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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 38066

JEBB HUSKINSON and BRANDIE 

HUSKINSON, a married couple,

 Plaintiffs-Respondents,

v.

LYNN C. NELSON, JR., and JANA 

NELSON, a married couple, 

 Defendants-Appellants.

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Boise, January 2012 Term

2012 Opinion No. 38

Filed: March 2, 2012

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Seventh Judicial District of the State of 

Idaho, Madison County. Hon. Gregory S. Anderson, District Judge.

The judgment of the district court is vacated and the case is remanded.

Hopkins Roden Crockett Hansen & Hoopes, PLLC, Idaho Falls, for appellants. 

C. Timothy Hopkins argued. 

Rigby Andrus & Rigby, Chtd., Rexburg, for respondents. Hyrum Erickson 

argued.

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J. JONES, Justice.

This is a boundary dispute. Appellants Lynn and Jana Nelson argue that they own a strip 

of land even though the county records show respondents Jebb and Brandie Huskinson to be the

owners of record. The Nelsons contend that the disputed land belongs to them because of a 

boundary by agreement. The district court granted summary judgment to the Huskinsons. We 

now vacate the district court’s judgment and remand the case.

I.

BACKGROUND

The Nelsons and Huskinsons own adjacent parcels of real property in the SE1/4 of the 

SE1/4, Section 31, Township 5 North, Range 40 East, Madison County, Idaho. The east side of the 

Nelsons’ parcel joins the west side of the Huskinsons’ parcel. Before 1947, Orrin and Adaline 
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Jeppson owned that entire quarter-quarter section, so they owned both the Nelsons’ and the 

Huskinsons’ parcels. Since at least 1947, a north-south fence (“the fence”) has divided what was 

the Jeppsons’ property. The fence runs parallel to, and west of, the Lenroot Canal, which runs the 

length of the property. According to Norman Erickson, who was born in 1915 and has lived near 

the disputed property for much of his life, the Jeppsons farmed the land to the west of the canal and 

raised cattle on the land east of it. On June 19, 1947, Henry and DeVeda Erickson bought the 

Jeppsons’ entire property. The Ericksons sold the “West 866 feet” of the property, the parcel the 

Nelsons now own, to George Nelson the following day, June 20, 1947. George Nelson sold the 

parcel to his son, Chester, in June 1952. Chester, in turn, sold it to appellant Lynn Nelson on 

November 10, 1988. The Nelsons have owned and farmed the parcel ever since. Like their 

predecessors in interest, the Nelsons farm up to the fence.

In February 2009, the Huskinsons bought a parcel that the Ericksons had retained from 

their original purchase from the Jeppsons. That is, the Huskinsons bought a parcel in the same 

quarter-quarter section as the Nelsons’ parcel. The Huskinsons’ property is immediately to the east 

of the Nelsons’ parcel. The Huskinsons contend that the fence runs through their property, 

between 40 and 54 feet from the western boundary. The Huskinsons therefore brought this action 

in February 2010 to quiet title, for trespass, and for ejectment, arguing that since the Nelsons are 

farming up to the fence, they have been farming a portion of the Huskinsons’ land.

The Nelsons filed a counterclaim, alleging they own the disputed strip of land under a 

theory of boundary by agreement. According to the Nelsons, the fence was intended to be a 

boundary between the parcels or has been recognized as a boundary since 1947. Both sides moved 

for summary judgment. The district court granted summary judgment to the Huskinsons,

concluding that the fence was not intended to be a boundary when it was built. The court thus held 

that there was no boundary by agreement. The Nelsons timely appealed. 

II.

ANALYSIS

A. Standard of Review.

This Court employs the same standard in reviewing an order for summary judgment as the 

district court used when it originally ruled on the motion. Van v. Portneuf Med. Ctr., 147 Idaho 

552, 556, 212 P.3d 982, 986 (2009). Summary judgment is appropriate “if the pleadings, 

depositions, and admissions on file, together with the affidavits, if any, show that there is no 
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genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 

of law.” I.R.C.P. 56(c). When a matter would be tried to the district court, and not to a jury, the

court, as trier of fact, “is entitled to arrive at the most probable inferences based upon the 

undisputed evidence properly before it and grant the summary judgment despite the possibility of 

conflicting inferences.” P.O. Ventures, Inc. v. Loucks Family Irrevocable Trust, 144 Idaho 233, 

237, 159 P.3d 870, 874 (2007). So, although conflicting evidence must be viewed in a light 

favorable to the nonmoving party, conflicting inferences need not be. Banner Life Ins. Co. v. Mark 

Wallace Dixson Irrevocable Trust, 147 Idaho 117, 124, 206 P.3d 481, 488 (2009); Cox v. Clanton, 

137 Idaho 492, 494, 50 P.3d 987, 989 (2002). This Court exercises free review over the record 

before it to determine whether the district court’s inferences are supported, and to determine 

whether either side is entitled to judgment as a matter of law. P.O. Ventures, Inc., 144 Idaho at 

237, 159 P.3d at 874.

