                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 39760

JIMMY SIMS and SUSAN C. SIMS, f/k/a                  )
SUSAN C. DODGE, husband and wife,                    )
                                                     )
                                                             April 2013 Term
     Plaintiffs-Respondents,                         )
                                                     )
                                                             2013 Opinion No. 64
v.                                                   )
                                                     )
                                                             Filed: May 23, 2013
EUGENE THOMAS DAKER and ELDA                         )
MAE DAKER, husband and wife,                         )
                                                             Stephen W. Kenyon, Clerk
                                                     )
   Defendants-Appellants.                            )
______________________________________               )

       Appeal from the District Court of the Second Judicial District of the State of
       Idaho, Clearwater County. Hon. Michael J. Griffin, District Judge.

       The judgment of the district court is affirmed.

       Mark S. Snyder, Lewiston, for appellants.

       Dale O. Cox, Orofino, for respondents.
                                   _____________________

J. JONES, Justice.

       This is a boundary line dispute between neighboring property owners in Clearwater
County. Jimmy and Susan Sims brought suit against Eugene and Elda Daker, claiming a fence
line between their properties constituted a boundary by agreement. Following a bench trial, the
district court ruled in favor of the Simses. We affirm.
                                        I.
                         FACTUAL AND PROCEDURAL HISTORY
       When this case arose, the Dakers and the Simses were adjoining property owners on what
is known as “Greer Grade” in Clearwater County. The Dakers acquired their property, consisting
of approximately 103 acres, from Craft Wall of Idaho, Inc., in 1983. The Sims property,
consisting of approximately 12 acres, was acquired by Susan Sims from Elgin and Claudia
Larson in 1999. The Sims property borders the east side of the Dakers’ property.



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       According to the deeds by which both parties acquired their properties, the common line
between the NW¼NE¼ and the NE¼NE¼ of Section 11 (the “Deeded Line”) is the boundary
between the two properties. The Dakers claim ownership to the Deeded Line, which is their east
boundary. The Simses claim ownership of an approximately three-acre parcel located to the west
of the Deeded Line (The Parcel). The Parcel is roughly triangular in shape with the Deeded Line
being the east boundary, a fence line that runs from the Deeded Line to a switchback on
Highway 11 forming the northwest border, and the State Highway 11 right-of-way forming the
southwest border.
       This dispute arose in late 2009, when Randy Hollibaugh, who was then leasing the
Dakers’ property, hired a surveyor to locate their east boundary. The survey revealed that the
Parcel was located entirely within the legal description in the Dakers’ deed. When the Simses
learned of the survey, they contacted the Dakers, who lived out of state. Jimmy Sims listened in
on a phone call between his wife and Elda Daker and described it at trial as follows:
       A. [Jimmy Sims] Ms. Daker told me that Randy [Hollibaugh] had a lease on her
       land, verbal lease, for $1,000 a year. She told me that she had no knowledge of
       him surveying her land, and that she did not give him permission to survey that
       land. And Ms. Daker on that telephone call told me at least twice or three times
       that she and her husband bought that property, the entire Daker place, by fence
       line. She said she and her husband—
       Q. [Dakers’ Counsel] You said by fence line?
       A. Yes, sir. She bought it by fence line. And she said that she and her husband
       had walked the fence lines on that first conversation . . . .

Jimmy Sims further testified that during subsequent calls between Elda Daker and the Simses,
Ms. Daker “told us a minimum of four times that the fence lines were the boundary lines.”
       After the survey was completed, Hollibaugh installed a fence on the Deeded Line,
precipitating this action. The Simses sued in March of 2010, seeking to quiet title to the Parcel.
Hollibaugh was originally a party to the action, but when he later bought the Dakers’ land,
excepting the Parcel, he was dismissed from the case. The parties filed cross-motions for
summary judgment but both motions were denied by the district court.
       After a bench trial, the district court issued its Findings of Fact and Conclusions of Law.
The court found:
       No one knows when the fence was built. No one knows why the fence was built,
       or why it was built in the location where it was built. There is no evidence as to
       who owned the property on either side of the fence when it was built, or if the


