposition of the Sempels' adverse possession claim. The requirements to sustain a claim of adverse possession are set out in Idaho Code section 5-210. Adverse possessors must, among other things, "have paid all the taxes, state, county or municipal, which have been levied and assessed upon such land according to law." I.C. § 5-210. Importantly, the Sempels assert that their claim of adverse possession ripened by 1984, five years after they took possession of the property in 1979, and long before the State took possession of the disputed property.²

1. Adverse possessors can constructively satisfy the statutory tax payment requirement through the lot-number exception.

This Court has long recognized that the payment of taxes requirement on adversely possessed property is not always a literal one. Trappett v. Davis, 102 Idaho 527, 530, 633 P.2d 592, 595 (1981) ("Decades of judicial gloss have steadily chipped away at a literal application of the [adverse possession] tax requirement."). When property is imprecisely described, tax payments on the adverse possessor's actual property may constitute constructive tax payments on the disputed tract. Roark v. Bentley, 139 Idaho 793, 796, 86 P.3d 507, 510 (2004). Otherwise, an adverse possessor would "face[] an almost impossible task in attempting to prove that he paid taxes on the land he claims . . . ." Flynn v. Allison, 97 Idaho 618, 621-22, 549 P.2d 1065, 1068-69 (1976). The Court in Roark emphasized the importance of the "lot number" exception to the tax payment requirement:

[I]n the case of boundary disputes between contiguous landowners, where one landowner can establish continuous open, notorious and hostile possession of an adjoining strip of his neighbor's land, and taxes are assessed by lot number or by government survey designation, rather than by metes and bounds description, payment of the taxes on the lot within which the disputed tract is enclosed satisfies the tax payment requirement of the . . . statute.

10

139 Idaho at 796, 86 P.3d at 510 (alterations in original) (quoting Scott v. Gubler, 95 Idaho 441, 443-44, 511 P.2d 258, 260-61 (1973)). The Court's reference in this quote to the "lot within which the disputed tract is enclosed" refers to the land fenced in by the adverse possessor, which included both the possessor's lot of record and the adjacent disputed tract. Id. (emphasis added). It does not mean the lot where the disputed tract is legally located. Our decision in Roark, which quoted from Scott, aligned with Court precedent going back to at least 1909. 139 Idaho at 796, 86 P.3d at 510; see, e.g., Bayhouse v. Urquides, 17 Idaho 286, 105 P. 1066 (1909) (quieting title in adverse possessor when fence was built beyond the true property line to enclose the disputed property, and the adverse possessor had paid property taxes on his lot of record for decades). In Scott, Scott owned Lot 4 and enclosed part of the adjoining Lot 3 with a fence. 95 Idaho at 441-42, 511 P.2d at 258-59. Despite Scott not making actual tax payments on Lot 3, the Court affirmed the district court's finding that payment of taxes on Lot 4 "constituted payment of taxes on all the land actually being occupied as Lot 4, including the disputed land" and the "quiet[ing] [of] title in Mrs. Scott to the triangular portion of Lot 3 which had been enclosed by Scott's fence."

Id. at 443-44, 511 P.2d at 260-61.

If the adverse possessor can establish payment of taxes on the enclosed parcel, this Court has held that such evidence satisfies the taxes paid element of an adverse possession claim. In Luce

v. Marble we stated, "[u]nless the land was assessed under a metes and bounds description, or there is evidence the adverse possessor did not pay any taxes on the property, the law presumes the adverse possessor paid taxes on the disputed parcel and the tax payment requirement is satisfied." 142 Idaho 264, 272, 127 P.3d 167, 175 (2005). The presumption can only arise if the property is not assessed taxes under a metes and bounds, or similarly precise, description. Id.; Roark, 139 Idaho at 797, 86 P.3d at 511 ("Since neither . . . tax assessment notice[] rel[ies] on a metes and bounds description, the precise quantity of land assessed is undeterminable and the lot number exception applies . . . ."). The adverse possessor must also show how taxes were assessed in order to utilize the presumption. Luce, 142 Idaho at 273, 127 P.3d at 176. The Luce Court emphasized that, "[w]hen determining whether an exception to the tax payment requirement applies, the basis for the assessor's actual valuation of the property, whether by metes and bounds or some other more general method, is critically important." 142 Idaho at 272, 127 P.3d at 175 (citation omitted). There, the adverse possessor "failed to establish how taxes were assessed on the

. . . property, so it [was] impossible to determine if she [met] one of the exceptions." Id. at 273,