B. Summary Judgment Was Not Appropriate.

In a case of this nature, where a party asserts ownership over a strip of land shown by 

property records to be titled to a neighbor, we start with the assumption that the property records 

are correct. A party with title to the disputed property is presumed to be the legal owner of the 

property. Teton Peaks Inv. Co., LLC v. Ohme, 146 Idaho 394, 397, 195 P.3d 1207, 1210 (2008). 

“Another person who claims ownership to that property must establish the claim by clear, 

satisfactory, and convincing evidence.” Id. That may be done by producing such evidence,

showing that the parties agreed to a boundary other than the one indicated by the property 

records. 

A boundary by agreement requires two things: (1) an uncertain or disputed legal

boundary and (2) an agreement between neighboring landowners as to what will be the 

boundary. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 13, 232 P.3d 330, 334 (2010). 

“Ignorance of the true boundary creates the uncertainty necessary to satisfy the first element.” 

Id. If there is no express agreement, and if the doctrine is to apply, then the court must infer that 

there was an agreement between the parties based on their behavior. Griffin v. Anderson, 144 

Idaho 376, 378, 162 P.3d 755, 757 (2007); see also Teton Peaks, 146 Idaho at 397, 195 P.3d at

1210 (stating that the agreement to make a boundary may be either express or implied). A fence 

between neighboring properties can imply an agreement. Griffin, 144 Idaho at 378, 162 P.3d at 
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757. 

Evidence of a long-established fence creates two presumptions. Luce v. Marble, 142 

Idaho 264, 271−72, 127 P.3d 167, 174−75 (2005). First, the law presumes an agreement fixing 

the fence line as the boundary when coterminous landowners have treated the fence as the 

property line for so long “that neither ought to be allowed to deny the correctness of its location.” 

Id. at 271, 127 P.3d at 174. (internal quotation marks omitted). Second, the law presumes the 

fence was originally located as the boundary by agreement where there is a “want of any 

evidence as to the manner or circumstances of its original location.” Id. at 272, 127 P.3d at 175.

Accordingly, “the long existence and recognition of a fence as a boundary, in the absence of any 

evidence as to the manner or circumstances of its original location, strongly suggests that the 

fence was located as a boundary by agreement.” Cameron v. Neal, 130 Idaho 898, 901, 950 P.2d 

1237, 1240 (1997). 

A boundary by agreement is also sometimes called a boundary by acquiescence. Griffel 

v. Reynolds, 136 Idaho 397, 400, 34 P.3d 1080, 1083 (2001). But an agreement, either express 

or implied, “is essential to a claim of boundary by acquiescence.” Id. at 401, 34 P.3d at 1084.

See also Cox, 137 Idaho at 495, 50 P.3d at 990 (holding that there was no boundary by 

acquiescence because the evidence failed to show an agreement to treat a fence as a boundary). 

“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.” Flying Elk, 149

Idaho at 13, 232 P.3d at 334 (quoting Griffel, 136 Idaho at 400, 34 P.3d at 1083). Nonetheless, 

“[a] long period of acquiescence . . . provides a factual basis from which an agreement can be 

inferred.” Griffel, 136 Idaho at 400, 34 P.3d at 1083. Moreover, “[a]llowing an adjoining 

landowner to improve the disputed land is [also] evidence of an agreement.” Flying Elk, 149

Idaho at 13, 232 P.3d at 334. 