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         same person owned the property on both sides of the fence at the time it was built.
         There is no evidence to disprove that the fence was intended to be a boundary.
Thus, the district court concluded that the “boundary between the Daker and Sims property was
uncertain,” and that “there was an implied agreement that the fence line . . . was built as a
boundary between the two properties.” Therefore, it “further conclude[d] that the [Simses] have
proven by clear, satisfactory, and convincing evidence that the old fence line . . . is the boundary
between their property and the property owned previously by the Dakers, and now owned by the
Hollibaughs.” The district court therefore entered judgment quieting title to the Parcel in favor
of the Simses. The Dakers filed a timely appeal.
                                              II.
                                      ISSUES ON APPEAL
   I.       Did the district court err in determining that the fence line constituted a boundary by
            agreement?
   II.      Are the Simses entitled to attorney fees on appeal?
                                              III.
                                          DISCUSSION
   A. Standard of Review.
         On appeal from a court trial, this Court limits its review “to a determination of whether
the evidence supports the trial court’s findings of fact, and whether those findings support the
conclusions of law.” Watkins Co., LLC v. Storms, 152 Idaho 531, 535, 272 P.3d 503, 507 (2012).
In doing so we “liberally construe the trial court’s findings of fact in favor of the judgment
entered, as it is within the province of the trial court to weigh conflicting evidence and testimony
and judge the credibility of witnesses.” Id. We “will not disturb findings of fact on appeal that
are supported by substantial and competent evidence, even if there is conflicting evidence at
trial.” Id. “[C]onclusions of law are freely reviewed by this Court, drawing its own conclusions
from the facts presented in the record.” Id.
   B. The district court correctly determined that the fence line constituted a boundary by
      agreement.
         The district court concluded that the fence line was the boundary between the Simses’
and Dakers’ properties and consequently held that the Parcel belonged to the Simses. On appeal,
the Dakers argue that the fence does not constitute a boundary by agreement because the Simses’
“use of the disputed property was not of a nature to give notice of the fence.” The Dakers further
note that the fence line “runs at increasing obtuse angles” from the Deeded Line. Thus, they


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argue, “where the fence deviates immediately and radically from the line called in the deeds and
has been only a partial fence for at least the last decade, it is not reasonable to infer” that the
fence constitutes a boundary by agreement. In response, the Simses contend that substantial and
competent evidence supports the district court’s factual findings that the fence was a boundary
by agreement. As the Simses put it, “[t]here was no conflicting evidence whatsoever to the
Court’s findings that the fence was treated by all parties concerned as the boundary line between
the [Simses’] real property and the Daker property.” Thus, they argue that the fence should mark
the boundary of their property and that title to the Parcel was correctly quieted in their name.
       The doctrine of boundary by agreement is a well-established fixture of Idaho
jurisprudence. We explained in Morrissey v. Haley that:
       The doctrine of boundary by agreement is well established in this state: “[w]here
       the location of a true boundary line on the ground is unknown to either of the
       parties, and is uncertain or in dispute, [the] coterminous owners [of the parcels
       involved] may orally agree upon a boundary line. When such an agreement is
       executed and actual possession is taken under it, the parties and those claiming
       under them are bound thereby. In such circumstances, an agreement fixing the
       boundary line is not regarded as a conveyance of land from one to the other, but
       merely the location of the respective existing estates and the common boundary of
       each of the parties.”
124 Idaho 870, 872–73, 865 P.2d 961, 963–64 (1993) (quoting Wells v. Williamson, 118 Idaho
37, 41, 794 P.2d 626, 630 (1990)).
       A boundary by agreement thus “has two elements: (1) there must be an uncertain or
disputed boundary and (2) a subsequent agreement fixing the boundary.” Luce v. Marble, 142
Idaho 264, 271, 127 P.3d 167, 174 (2005). “[I]f the location of the true boundary is unknown to
either of the parties, and is uncertain or in dispute, such coterminous owners may agree upon a
boundary line.” Id. “[I]gnorance as to what is later deemed the true boundary” is sufficient to
show uncertainty. Morrissey, 124 Idaho at 873, 865 P.2d at 964. Regarding the element of
agreement, “[a]n agreement can be implied from the surrounding circumstances and conduct of
the landowners,” or inferred from “[a] long period of acquiescence.” Marble, 142 Idaho at 271,
127 P.3d at 174. “Once a boundary line has been fixed under the doctrine of agreed boundary,
that boundary is binding upon successors in interest who purchase with notice of the agreement.
The general rule is that one purchasing property is put on notice as to any claim of title or right
of possession which a reasonable investigation would reveal.” Id.



