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&n= bsp; &nbs= p; = &n= bsp; &nbs= p; = ENTRY ORDER
= &n= bsp; &nbs= p; SUPREME COURT DOCKET NO. 2004-494
= &n= bsp; &nbs= p; = &n= bsp; MAY TERM, 2005
Jeanette Champagne and Gene Champagne }
v. = &n= bsp; &nbs= p; = &n= bsp; } = Grand Isle Superior Court
Estate of Edward Gardner and= &n= bsp; &nbs= p; }
Una and David Gardner &= nbsp; &nb= sp;  = ; } = DOCKET NO. 2-1-99 Gicv
Trial Judge: Ben W. Joseph
= ; &= nbsp; &nb= sp; In the above-entitled cause, the Clerk will enter:
Jeanette and Gene Champagne appeal from the trial court’s order, on remand, denying their claim that they had acquired title to property owned by the Gardners through adverse possession and acquiescence. We affirm.
The underlying facts in this ongoing boundary dispute are set forth in our pre= vious entry order. See Champagn= e v. Gardner, Docket No. 2003-285 (Vt. Feb. 13, 2004). In that case, we affirmed the tri= al court’s interpretation of the Gardners’ deeds as to the southe= rn boundaries of their property, but we reversed and remanded for additional findings on the Champagnes’ claim that they had acquired title to ce= rtain portions of the Gardners’ property though acquiescence and adverse possession. We explained tha= t the trial court failed to address the Champagnes’ claim that from 1965 t= o the present, they and their predecessors in title had openly, notoriously, and continuously claimed and occupied property up to the southern rear line of= the Gardner lots, a line established by pins placed by the original owner, Mr. Montani, and reflected on a survey conducted by Mr. Robenstein (hereinafter referred to as the “Robenstein line”).
On remand, the trial court made the following findings. Mr. Montani previously owned the property currently owned by the Champagnes and the Gardners. He sold the Gardner lots in 1965.= At that time, he placed pins alon= g the lots’ southern boundaries. Almost all of these pins are now missing. The only pin along the southern boundaries of the Gardner lots that is still in place is located near the southwest corner of the lot now owned by Una Gardner. Mr. Montani believed that the sou= thern boundaries of the Gardner lots were those boundaries later depicted on the Robenstein survey. The Champagnes purchased property immediately south of the Gardner lots in 1996. The disputed property = lies along the southern boundaries of the Gardner lots, and it varies in width = from approximately four to eleven feet, running east to west.
Between 1930 and 1996, Mr. Montani operated a vegetable farm on his property. Between 1965 and 1996, he sometim= es planted vegetables close to the southern boundaries of the present Gardner lots. There were some years = in which Mr. Montani did not plant anything close to the Robenstein boundaries because the ground along the southern sides of the Gardner lots was too we= t for spring planting. Mr. Montani= never planted crops right up to the Robenstein boundaries because he needed room= to turn his tractor around on his side of the lines while he was plowing. There were some years when Mr. Mo= ntani cut the grass along the Robenstein boundaries and some years in which he d= id not. In 1995, there was a pi= pe that marked the southeast corner of the David Gardner lot in a spot consistent = with the deed description for this property and with a survey that had been pre= pared for the Gardners by Rice. Af= ter the Robenstein survey was conducted in April 1996, the pipe was moved north in= to the middle of a ditch that David Gardner had dug along the southern edge o= f his lot. There are a large numbe= r of trees that stand in the disputed strip behind the David Gardner property.<= span style=3D'mso-spacerun:yes'>
June 1996, most of the parties in this case executed an agreement entitled
“Notice of Continued Permission to Utilize Land” that pertaine=
certain “strips of land” between the lots that the parties
own. The Champagnes drafted =
agreement and presented it to the Gardners. Una Gardner signed the agreement =
behalf of her husband but she refused to sign the document herself.
