FILED DISTRICT COURT Third Judicial District MAR 28 2017 ‘SALT LAKE COUNTY By. Clark IN THE THIRD JUDICIAL DISTRICT COURT. ‘SALT LAKE COUNTY, STATE OF UTAH UCA PROPERTIES Ill; FOREST} | MEMORANDUM DECISION AND CORPORATION; and UTAH CHARTER ORDER ACADEMIES dba. AMERICAN PREPARATORY ACADEMY OF DRAPER, Case No. 150900734 Plaintifs, Judge Su Chon vs. PRICE LOGISTICS CENTER DRAPER, LLC fka CITY CENTRE ONE ASSOCIATES, LLC; BALLARD MEDICAL PRODUCTS; GRINGO CONSTRUCTION, INC; PRECISE YARD MAINTENANCE, LLC; and DRAPER IRRIGATION COMPANY, Defendants. This matter is before the Court on four motions: Defendants’ Motion for Partial Summary Judgment on trespass, waste and obstruction to watercourses; Defendants’ Motion for Partial Summary Judgment on boundary by acquiescence; Defendants’ Motion to Strike Expert Report of Donald Godi; and Motion to Strike Plaintiffs’ surreply. Oral argument was held January 26, 2017, and Plaintiffs were represented by Vince Rampton. Defendants were represented by Sara Bouley and Greg Newman. At thehearing, the Court granted the motion to strike and took the other three motions under advisement. The following is the Court's analysis and decision. BACKGROUND The disputed property is in the area of an 800-foot long ditch approximately 2.5 feet wide. At one time, there was a fence on the north side of the ditch. Remnants of that fence remain. In February 2013, the ditch was in disarray and blocked with fallen debris. Defendants revamped the ditch by removing debris, erecting a fence, and digging a trench, laying a pipeline, and refilling the trench. Plaintiff Forest Corp. and Defendant Price both claim ownership to the strip. The “ditchmaster’ gave permission to Price to install the trench. Price hired Dominion Engineering to mark the boundary between the disputed strip of land and Plaintiffs’ property. Price hired Gringo Construction to build a fence and dig the trench. Price hired Precise to remove debris and some trees from areas not owned by Plaintiffs. Plaintiff's Amended Complaint (3/3/16) brings claims for (1) quiet title, (2) eminent domain, (3) trespass, (4) waste to trees, (5) obstruction of watercourse, and (6) negligence. Defendant Price’s Amended Counterclaim (3/17/16) brings claims for (1) trespass, (2) adverse possession, and (3) boundary by acquiescence. |. Defendant Price’s Motion for Partial Summary Judgment on Counterclaim #3 (declaratory judgment — boundary by acquiescence) Price moves the Court for an order granting partial summary judgment on its counterclaim for declaratory judgment that it has established the boundary line by acquiescence. Price argues that the location of the now-removed fence determines the Property division line by way of the doctrine of boundary by acquiescence, which elements were met as far back as 1980. This doctrine requires evidence of: (1)occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence in the line as a boundary, (3) for a period of at least 20 years, and (4) by adjoining landowners. Anderson v. Fautin, 2016 UT 22, §] 8, 379 P.3d 1186. The standard of proof is clear and convincing evidence. Essential Botanical Farms, LC v. Kay, 2011 UT 71, 113, 270 P.3d 430. With respect to the first element, occupation up to a visible line, Price argues that the parties’ predecessors treated the old cedar and barbed wire fence—just north of the ditch~as the boundary between Plaintiffs property to the north (original Buehner property, used for livestock) and Price's property to the south (original Marcovecchio property, used for farming). Price presented evidence that the land was occupied and used by the Marcovecchio family for many years dating back to the 1940s. Bill Marcovecchio testified that his family farmed the property up to or near to the ditch, and the ditch was used for irrigation. Mr. Marcovecchio testified that he was at least within 6 feet of the ditch because they used a 6 foot siphon hose. Plaintiff argued that the Marcovecchio family had to use the land up to the fence. The law doesn't require occupation right up to the border, but the usage should be consistent with “a pattern of use that is normal and appropriate for the character and location of the land.” Dean v. Park, 2012 UT App 349, | 29, 293 P.3d 388. Occupation that provide notice includes uses that are “normal and appropriate for the character and location of the land,” such as ‘farming, raising livestock, irrigation, or residence.” Fautin, 2014 UT App 151 at 1 12. The deposition testimony of the prior property owners show that the property was occupied for farming uses.