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       With particular regard to fences, 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 Inv., LLC v. Cornwall, 149 Idaho 9, 14, 232 P.3d 330,
335 (2010). Put somewhat differently, a long-established fence leads to two presumptions:
       For nearly a century it has been the law of this state that evidence of a long
       established fence creates two presumptions. 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.

Luce, 142 Idaho at 271–72, 127 P.3d at 174–75 (citations and quotations omitted).
       The district court’s findings and conclusions are in accord with these holdings.
Substantial and competent evidence established that the fence had been observed as the boundary
line between the properties for many years. There was no evidence to the contrary.
       The Simses testified that before they purchased the property from the Larsons, the
Larsons took them past the western boundary into the Parcel, and walked them along a fence on
its western edge, which they represented as the “boundary fence.” The Simses treated the fence
as their property’s western boundary and the Parcel as their own—they spent time there, cleared
brush up to the fence line, and pruned and fertilized the Parcel’s apple trees.
       Alvin Smolinski leased the Daker property from the time they acquired it until about
2004. Previous to that, he had leased the property from at least two prior owners and had
performed repair work on the fence for about 51 years. Smolinski testified that he “considered
the [boundary] line was the fence.” He went on:
       Q. [Dakers’ Counsel] Do you consider the fences in that area as being the
       boundary lines?
       A. [Smolinski] It has ever since I can remember.
       Q. How long is that?
       A. Well, I would say ever since I’ve been 15 I’ve fixed [the] fence off and on,
       then I fixed it steady since probably ’67—1967.
       Q. Since you’re not a lady I guess I can ask you, how old are you now?
       A. 66.


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        Q. So 51 years, then?
        A. Yeah, as far as I know.

Smolinski further testified that logging occurred on the respective sides of the fence, but that the
loggers would not cross it. He added that there was no gate allowing access between the
properties, that the fence was in the same place “all those years,” and reiterated that “as far as he
knew” the fence was the boundary line between the Simses’ and Dakers’ properties.
        Michael Kinzer, who lived next to the Simses, testified that the fence had existed since at
least 1975, that the landowners on either side kept “critters” on their respective sides of the
fence, and that there was logging on at least one side of the fence.
        Linda Beard testified that her parents had owned the Sims property and that she had lived
there with them from “sixth grade until twelfth grade.” She testified that her family thought the
fence line constituted “the boundary lines of [the] property.” She further testified that her family
kept livestock on their property, up to the fence. However, Ms. Beard never identified her
parents or stated the timeframe in which she resided on the property. In its findings, the district
court concluded that “Linda Beard’s parents owned the Sims’ property sometime prior to the
Larsons.” There is no evidence in the record to support this conclusion and, therefore, we
disregard Ms. Beard’s testimony. 1
        Even disregarding Ms. Beard’s testimony, there is substantial, competent evidence that
the fence on the western side of the Parcel fits within the formula set forth by the Flying Elk
Court―it was treated as the property line for many years and there is no evidence either as to
why it was built or to disprove that it was intended to be the boundary between the Simses’ and
Dakers’ land. 149 Idaho at 14, 232 P.3d at 335. Smolinski testified that the fence has been in
place for over 50 years, and that it appeared “old” when he first saw it. Neither he, nor anyone
else who testified, knew who built it, or why it was built. Finally, the testimonies of Smolinski,
Kinzer, and the Simses all indicated that the fence was treated as a boundary between the
properties, and that the various owners of the Simses’ property treated the Parcel as theirs. There
was no evidence, beyond the descriptions in the deeds themselves, that disproved this.




1
 The Simses submitted an affidavit of Ms. Beard in support of their motion for summary judgment. In that affidavit,
Ms. Beard stated that the Larsons were her parents and that they had purchased the property in late 1974 or early
1975. However, this affidavit is outside of the trial record and not part of the evidence.