11

127 P.3d at 176. Finally, the presumption also requires that there is no "evidence the adverse possessor did not pay any taxes on the property[.]" Id. at 272, 127 P.3d at 175. Luce also described two other relevant aspects of the adverse possession taxation requirement. First, the adverse possessor prevails when both they and the record owner pay taxes on the disputed property. Id. at 272-73; 127 P.3d at 175-76 (citing Roark, 139 Idaho at 796, 86 P.3d at 510). Second, if "tax records are inconclusive, uncontradicted testimony that the adverse possessor paid taxes on the disputed property is sufficient to show compliance with the tax requirement[.]" Id. (citing DeChambeau v. Est. of Smith, 132 Idaho 568, 572, 976 P.2d 922, 926 (1999)). As explained above, Luce also provides that "[u]nless the land was assessed under a metes and bounds description, . . . the law presumes the adverse possessor paid taxes on the disputed parcel and the tax payment requirement is satisfied." This underscores that a lack of a metes and bounds description means a presumption can arise that the adverse possessor paid the taxes. Our decisions in Bayhouse, Scott, Roark, and Luce hold that, when taxes are not assessed by metes and bounds or similarly precise descriptions and the adverse possessor has enclosed a disputed tract, the lot number exception construes payments on the tax lot of record as constructive payments on the disputed tract. See Bayhouse, 17 Idaho at 297-98, 105 P. at 1069-70; Scott, 95 Idaho 443-44, 511 P.2d at 260-61; Roark, 139 Idaho at 796-97, 86 P.3d at 510-11; Luce, 142 Idaho at 272-73; 127 P.3d at 175-76.

2. The State did not controvert the Sempels' evidence of constructive tax payments on the disputed tract.

The Sempels provided testimony in Greg's first declaration that they always paid their property taxes. While this evidence may be limited in the sense that it was based on Greg's statement rather than receipts or canceled checks, it was not controverted on summary judgment. Instead, the State argued that the Sempels "provided no evidence beyond bare assertions that they paid the required taxes." On appeal, the State continues to argue that the Sempels "failed to produce any evidence of taxes paid or assessed on any parcel, in any section whatsoever, regardless of legal description." (Citation modified.) Importantly, a sworn declaration is evidence; however, the State is correct that the manner of tax assessment is also germane to the analysis under Luce. The Sempels testified that they could not locate tax assessments from the relevant time period, and their counsel argued that because the property was not described by a metes and bounds description in the deed, it was fair to infer that they were likewise not taxed according to a metes and bounds description. The Sempels also point to assessment records of Potlatch's property,

12

submitted by the State, showing that Potlatch's property was taxed according to a township and range description, not a metes and bounds description. The State acknowledged that its property's chain of title contained no metes and bounds descriptions.

Therefore, there is evidence suggesting that the Sempels' property was not assessed under a metes and bounds description, and there is no evidence that the land was assessed under another description. So long as the property was not assessed by metes and bounds or another precise method, the Sempels may show constructive tax payments under Luce. The Sempels' deed and Potlatch's tax assessments are sufficient to raise a genuine issue of material fact on whether the Sempels' land was assessed according to a method other than metes and bounds. This evidence distinguishes this case from Luce, where the plaintiff was unable to utilize the "lot number"

exception because there was "no indication in the record" of how taxes were assessed. 142 Idaho at 273, 127 P.3d at 176.

Since the "lot number" exception applies, based on the Sempels' uncontroverted evidence at the summary judgment stage, their payment of taxes creates a genuine issue of material fact for the trier of fact to resolve. See, e.g., Scott, 95 Idaho 441, 511 P.2d 258. The State did not controvert the Sempels' evidence showing that the "lot number" exception applies. If the exception applies, then whether the Sempels paid taxes is a genuine issue of material fact for the trier of fact to resolve. See, e.g., id. The State's claim that the "Disputed Property is enclosed entirely in Section 2" misapprehends the Scott rule by conflating the physical location of the disputed property with the evidence indicating that the Sempels enclosed it within their lot of record. See Scott, 95 Idaho at 443-44, 511 P.2d at 260-61. Although the disputed tract may have been located in Section 2, the Sempels contend that the barbed-wire fence enclosed it within Section 11. The State's interpretation of Scott is also inconsistent with this Court's line of cases dating back over 100 years, holding that actual payment of taxes constituted constructive payment of taxes in adverse possession boundary disputes. See, e.g., Bayhouse, 17 Idaho 286, 105 P. 1066; Scott, 95 Idaho 441,

511 P.2d 258. Finally, the Sempels correctly cite Luce for the proposition that, under concurrent tax payments, the adverse possessor prevails. See Luce, 142 Idaho at 273, 127 P.3d at 176. Accordingly, the State's argument that "Potlatch was assessed all taxes for all of Section 2, inclusive of the Disputed Property," has no import if the Sempels also made tax payments. See id.

