Boyer v. Rubin

2026 UT App 160 THE UTAH COURT OF APPEALS PAUL E. BOYER AND MINOU B. BOYER, Appellants, v. JACK L. RUBIN AND JAMIE NELSON RUBIN, Appellees. Opinion No. 20240761-CA Filed October 22, 2026 Third District Court, Silver Summit Department The Honorable Kent R. Holmberg No. 200500187 Rodney R. Parker, Attorney for Appellants Eric P. Lee and Trevor J. Lee, Attorneys for Appellees JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred. CHRISTIANSEN FORSTER, Judge: ¶1 This case was initiated by Paul E. Boyer and Minou B. Boyer (collectively, the Boyers) to quiet title along the boundary line between their property and the adjacent property belonging to Jack L. Rubin and Jamie Nelson Rubin (collectively, the Rubins). The Boyers asserted, among other claims, that they owned a disputed wedge of property between the parties’ houses under a theory of boundary by acquiescence. The Rubins counterclaimed, asking that title to the disputed property instead be quieted in them. ¶2 During the ensuing bench trial, the Boyers moved to amend their pleadings to conform to evidence presented at trial, specifically, to amend their quiet title claim to include an express  Boyer v. Rubin argument that the original survey monuments placed when the property was platted indicated the true boundary line between the neighboring properties and trumped the conflicting course and distance measurements identified on the recorded plat. The trial court denied the motion, reasoning that such a claim had not been tried by the Rubins’ express or implied consent. At the conclusion of the trial, the court determined that the Boyers had failed to prove multiple elements necessary to their boundary by acquiescence claim, and the court therefore quieted title to the disputed property in the Rubins. ¶3 The Boyers now appeal, challenging both the denial of their motion to amend the pleadings as well as the ultimate judgment that, largely as a result of the denial, failed to resolve the monument line issue. We agree that the trial court exceeded its discretion in denying the motion and should have allowed the requested amendment; thus, we reverse the court’s denial of the Boyers’ motion to amend. Further, we determine as a matter of law that the Boyers’ amended claim would have been successful and required title to the disputed property to be quieted in them. We therefore reverse the final decision of the trial court and remand this case with instructions for the court to quiet title to the disputed property in the Boyers.1 BACKGROUND ¶4 The Boyers purchased a subdivision lot in 1990 and began construction of a home on that lot in 1994. 2 At that point, the lot 1. Although the Boyers also appeal the trial court’s ruling on their boundary by acquiescence claim, we need not reach this issue due to the amendment issue being resolved in the Boyers’ favor and providing them with all their requested relief. 2. Technically, the deed recorded in 1990 was only in Paul Boyer’s name, but in a later deed recorded in 1994, Paul Boyer transferred the lot to himself and Minou Boyer. 20240761-CA 2 2026 UT App 160  Boyer v. Rubin to the west of the Boyers’ lot was vacant. As the Boyers built on their property and later installed landscaping, they were guided by survey monuments marking the corners of the lots. Despite the fact that the surveyor’s certificate on the plat attested that the subdivision had “been correctly surveyed and staked on the ground as shown on this plat,” the survey monument marking the southwest front corner of the Boyers’ lot was erroneously placed about 7.2 feet farther west than indicated by the course and distance measurements on the plat. Thus, the Boyers installed landscaping and a portion of their driveway that, according to the course and distance measurements on the plat, encroached on a portion of the neighboring lot to the west. ¶5 A house was eventually built on that neighboring lot in 2004, and the Rubins purchased the property in 2017. In the spring of 2020, the Rubins commissioned a survey of their lot, and the surveyors placed a pin in the Boyers’ driveway, marking the location shown by the course and distance measurements on the plat as the front corner boundary between the properties. In response, the Boyers initiated the instant case. ¶6 In their complaint, the Boyers asserted various claims, including claims of boundary by acquiescence, prescriptive easement, and quiet title. They alleged that the surveyors hired by the Rubins had been “walking all over the Boyer Lot and placing wooden stakes in the Boyers’ landscaping on the Boyers’ side of the [line indicated by the corner monuments].” Under their boundary by acquiescence claim, the Boyers asserted that for thirty years, the owners of the two lots had treated the survey monuments “as defining the boundary line between the two lots.” The Boyers asserted that, consequently, they were “entitled to a judgment quieting title to their