In this case, the district court held that there was no agreement at the time the fence was 

erected to establish it as a boundary line. First, the court opined that “[i]f the fence was erected 

on or before June 19, 1947, it would not have been erected between coterminous landowners and 

the presumptions would not apply.” This is because prior to June 19, 1947, the Nelsons’ parcel 

and the Huskinsons’ parcel were united under the common ownership of the Jeppsons. In an 

affidavit, Norman Erickson stated that when he was young the Jeppsons’ land west of the canal 
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was farmed, while the land on the east side had cattle on it. Based on that affidavit, the court 

inferred that the Jeppsons probably built the fence to keep cattle confined to one side of their 

land.1 The court also noted that the Nelsons admitted in their answer and counterclaim that the 

fence had existed since their predecessors in interest acquired the property in 1947. So, the court 

concluded the evidence implied that the fence was built while the property was in common 

ownership and not for the purpose of creating a boundary. The court therefore held that the 

fence did not constitute a boundary by agreement. 

The Nelsons argue that the district court erred because the evidence does “not give any 

indication as to when the fence line was built, who built it, or why it was built.” The Nelsons 

contend that a number of affiants established that the fence has existed for as long as anyone 

could remember and that successive landowners on both sides of the fence had treated it as a 

boundary. They also assert that the district court erred by inferring the Jeppsons built the fence 

to confine their cattle. They therefore argue that the length of time the fence has existed, coupled 

with a lack of evidence as to its purpose, establishes a presumption of a boundary by agreement 

on the fence line. The Nelsons further argue that even if the fence was built while the Jeppsons 

owned the property, the fence has nevertheless been treated as a boundary subsequently and,

therefore, is a boundary by agreement.

The Huskinsons respond that the Nelsons have not put forth “any evidence or argument 

regarding when the alleged agreement was made. Rather, [they have] relied solely on the 

‘unknown fence’ presumption as the evidence of the agreement.” This, according to the 

Huskinsons, is insufficient for the Nelsons to maintain their action because there is evidence in 

the record suggesting that the fence has been in place since the Jeppsons owned the entire 

quarter-quarter section. Therefore, the Huskinsons assert that regardless of the conduct of

subsequent owners, the Nelsons are not entitled to a presumption that the fence is a boundary and 

the Nelsons have failed to show any other agreement. 

The district court did not err in drawing the inference that the fence was not originally built 

as a boundary. The real property claims here are equitable and therefore would be tried to the 

court without a jury. See Loomis v. Union Pac. R. Co., 97 Idaho 341, 346, 544 P.2d 299, 304

 

1 Erickson made no mention of the fence in his affidavit and did not state how close the farming activity on the west 

side came to the canal. 
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(1975) (“In suits to quiet title to real property, no right to trial by jury exists.”). The district judge 

was therefore free to draw probable inferences from the unconflicting evidence because he would 

sit as factfinder. While there was no direct evidence indicating when the fence was built, the court 

inferred that it existed in 1947, when the Nelsons’ and Huskinsons’ parcels were united in common 

ownership because of the Nelsons’ admission that the fence had existed since their predecessors in 

interest first acquired the property—when it was divided in 1947. The court’s inference is

probable, even if one could draw other inferences from the record. The Nelsons have not pointed 

to any evidence that contradicts the inference. They just disagree with the district court. The 

Huskinsons have thus rebutted a presumption that the fence was built to establish a boundary, and 

the Nelsons failed to point to anything in the record that suggests the fence was built as a 

boundary. We therefore accept the district court’s conclusion that the fence did not constitute a 

boundary by agreement when it was built.

However, the district court erred in basing its decision solely upon the finding that the 

fence was not initially built as a boundary fence. The court apparently assumed that nothing which 

occurred during the subsequent sixty years could have resulted in an agreement to fix the boundary 

along the fence line and therefore did not consider the conduct of the parties after 1947. However, 

that is not necessarily the end of the story. In Griffel, we stated:

Where no express agreement is shown, the agreed upon boundary “must therefore 

be determined from the conduct of the parties, viewed in the light of the 

surrounding circumstances.” . . . A long period of acquiescence by one party to 

another party’s use of the disputed property provides a factual basis from which an 

agreement can be inferred.

136 Idaho at 400, 34 P.3d at 1083. The district court should have analyzed the evidence in the 

record to see whether it supported the establishment of a boundary by agreement subsequent to 

1947. 

There was evidence in the record that would support the conclusion that the Nelsons and 

the predecessors in interest of both parties agreed to the fence line as a boundary based upon their 

long-standing acquiescence and conduct. The Nelsons put forth evidence that a number of 

residents in the area near the disputed property considered the fence to be the boundary.