13

For the foregoing reasons, we reverse the district court's grant of summary judgment on the Sempels' adverse possession claim.

C. The district court erred by ruling the State was entitled to summary judgment on the Sempels' boundary by agreement claim.

The Sempels argue that the district court misapplied the "uncertainty" element of boundary by agreement and failed to apply Idaho's long-standing fence presumption when it quieted title in the State. The State repeats that it is the record owner of the disputed tract and reiterates that the Sempels' claims lack corroborating evidence. The State's arguments are unpersuasive at the summary judgment stage because they merely go to the weight of the evidence—they do not establish the lack of a genuine issue of fact. We reverse the district court's grant of summary judgment because the Sempels presented sufficient evidence to establish a genuine dispute of material fact on their boundary by agreement claim.

Idaho's boundary by agreement doctrine provides for title of an enclosed tract of land to be quieted in the adjoining property owner in certain circumstances. Anderson v. Rex Hayes Fam. Tr., 145 Idaho 741, 743-44, 185 P.3d 253, 255-56 (2008). Our decision in Flying Elk Investment, LLC v. Cornwall explains:

Boundary by agreement or acquiescence has two elements: (1) there must be an uncertain or disputed boundary and (2) a subsequent agreement fixing the boundary. Ignorance of the true boundary creates the uncertainty necessary to satisfy the first element. The agreement may be either express or implied by the landowners' conduct. . . .

Because the party holding title to property is presumed to be the legal owner, someone claiming ownership of that property must prove his or her claim by clear, satisfactory, and convincing evidence. Though our cases often use the phrase "boundary by acquiescence" interchangeably with "boundary by agreement," the latter phrase more accurately describes the doctrine. Where the boundary is uncertain or disputed, coterminous owners "may orally agree upon a boundary line" and such an agreement can become binding on successors if the parties to the oral agreement take possession under it. Since there must be an agreement, acquiescence is merely regarded as competent evidence of the agreement, and alone is not enough to establish a boundary by agreement. Allowing an adjoining landowner to improve the disputed land is evidence of an agreement.

149 Idaho 9, 13, 232 P.3d 330, 334 (2010) (citation modified). The first element, uncertainty or dispute, is assessed according to what the parties actually knew at the time of agreement, even if additional information was available or a survey is later conducted. See Heath v. Denny's Wrecker, 174 Idaho 942, 961, 560 P.3d 1089, 1108 (2024) ("If

14

'the true boundary is unknown until the property is surveyed, it is sufficient for a trier of fact to find an uncertain or disputed boundary.'" (quoting Fickenwirth v. Lanning, 173 Idaho 1, 8, 538 P.3d 370, 377 (2023))); Morrissey v. Haley, 124 Idaho 870, 873, 865 P.2d 961, 964 (1993) ("This Court and the Court of Appeals have clearly ruled that whether the correct boundary line is ascertainable elsewhere, via surveys or subdivision plats, is irrelevant; the proper inquiry revolves about what the parties, at the time of their agreement, actually knew."). The second element, a subsequent agreement fixing the boundary, may be satisfied by either an express or implied agreement, but acquiescence to the boundary alone does not prove an agreement. See Griffin v. Anderson, 144 Idaho 376, 378-79, 162 P.3d 755, 757-58 (2007). "This Court has repeatedly found a boundary by agreement where a fence is treated as the property line for a number of years, there is no information about why the fence was built, and no evidence to disprove that the fence was intended to be a boundary." Flying Elk, 149 Idaho at 14, 232 P.3d at

335.

In certain circumstances, a boundary delineated by a long-established fence can give rise to a presumption that the fence is evidence of an agreement fixing the boundary:

First, when a fence line has been erected, and then coterminous landowners have treated that fence line as fixing the boundary between their properties for such a length of time that neither ought to be allowed to deny the correctness of its location the law presumes an agreement fixing that fence line as the boundary. Second, coupled with the long existence and recognition of a fence as a boundary, the want of any evidence as to the manner or circumstances of its original location, the law presumes that it was originally located as a boundary by agreement because of uncertainty or dispute as to the true line.