real property up to [the monument line] under the theory of boundary by acquiescence.” Alternatively, the Boyers also asserted a claim that they possessed a prescriptive easement over the disputed property as a result of their “occupation, cultivation, and use of property” for over twenty years. Additionally, as a “third cause of action,” the Boyers set forth a quiet title claim, in which they asked the court 20240761-CA 3 2026 UT App 160  Boyer v. Rubin to “adjudge the rights to and interests in any real property that may exist between the legally described boundary of the Boyer Lot and [the monument line].” ¶7 The Rubins thereafter counterclaimed, asserting their own quiet title claim. They described the subject matter of the counterclaim as the portion of their lot, “according to the official plat thereof,” that was “being encroached by the Boyers’ trees and other landscaping, and part of their driveway.” The Rubins requested that the court quiet title to the disputed property in them, decree that the Boyers “have no right or interest in or to the Rubin Lot,” and require “the Boyers to remove the [e]ncroachments and restore the Rubin Lot to its natural condition.” ¶8 The case proceeded to a bench trial. The Boyers called as their first witness a licensed surveyor “specializ[ing] in land boundaries and boundary determinations” (Expert). Expert stated that he had been hired to look at “different potential lines to determine which one, if any, is the boundary of the [Boyers’] property, and then which one may be evidence of an extent of use . . . over time.” In explaining his background and qualifications, he mentioned both the relevance of his mathematical knowledge and the limited applicability of it: “[I]f you’re in construction surveying, math is incredibly important. It’s all about the precision and layouts for construction. But for boundaries, math takes a real backseat because there are many other principles that control over the math, bearings and distances[] yield to monuments, for instance.” And to prepare to give expert testimony in this case, Expert had “researched back to the original subdivision plat” and “the chain of ownership for each one of the lots coming from the original sale from the developer to the original parties who purchased the lots, and then to the current ownership.” ¶9 Expert provided an explanation of “the development process for subdivisions,” “starting from initial concept through approval of the final plat.” Expert stated that toward the end of 20240761-CA 4 2026 UT App 160  Boyer v. Rubin the process, in the “final platting stage,” the individual lots would be staked by a surveyor. Expert testified that for corners in “natural terrain,” like the rear corner monuments in this subdivision, the corners would be marked with rebar driven into the ground and sticking up a few inches out of the ground. Expert testified that the survey markers for the front corners of the lots, however, would usually be temporary markers “because they’re typically torn out during the construction with all the utility excavation and all of the earthwork activity going on.” But later, Expert explained, once the curb and gutter and the asphalt have all been placed, a surveyor returns to place a permanent monument to mark each of the front lot corners—in this case, a lead plug with a tack in it placed in the curbline. ¶10 Expert stated that the monuments are placed on the corners of the lots because “the landowners, as they buy and sell the lots and improve their lots, need to know where their boundaries are.” Expert also testified that when an individual lot is improved, a temporary limits of disturbance (LOD) fence is erected along the monument lines “so the contractors know that all their construction is constrained within . . . the boundaries of this fence.” ¶11 Expert additionally discussed the results he obtained from his own survey of the subdivision, stating that all the installed monuments matched where they were supposed to be according to the plat except for one—the front corner monument between the Rubins’ lot and the Boyers’ lot was “a survey blunder,” being placed 7.2 feet to the west of where it should have been according to the plat. Expert further testified that the front corner monuments for the subdivision were “undoubtedly all set at the same time by the same surveyor” and that the monuments were “required to be in place before the owners start[ed] purchasing lots.” When asked about the location of the trees, bushes, sprinkler heads, and other landscaping features installed by the Boyers, Expert testified, “If you’re talking about the platted boundary, almost every one of the improvements . . . would be on 20240761-CA 5 2026 UT App 160  Boyer v. Rubin the Rubin side of the line. If you go by the monument line, everything’s on the Boyer side of the line.” ¶12 Later, Expert was asked about how surveyors would resolve the issue of a survey blunder, and