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       The only witness who did not consider the fence to be the boundary line was Hollibaugh,
who leased the Daker property after Smolinski. Hollibaugh leased the land for about three years
and was in possession when he commissioned the survey. He testified:
       Q. [Dakers’ counsel] It’s a fence that’s nowhere near the [actual] boundary line?
       A. [Hollibaugh] No. And I have always known where the corners were so I never
       assumed it would be the boundary.
       Q. Did you think that this fence line that’s in dispute was the boundary line for the
       Daker’s property?
       A. No. I’ve always known where the corners were. I just—it’s so brushy in there I
       just didn’t want to ever have to go in there and brush it out too bad.

However, Hollibaugh conceded on cross-examination that he did not know where the actual
boundary line was and he did not address the issue as to whether others, particularly the present
and past abutting property owners, regarded and treated the fence as the property boundary.
       However, the Dakers argue that since the fence deviates so radically from the Deeded
Line, the Court should hold, as it did in Luce, that it was unreasonable to assume a boundary by
agreement. In Luce, the disputed parcel of land was an “irregularly shaped” 0.34-acre parcel that
jutted out from the lower western edge of the plaintiff’s property. 142 Idaho at 268, 127 P.3d at
172. This Court noted that, in “prior cases, we have applied the [presumption of a boundary by
agreement] when it was reasonable to assume from the facts on the ground that at some prior
point landowners agreed or acquiesced to a certain location as the boundary between their
properties.” Id. at 272, 127 P.3d at 175. By contrast, this Court noted, “the shape of [the 0.34-
acre parcel] is so irregular and encompasses such a large portion of the Marble property that such
an assumption would be unreasonable.” Id. Without the presumption and without any evidence
that the parcel “settled an actual disagreement or uncertainty,” we held that Luce could not
establish her rights to the parcel via a boundary by agreement. Id.
       We decline to apply the Luce holding for three reasons. First and foremost, although the
fence here does skew a great deal from the Deeded Line, such a deviation has not prevented this
Court from finding a boundary by agreement in the past. For example, in Flying Elk, this Court
found a boundary by agreement despite these facts:
       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



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       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.
149 Idaho at 12, 232 P.3d at 333. Second, while the Dakers point out the course of the fence and
how it deviates from the Deeded Line, they do not particularly present evidence as to the “shape”
of the Parcel, which was the focus of the Luce holding. Third, and of least importance, in Luce
we expressed concern that the disputed parcel encompassed “a large portion” of the property
purchased by the defendants. Id. There, it did—the disputed parcel was approximately 0.34
acres, whereas the defendants owned a total of 1.34 acres. Id. at 268–69, 127 P.3d at 171–72.
Here, the Parcel is approximately three acres of the Dakers’ approximately 103 acres. The Parcel
is not a large portion of the Daker parcel.
       The record contains no evidence indicating that it is unreasonable to assume a boundary
by agreement based on the fence line. Substantial and competent evidence supports the decision
of the district court and we therefore affirm.
   C. The Simses are not entitled to attorney fees on appeal.
       The Simses stated the following “Additional Issue[] Presented on Appeal” in their
briefing: “Mr. and Mrs. Sims claim attorneys fees on appeal based upon Section 12-121, Idaho
Code in conjunction with Rule 54(e)(1), Idaho Rules of Civil Procedure and Idaho Appellate
Rule 41.” However, they never developed this argument, and in fact never mentioned attorney
fees again. This Court has held that, “[t]he mere citation of Idaho Code § 12-121, even by a
respondent, without providing any argument, is insufficient for an award of attorney fees on
appeal.” Bagley v. Thomason, 149 Idaho 799, 805, 241 P.3d 972, 978 (2010); see also Peterson
v. Peterson, 153 Idaho 318, 325, 281 P.3d 1096, 1103 (2012).
       Here, the Simses fleetingly cited I.C. § 12-121, provided no argument to support their
claim for attorney fees, and abandoned the issue, never to return to it. They are therefore not
entitled to attorney fees on appeal.
                                                     IV.
                                                 CONCLUSION
       We affirm the district court’s judgment quieting title in favor of the Simses. The Simses
are awarded their costs on appeal.


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



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