2 The 

 

2 One affiant, Stanley Sutton, stated that from September of 1977 to January of 1996, he owned a piece of property 

immediately north of the Huskinsons’ property and immediately east of the Nelsons’ property. He stated that he 
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Nelsons assert that they had always considered the fence to be the eastern boundary of their 

property and were thus ignorant of the actual boundary. This is supported by Lynn Nelson’s 

affidavit, which stated that he has “always believed and understood that the property line dividing 

my property from the Huskinsons’ property was the fence line that is located there today.” An

affidavit of Jebb Huskinson attempts to call this into question. Mr. Huskinson’s affidavit included,

as an exhibit, a “Record of Survey for Lynn Nelson,” which was recorded in Madison County in 

December 1988. That survey showed a discrepancy between the property description in the 

Nelsons’ recorded deed and the property the Nelsons claimed to own. The survey noted that the 

parcel described in the Nelsons’ deed is 866 feet wide, but indicated that the distance to a fence 

that roughly parallels the parcel’s eastern boundary is more than 866 feet. In other words, the 

survey showed that a fence on the eastern boundary—presumably the fence central to this action—

was outside the Nelsons’ deeded parcel. Thus, one might infer that the Nelsons were not ignorant 

of the legal boundary of their property and, in fact, knew since 1988 that the fence was not the 

actual boundary. However, one could also infer that, regardless of the survey, the Nelsons still 

understood the fence to be the boundary because their predecessors had been using the property all 

of the way to the fence for about 40 years before that survey. 

The Huskinsons’ predecessors also appear to have acquiesced in the fence as the property

boundary and treated it as such. There is no evidence in the record that any predecessor in interest 

of the Huskinsons made complaint regarding the Nelsons’ use of the property from 1947 until after 

the Huskinsons acquired their parcel in 2009. During that 60-year period of time, the Nelsons and 

their predecessors had undisputed use and control of the property on the west side of the fence and 

it appears that the Huskinsons’ predecessors confined their use of the property to that on the east 

side of the fence. Photographs of the fence line, which the Nelsons’ counsel referred to and used in 

his oral argument in the district court, show a row of mature trees between the canal and the fence. 

The Nelsons’ counsel referred to these trees as a windbreak. Based on an aerial photo of the 

disputed boundary, it is reasonable to infer that the trees were, in fact, planted as a windbreak. And 

because landowners might typically plant a windbreak at, or very near their property line, the 

 

always regarded the fence as the property boundary. Attorney Blair Grover stated in his affidavit that his parents 

acquired property immediately east of the Nelsons’ property in the late 1950s or early 1960s and still own the same. 

The Grover property is apparently located south of the Huskinsons’ property, although it is not clear from Grover’s 

affidavit. He stated that he always believed the fence line was the property boundary. 
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location of the trees here also implies that the Huskinsons’ predecessors treated the fence as the 

boundary. So, while the Huskinsons’ predecessors did not farm up to the fence line, they treated 

their property on the east side of the fence like one would treat a boundary.

Furthermore, it is unlikely that the Huskinsons’ predecessors knew of the actual boundary 

but nonetheless orally agreed to make the fence the boundary or that they gave the Nelsons and 

their predecessors permission to use and control the property up to the fence. It is likely that, had 

the Huskinsons’ predecessors known that the Nelsons and their predecessors were using land that 

actually belonged to them, they would have taken action to assert their ownership rights, unless 

there was an agreement that allowed the Nelsons to do so. The most reasonable inference to draw 

from the evidence in the record is the owners of neither parcel were aware of the true property

boundary until the controversy arose between these parties. 

The foregoing discussion regarding the conduct of the parties after 1947 is not to suggest 

that the district court should have found in favor of the Nelsons. Acquiescence in the location of a 

fence line, even for a long period of time, does not necessarily tip the scales in favor of the 

encroaching party. The problem here is that the district court did not analyze the post-1947 

evidence to see whether it suggested a subsequent agreement regarding the boundary line.

Of perhaps more importance is the district court’s failure to consider the significance of 

uncontested evidence presented by the Nelsons that they and their immediate predecessor in 

interest had farmed up to the fence line for almost sixty years. Glenna McCullough testified in her 

affidavit that her brother, Chester Nelson, owned the Nelsons’ parcel between 1952 and 1988, 

when he sold it to the Nelsons. She stated that, “[p]rior to selling the property to [the Nelsons], 

Chester Nelson continuously farmed his property on the west side of the fence line which divided 

his property from that property currently owned by [the Huskinsons].” In his affidavit, Lynn 

Nelson stated, “[s]ince we purchased the property in November of 1988, we have farmed all of the 

property up to this fence.” Even if the fence line had not existed for this period of nearly 60 years,

the fact of farming up to the line where the fence was located certainly supports an inference that 

the farming was done by agreement. This Court has previously held that farming lines, standing 

alone, can provide the evidence necessary to support a boundary by agreement.