he responded as follows: Well, the presumption is that the monument will control the location of the boundary, because monuments control over course and distance. . . . [O]ne of the main maxims that we follow . . . is that monuments control over course and distance. Monuments control over the plat. And the reason monuments control is because that’s the locations that are relied upon by the landowners to establish the location of their boundaries, and they make their improvements in accordance with these monuments physically marked on the ground. They can’t see the dimensions. They can’t see the bearings and distances. They can’t see, looking at a piece of paper, where that’s at on the ground. The physical monuments on the ground are what . . . indicate that location. So they’re given that presumption of correctness. When the blunder occurs, if you can discover the blunder before people rely upon it and before the[] . . . passage of time, before the expenditures are made, if you can discover the blunder, then it’s not too late to fix it and say, yeah, the surveyor made a mistake. You fix it. 20240761-CA 6 2026 UT App 160  Boyer v. Rubin But once the parties have relied upon it and have perpetuated that line and constructed in accordance with it, the monuments control in accordance with the presumption. ¶13 As they were resting their case at the end of the fourth day of trial, the Boyers moved to amend their complaint, seeking to amend their quiet title claim “to specifically allege that the two survey pins referenced in their complaint are the original survey monuments that control the boundary under well-established Utah law.” The Rubins objected to the motion, arguing that the requirements for such an amendment were not satisfied. After a hearing on the matter, the trial court denied the motion. The court reasoned that although “the facts underlying” the claim had “been part of this case all along,” allowing the addition of a claim that the monuments formed the actual boundary would be adding a new claim that had not been tried by the Rubins’ express or implied consent. ¶14 At the conclusion of the trial, the trial court ruled in favor of the Rubins. In light of its previous denial of the Boyers’ motion to amend, the court did not rule on the viability of the monument line as the true boundary line between the properties. Nonetheless, a number of the court’s findings touched on that issue, stating that the front lot corners in the subdivision were initially marked by temporary stakes; that after the curb and gutter was installed, “the surveyor came back to set” the lead plugs as front corner monuments; that the purpose of setting such monuments “was to represent, to landowners who buy and sell the lots, the location of the lot boundaries”; and that “[a]ll four corner monuments for the Boyer Lot were likely set by the original surveyors before the Boyers purchased the Boyer Lot.” In ruling on the boundary by acquiescence claim, the court determined that the Boyers had not proven certain elements necessary for success on that claim, and the court ruled that, therefore, the Rubins were “entitled to a decree quieting title in them.” ¶15 The Boyers now appeal. 20240761-CA 7 2026 UT App 160  Boyer v. Rubin ISSUES AND STANDARDS OF REVIEW ¶16 On appeal, the Boyers argue that the trial court erred in denying their motion to amend the pleadings pursuant to rule 15(b) of the Utah Rules of Civil Procedure, which was based on a determination that the monument line issue had not been tried by the Rubins’ implied consent. “The trial court’s interpretation of rule 15(b) should be reviewed for correctness, but, because the trial court’s determination of whether the issues were tried with all parties’ implied consent is highly fact intensive, we grant the trial court a fairly broad measure of discretion in making that determination under a given set of facts.” Pilot v. Hill, 2019 UT 10, ¶ 9, 437 P.3d 362 (quotation simplified). ¶17 Relatedly, the Boyers challenge the final judgment and its failure to resolve the monument line issue in their favor and, resultingly, quiet title to the disputed property in them. They argue that the trial court’s factual findings provide the necessary basis to allow this court to resolve the legal issue on appeal. When the facts are not in dispute and only purely legal questions remain, this court may decide those legal questions as a matter of law in the first instance. See State v. Houston, 2015 UT 40, ¶ 27, 353 P.3d 55. ANALYSIS I. The Motion to Amend the Pleadings ¶18 The Boyers argue that, even if their pleadings did not sufficiently raise the issue of whether “the survey monuments established the true boundary between the lots,” the trial court erred in denying their motion to amend their pleadings “to conform to the evidence and to conform to claims that were tried by consent.” We agree. ¶19 Pursuant to rule 15(b) of the Utah Rules of Civil Procedure, “[w]hen