Id. at 13-14, 232 P.3d at 334-35 (citation modified). Importantly, establishing a non-boundary purpose for the fence's construction can defeat the presumption that a long-established fence constitutes a boundary by agreement. See Griffin, 144 Idaho at 378-79, 162 P.3d at 757-58; Cox

v. Clanton, 137 Idaho 492, 495, 50 P.3d 987, 990 (2002). The mere fact that a fence runs

"haphazardly" does not disprove a boundary by agreement. Flying Elk, 149 Idaho at 12, 15, 232 P.3d at 333, 336. (holding that a "crooked wire fence . . . running haphazardly" and enclosing almost nineteen acres of adjoining land was reasonable). However, additional facts, such as the disproportionally large size of an enclosed tract, can make irregularly shaped boundaries unreasonable. Luce, 142 Idaho at 268-69, 272, 127 P.3d at 171-72, 175 ("[T]he shape of Parcel A is so irregular and encompasses such a large portion [(.34 acres)] of the Marble property [(1.34 acres)] that such an assumption would be unreasonable.").

15

Finally, unlike adverse possession, there is no statutorily mandated duration requirement for a boundary by agreement claim. But this Court held almost a century ago that at least five years of boundary existence are required to satisfy the rule, Kesler v. Ellis, 47 Idaho 740, 744, 278 P. 366, 367 (1929), while several recent cases have involved decades-long extant boundaries, see, e.g., Fickenwirth, 173 Idaho 1, 538 P.3d 370 (50 years); Flying Elk, 149 Idaho 9, 232 P.3d 330 (70 years); Griffel v. Reynolds, 136 Idaho 397, 34 P.3d 1080 (2001) (20 years). The lengthy periods involved in these recent cases, however, reflect their particular facts rather than a requirement that a boundary exist for decades before it may be established by agreement. The Sempels' evidence raised a genuine dispute of a material fact as to whether the fence created a presumption of a boundary by agreement, and the district court therefore erred when it ruled for the State on summary judgment. The Sempels put on evidence that the boundary was uncertain and that, for decades, the Sempels and the State's predecessors-in-title treated the fence as the property boundary. According to Greg's first declaration, sometime in the 1960s, Henning and Milwaukee Land Company agreed to the fence as the boundary, despite it not being the legal property line. This "[i]gnorance of the true boundary creates the uncertainty necessary to satisfy the first element" of boundary by agreement. Flying Elk, 149 Idaho at 13, 232 P.3d at 334 (citing Morrissey, 124 Idaho at 873, 865 P.2d at 964).

The "long existence and recognition of a fence as a boundary" means that "the law presumes that it was originally located as a boundary by agreement because of uncertainty or dispute as to the true line." Id. at 13-14, 232 P.3d at 334-35 (citation omitted). Put another way, a fence's longstanding existence may support an inference that the parties impliedly agreed to fix the boundary at the fence line. Here, the fence has stood for decades—long enough that the bark of the trees has grown around and engulfed portions of the barbed wire as shown below:

16

The Sempels also testified that (1) Rathbone, Contract Associates' representative, told them the fence was the boundary; (2) their predecessor-in-interest, Henning, and the State's predecessors-in-interest, Milwaukee Land Company and Potlatch, treated the fence as the boundary; (3) a state forester treated the fence as the boundary; and (4) there was no evidence the fence was erected for another purpose. This testimony established a genuine dispute of material fact concerning whether the long-standing fence presumption applied. Contrast Flying Elk, 149 Idaho at 14, 232 P.3d at 335 ("This Court has repeatedly found a boundary by agreement where a fence is treated as the property line for a number of years, there is no information about why the fence was built, and no evidence to disprove that the fence was intended to be a boundary."

(emphasis added)), with Griffin, 144 Idaho at 378-79, 162 P.3d at 757-58 (holding no boundary by agreement existed despite acquiescence because the fence was originally erected as a livestock barrier). Finally, it is irrelevant that the State's survey later revealed that the fence was not located at the true boundary; uncertainty is determined at the time the fence was erected. Fickenwirth, 173

17

Idaho at 7, 538 P.3d at 376. Given evidence of the fence's long treatment as a boundary and the lack of information about why the fence was built, we conclude that the Sempels' evidence presented at summary judgment was sufficient to give rise to the presumption the fence was located to fix an uncertain boundary. Flying Elk, 149 Idaho at 13-14, 232 P.3d at 334-35. For the reasons discussed, we conclude the Sempels established a genuine dispute of material fact on their boundary by agreement theory.