In Griffel, this Court considered a boundary by agreement premised on farming lines. 136 

Idaho 397, 34 P.3d 1080. There, a man named Stegelmeier bought a parcel in 1976 and began 
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farming it the next year. Id. at 398, 34 P.3d at 1081. Adjacent land to the north and to the west of 

Stegelmeier’s parcel had been farmed for some years before Stegelmeier began farming—since at

least 1943 on the parcel to the west. Id. at 399, 34 P.3d at 1082. Stegelmeier farmed his land until 

1991 and sold it in 1995. Id. at 398–99, 34 P.3d at 1081–82. Stegelmeier’s successors in interest, 

the Reynolds, had the land surveyed. Id. The Reynolds discovered that the legal description of 

their property extended beyond the farming lines to the west and north—i.e., both the neighbors to 

the west and to the north were farming strips of land that the property records indicated to be 

owned by the Reynolds. See id. When the Reynolds attempted to build a fence along the deeded 

property lines, the neighbors sued, claiming that the farming lines constituted the actual property 

line on a theory of boundary by agreement. Id. at 399, 34 P.3d at 1082. Both neighbors testified 

that they had farmed up to a fence line, dividing their property from the property acquired by the 

Reynolds, but neither neighbor offered “evidence as to when the fences were erected, by whom, 

[or] for what purpose.” Id. at 400, 34 P.3d at 1083. This Court noted, “because the fences were no 

longer in existence when Stegelmeier purchased his land, the [neighbors] cannot rely on the old 

fence lines to prove an agreement but must meet their burden of proof with other evidence.” Id.

The Griffel Court affirmed the district court’s decision that the farming lines did, in fact, 

constitute a boundary by agreement. Id. at 401, 34 P.3d at 1084. “The record disclose[d] that 

Stegelmeier never confronted [his neighbors] with objections as to the location of their farming 

lines.” Id. at 400, 34 P.3d at 1083. Rather, “the farming lines had remained substantially 

unchanged since 1978.” Id. That finding was based in part on expert testimony that the actual 

farming lines had been the same over the entire period. Id. at 401, 34 P.3d at 1084. The Court was 

“satisfied” that Stegelmeier and his neighbors “tacitly accepted the farming lines as visible 

evidence of their dividing lines for a long period of time.” Id. The Court affirmed the district 

court’s finding that this acquiescence—“the mutual recognition of the farming lines and the 

occupation and cultivation by each party up to the lines”—implied an agreement between 

Stegelmeier and his neighbors that those lines would constitute their property boundaries. Id. 

This case is substantially similar to Griffel, except that the parties here, or their 

predecessors, have recognized the farming lines up to the fence as the property boundary for three 

times as long as the neighbors in Griffel. In that case, expert testimony established that the farming

lines remained unchanged. Here, it is uncontroverted that the Nelsons and their immediate 
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predecessor farmed up to the fence continuously since 1952. Furthermore, the Huskinsons’ 

predecessors’ conduct as to the fence—allowing the Nelsons to farm on one side while maintaining

a windbreak on the other—implies an agreement. Thus, there is clear and convincing evidence 

from which the district court could have found that the Nelsons, and their predecessor, and the 

Huskinsons’ predecessors impliedly agreed to the farming line and fence as the boundary between 

their parcels, and they did so for long enough that nobody should now be heard to complain. The 

district court limited its analysis to conduct at the time the fence was built. But the conduct of the 

subsequent landowners as to the farming lines and fence over the last 60 years is also relevant. The 

district court erred in failing to consider whether a boundary by agreement may have arisen during 

that time. Therefore, we vacate the judgment and remand for further proceedings. 

C. Neither the Nelsons nor the Huskinsons are entitled to fees on appeal.

The Huskinsons request attorney fees on appeal. The Nelsons also sought fees when they 

filed this appeal but abandoned their request at oral argument. The Huskinsons have not prevailed 

and therefore are not entitled to fees.

III.

CONCLUSION

We vacate the judgment of the district court and remand the case for further proceedings 

consistent with this opinion. We award costs to the Nelsons, but no attorney fees.

Chief Justice BURDICK, and Justices EISMANN, W. JONES and HORTON CONCUR.