an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if 20240761-CA 8 2026 UT App 160  Boyer v. Rubin raised in the pleadings.” Utah R. Civ. P. 15(b)(1). The rule further provides, “A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue.” Id. ¶20 “Implied consent to try an issue may be found where one party raises an issue material to the other party’s case or where evidence is introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation simplified). However, “when evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” Id. (quotation simplified); see also Colman v. Colman, 743 P.2d 782, 785 (Utah Ct. App. 1987) (“A trial court may not base its decision on an issue that was tried inadvertently.” (quotation simplified)). “Thus, the test for determining whether pleadings should be deemed amended under [rule] 15(b) is whether the opposing party had a fair opportunity to defend and whether it could offer additional evidence if the case were retried on a different theory.” Colman, 743 P.2d at 785 (quotation simplified). ¶21 Here, even accepting the Rubins’ view that the Boyers’ initial claim for quiet title was limited to their theory of boundary by acquiescence—despite the fact that the two were set out as separate claims in the complaint—we conclude that the Rubins consented to try a claim of quiet title based on the monuments because they essentially raised the issue in their counterclaim and they also failed to object when substantial evidence was presented at trial regarding the original monument placement and the subsequent impact and implications of those monuments. ¶22 As part of their initial filings in this case, the Rubins asserted a quiet title counterclaim, alleging that their lot— “according to the official plat thereof”—was “being encroached by the Boyers’ trees and other landscaping, and part of their 20240761-CA 9 2026 UT App 160  Boyer v. Rubin driveway,” and asking the trial court to declare that the Boyers “have no right or interest in” that portion of property. Thus, the Rubins were asking the court to rule that the disputed property— the area between the monument line and the property line as indicated by the course and distance measurement on the plat— belonged to them. Such a ruling was simply not possible without the court making a determination as to which line constituted the effectual property line between the lots. ¶23 Additionally, and more importantly, substantial evidence presented at trial concerned the location and impact of the monuments placed by the original surveyor. Expert stated that one of the reasons he was hired was to determine which of multiple possible lines was the true boundary of the Boyers’ property. Additionally, Expert testified at length regarding how the monuments came to be and the impact of the monuments generally. Expert stated that “for boundaries, math takes a real backseat because there are many other principles that control over the math, bearings and distances[] yield to monuments, for instance.” Expert discussed in some detail “the development process for subdivisions” and the various steps leading up to the installation of permanent monuments on the lot corners. Expert explained that these corner monuments are placed because “the landowners, as they buy and sell the lots and improve their lots, need to know where their boundaries are” and that these corner monuments will be followed for the installation of the LOD fences that ensure construction is contained within an individual lot. ¶24 Expert then spoke specifically as to this subdivision, explaining why he concluded that the front corner monuments for the subdivision were “undoubtedly all set at the same time by the same surveyor” and stating that they were “required to be in place before the owners start[ed] purchasing lots.” He also testified that the front corner monument between the Boyers’ lot and the Rubins’ lot did not match the course and distance measurement on the plat and that the disputed property fell between those two representations: “If you’re talking about the platted boundary, almost every one of the improvements . . . would be on the Rubin 20240761-CA 10 2026 UT App 160  Boyer v. Rubin side of the line. If you go by the monument line, everything’s on the Boyer side of the line.” Expert also explained how survey blunders are typically resolved, stating, “Well, the presumption is that the monument will control the location of the boundary, because monuments control over course and distance. . . . [O]ne of the main maxims that we follow . . . is that monuments control over course and distance. Monuments control over the plat. And the reason monuments control is because that’s the locations that are relied upon by the landowners to establish the location of their boundaries . . . .” ¶25 Thus, Expert testified in several respects about the monuments, including their origins, their purpose, and their superior status to a course and