The State's litany of arguments in response is unpersuasive. The State emphasizes that there is no information referencing the boundary in either landowner's chain of title and no testimony from Milwaukee Land Company or Potlatch in the record. It argues that the fence itself would not be a reasonable boundary under the doctrine because of its shape and the fact it was

"primarily lying along the ground" during a 2020 and a 2023 survey. It also cites two of the Sempels' water rights applications to show that the Sempels knew the true boundary between the properties. Finally, the State seems to imply that the wire could have been placed fraudulently, stating "[n]o evidence was presented to establish the era of the barbed wire, although antique barbed wire could be sourced from anywhere, and by its very nature is temporary and portable."

While the State does point to additional evidence that could have been presented, it fails to overcome the Sempels' evidence.³The State's evidence focuses on the barbed wire's current condition, not the fence's condition at the time the alleged agreement was made. The fact the barbed wire was "primarily lying along the ground" during the 2020 and 2023 surveys does not address the fence's condition when the Sempels acquired the property in 1979 or between 1979 and the surveys. No evidence cited by the State shows that the actual boundary was certain at the time the fence was built or that the fence was built for a different purpose. The State is also incorrect that the "irregular, abrupt, and non-linear" shape of the boundary renders the boundary by agreement claim "patently absurd." See Flying Elk, 149 Idaho at 12, 15,

232 P.3d at 333, 336. The Sempels assert that the disputed tract is irregularly shaped because the fence follows the contours of the land. There is also no indication that the 5.95-acre tract encompasses a large portion of Section 2's 633.5 acres or the 4,108.42 total acres the State acquired from Potlatch. See Sims v. Daker, 154 Idaho 975, 980, 303 P.3d 1231, 1236 (2013) ("[T]he [p]arcel

18

is approximately three acres of the Dakers' approximately 103 acres. The [p]arcel is not a large portion of the Daker parcel.").

Nor do the Sempels' water rights applications demonstrate that the Sempels knew the true boundary between the properties. The 1988 and 2011 applications show that: (i) the Sempels applied for water use only on Section 11; and (ii) Section 11 was a rectangle. The 2011 application includes a satellite image, which shows a clear delineation between Section 11 and Section 2. But the applications do not show what the Sempels' predecessors-in-interest knew. Henning and Milwaukee Land Company may have agreed to fix the boundary without knowledge of the actual line or the benefit of satellite imagery. See Heath v. Denny's Wrecker Serv., Inc., 174 Idaho 942, 961-62, 560 P.3d 1089, 1108-09 (2024); Morrissey, 124 Idaho at 873, 865 P.2d at 964. According to the Sempels, both applications were submitted after the minimum five years for a boundary by agreement claim to ripen had elapsed, so the boundary may already have been set. See Kesler, 47 Idaho at 744, 278 P. at 367. Second, and of less importance because boundary by agreement focuses on the original agreement, the applications describe water use, not necessarily land ownership. Applying to use water on Section 11 does not establish as a matter of law that the Sempels did or did not believe they owned the disputed tract located in Section 2. The Sempels assert that their predecessors-in-interest had enclosed the disputed tract within Section 11. That said, the shape of the disputed property as shown in the Sempels' own exhibit shows that the fence line runs northwest from the property line before turning sharply south then almost due west. The irregular shape of the fence, at least as shown on the 2023 survey, clearly diverges from the rectangular section depicted on the water rights applications. However, it is impossible to know how reasonable the fence line appears in context. The Sempels argue generally that deeds and other evidence do not defeat a boundary by agreement, because otherwise, "boundary by agreement would collapse into the deed line in most cases . . . ." This contention is supported by this Court's decision in Griffel, where the parties' lack of knowledge of the actual boundary was sufficient for a boundary by agreement to arise even though deeds "describe[d] the boundaries in terms of the section lines of Section 24 of the government survey." 136 Idaho at 400, 34 P.3d at

1083.

Even if there is uncertainty about the relationship between the on-the-ground boundary and the boundary depicted in the water rights application, that is a factual dispute that should not be

19

decided on summary judgment. We reverse the district court's grant of summary judgment on the Sempels' boundary by agreement claim.

V. C ONCLUSION

For the reasons set forth above, we vacate the district court's partial judgment, reverse its grant of partial summary judgment to the State, and remand the case for further proceedings. Chief Justice BRODY and Justices MOELLER, ZAHN, and MEYER CONCUR.