distance measurement on the plat. And the Rubins made no objection to this information as bearing on subjects outside of the pleadings. We therefore agree that they implicitly consented to trial of the claim regarding the monument line being the effectual boundary line. ¶26 The Rubins, contesting their implied consent, argue that they did not object to evidence concerning the monument line because “the monument line was central to the Boyers’ boundary by acquiescence and prescriptive easement claims” and, therefore, evidence regarding that line “went to claims stated in the pleadings from day one.” They argue that the Boyers’ evidence regarding the monuments was simply presented to support the Boyers’ theory that the LOD fence was placed along the monument line during the development of their lot and that, consequently, their landscaping was installed according to that line. We are not persuaded. ¶27 The Rubins’ argument would be considerably more persuasive if the monument evidence had been presented at trial simply to argue that there existed monuments that guided the development of the Boyers’ lot and the installation of their landscaping and that served as the line that the parties acquiesced to as the boundary. But the monument evidence at trial went much further. There was significant evidence presented that these 20240761-CA 11 2026 UT App 160  Boyer v. Rubin monuments were placed by the original surveyor and that such monuments are controlling when they conflict with measurements on the plat. Expert testified as to how the developmental process of the subdivision would have progressed, stated that his investigation of the relevant documents and of the other front corner monuments in the subdivision clearly indicated that the monuments at issue here were placed by the original surveyor, and made several references to monuments controlling over conflicting course and distance measurements on a plat. Such facts are irrelevant to a claim of boundary by acquiescence. The Boyers’ boundary by acquiescence claim simply required proof that there was some visible line that the parties acquiesced to as the boundary line for the necessary amount of time; the history of the markers the line was based upon and how those markers came to be, as well as the validity of those markers, was of no import to that claim. See RHN Corp. v. Veibell, 2004 UT 60, ¶ 23, 96 P.3d 935 (“The elements of boundary by acquiescence are (i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners.” (quotation simplified)). And indeed, Expert’s repeated assertions that the monument line would trump course and distance measurements on the plat— thus indicating that the monument line was the true boundary line—were actually incongruous with the claim of boundary by acquiescence, which is used to assert a claim to land by a party who is not the owner of record. Thus, when the presentation of this evidence was made without objection, the Rubins implicitly consented to try the Boyers’ claim that the monument line was the true boundary line between the properties. Accordingly, the trial court exceeded its discretion in determining otherwise and denying the motion to amend the pleadings. II. Quiet Title ¶28 In addition to their argument about the motion to amend the pleadings, the Boyers have analyzed the related question— unresolved by the final judgment—of whether the monument line 20240761-CA 12 2026 UT App 160  Boyer v. Rubin does, indeed, constitute the true boundary between the properties and require that title to the disputed property be quieted in them. Likewise, the Rubins have addressed this issue in their responsive brief. Furthermore, what remains to be decided on this issue is purely a legal question because any related factual matters were resolved by the trial court in its findings. For these reasons, and in the interest of judicial economy, we choose to resolve this issue on appeal. See State v. Houston, 2015 UT 40, ¶ 27, 353 P.3d 55 (“When the pertinent facts are undisputed and a purely legal question with respect to which the trial court has no discretion remains to be decided, nothing is to be gained by remanding the case to the trial court.” (quotation simplified)). ¶29 “It is a familiar rule of law that, in case of doubt as to the boundary lines, monuments control courses and distances. . . . The ground of the rule is that mistakes are deemed more likely to occur with respect to courses and distances than in regard to objects which are visible and permanent . . . .” Bullion Beck & Champion Mining Co. v. Eureka Hill Mining Co., 103 P. 881, 884 (Utah 1909) (quotation simplified). “Lines actually marked or surveyed and capable of identification will, according to well- settled principles of law, control calls for course and distance in the determination and location of a boundary.” Id. (quotation simplified); see also Washington Rock Co. v. Young, 80 P. 382, 386 (Utah 1905) (“[W]herever corner monuments of [the original] survey can be found in place, they must control over the courses and distances indicated by the field notes, and over any other calls in such notes. This is a binding rule.”). ¶30 The Rubins argue that this rule and the related case law upon which the Boyers rely are not applicable here because they specifically address surveys done by government surveyors and do not apply to privately hired surveyors. But we see no authority supporting the assertion that such a distinction is relevant to the analysis. Although the Rubins rely on language from Henrie v. Hyer, 70 P.2d 154 (Utah 1937), as supporting a differentiation between government and private surveyors, we do not see that the quoted language supports the Rubins’ position. In Henrie, our 20240761-CA 13 2026 UT App 160  Boyer v. Rubin supreme court stated that official government surveys were “not open to attack between private parties in disputes over boundary lines,” id. at 157, but that was true not simply because the survey at issue was performed by the government but, rather, because it was the original survey, see id. (“It is conceded, as it must be, that the original corners as established by the government surveyors, if they can be found, or the places where they were originally established, if that can be definitely determined, are conclusive on all persons owning or claiming to hold with reference to such survey and the monuments placed by the original surveyor without regard to whether they were correctly located or not.” (emphasis added)). ¶31 Thus, the Rubins point us to no authority suggesting that the general rule does not apply to original surveys conducted on behalf of private parties. And indeed, the rule seems to be consistently stated as applying to original monuments in general, not just those set by government surveyors. See 11 C.J.S. Boundaries § 181 (2026) (“In actions for the judicial determination of boundaries, monuments are given a preferential presumption over a metes-and-bounds description, and are presumed to have existed at the time of the execution of the instrument . . . .”); 1 Joyce D. Palomar, Patton and Palomar on Land Titles § 152 (3d ed. 2025) (“In case . . . of a discrepancy between the survey, as shown by the monuments thereof, and the field notes and plat, the survey controls. . . . [T]he statements as to conflicts between monuments and plats apply also to conflicts between the monuments marking a surveyed line and the description thereof in a course and distance description; the monuments prevail over calls for courses and distances.”). Accordingly, we decide it appropriate to rely on the well-established monument rule to hold that between adjacent landowners whose common boundary is defined by a single plat, the monuments placed by the original surveyor of the plat prior to the sale of any lots control over conflicting descriptions on the plat. ¶32 The trial court’s judgment included findings indicating that it was persuaded by Expert’s testimony of both how the 20240761-CA 14 2026 UT App 160  Boyer v. Rubin monuments came to be in their current locations and that the purpose of such monuments “was to represent, to landowners who buy and sell the lots, the location of the lot boundaries.” 3 Specifically, the court found that the subdivision was platted in 1989, that monuments were established to mark lot corners before the final plat approval (which also occurred in 1989), and that the two lots at issue were originally purchased in 1990. Thus, the court further found that the monuments upon which the asserted monument line was based “were likely set by the original surveyors before the Boyers purchased the Boyer lot.” Applying these findings to the rule we have set forth, we determine that the monuments placed by the original surveyor establish the true western boundary of the Boyers’ property and that the disputed area is part of the Boyers’ lot, and we therefore order title to the disputed area to be quieted in the Boyers. CONCLUSION ¶33 The trial court exceeded its discretion in determining that the issue of whether the monument line was the boundary between the parties’ lots was not tried by the implied consent of the parties. We therefore reverse the court’s denial of the Boyers’ motion to amend their pleadings. In addressing the monument issue on its merits, we determine that the monuments control under established Utah law, and we remand this case with instructions for the court to quiet title to the disputed property in the Boyers. 3. Moreover, the plat’s certification that the subdivision had been “correctly surveyed and staked” indicates that the monuments installed by the surveyor were meant to indicate the boundaries of the lots as depicted on the plat, and this reinforces the propriety of our applying the rule that monuments of an original survey control over a conflicting metes and bounds or distance description. 20240761-CA 15 2026 UT App 160