Based on its findings, the court concluded that the Champagnes had not demonstra= ted that they had acquired title to the disputed property through adverse possession or acquiescence. = The court stated that the Champagnes’ adverse possession claim was based= on an allegation that Mr. Montani had actually used the disputed strips of la= nd for the required fifteen year-period.&nbs= p; It found that there were grown trees inside the disputed strip of l= and, which showed that there were certainly some years before 1996 when Mr. Mon= tani did not plow or plant right up to the Robenstein boundaries. The court also pointed to Mr. Montani’s testimony that he had not always used the land. The court thus concluded that the Champagnes had not produced sufficient evidence to establish title by adve= rse possession. The court also r= ejected the Champagnes’ assertion that Una Gardner had acquiesced to the Robenstein boundaries because her husband had signed the 1996 Notice. The court reiterated that Una Gar= dner was not bound by the 1996 Notice. The Champagnes appealed.
The Champagnes first challenge the trial court’s adverse possession conclusion. With respect to property behind Una Gardner’s lot, they argue that the court erred in concluding that Mr. Montani had not actually used or possessed the land up= to the Robenstein line because he had not plowed or planted the ground right = up to the Robenstein line. The Cha= mpagnes maintain that the portion of the farmland used by Mr. Montani to turn his tractor was as “possessed” by him as the portion of farmland t= hat he used to plant vegetables. The Champagnes also assert that the court erred in concluding that because the= re were years in which the land was too wet for spring planting, Mr. Montani = did not make “continuous” use of the disputed land for fifteen years. They argue that to be “continuous,” Mr. Montani did not need to use the property constantly, he needed only to make such use of the land as would an average owner, taking into account the nature and condition of the property.
To acquire title to a piece of property through adverse possession, a party m= ust establish open, notorious, hostile, and continuous possession of the prope= rty throughout the statutory period of fifteen years. Lysak v. Grull, 174 Vt. 52= 3, 526 (2002) (mem.); 12 V.S.A. § 501. The party claiming adverse possession bears the burden of establish= ing that these requirements are satisfied.&nb= sp; Lysak, 174 Vt. at 526. “Adverse possession is a mixed question of law and fact.” MacDonough-W= ebster Lodge No. 26 v. Wells, 2003 VT 70, ¶ 17, 175 Vt. 382, 834 A.2d 25. We view the trial court&= #8217;s factual findings in the light most favorable to the prevailing party below= , and we will not set aside the findings unless they are clearly erroneous. Id. Our review of the trial courtR= 17;s legal conclusions is nondeferential and plenary. Id.
We find the Champagnes’ arguments without merit. We stated in N.A.S. Holdings, = Inc. v. Pafundi that “[a] = claim of adverse possession that proceeds under bare claim of right extends only= to that property which the claimant has actually occupied.” 169 Vt. 437, 441 (1999) (discussi= ng difference between adverse possession claims based on “actual possession” and those based on “constructive possession,”= ; and stating that “such categorization is a threshold inquiry necessary t= o the assessment of the claimant’s possessory acts”); see also Cm= ty. Feed Store, Inc. v. Northeastern Culvert Corp., 151 Vt. 152, 156 (1989) (“In the absence of color of title . . . and where a lot has no defi= nite boundary marks, adverse possession can only extend as far as claimant has actually occupied and possessed the land in dispute.”). The trial court found that Mr. Mo= ntani had not actually used the disputed property throughout the fifteen-year pe= riod, and this finding is supported by the record.
With respect to the Una Gardner lot, the court found that Mr. Montani had never plowed “right up to” the Robenstein boundaries, nor had he use= d the ground close to the boundaries every year. The court also found no ind= ication as to how often Mr. Montani had actually farmed in the disputed strip. The court did state that Mr. Mont= ani never planted crops right up to the Robenstein boundaries because he needed room to turn his tractor around on his side of the line. We do not agree, however, with the Champagnes’ contention that this demonstrates that Mr. Montani openly “occupied” this portion of the property. See Darling v. Ennis, 138 = Vt. 311, 313 (1980) (“The tenant must unfurl his flag on the land, and k= eep it flying so that the owner may see, if he will, that an enemy has invaded= his dominions and planted his standard of conquest.”) (citation and elli= pses omitted). The unreported out-of-state decision cited by the Champagnes does not persuade us otherwi= se. See Dreselinski v. Bugary,= 1992 WL 190162, *1 (Ohio Ct. App. 1992) (“possession” established w= here evidence showed that fence had initially been in place, and majority of fe= nce was still standing and fence line had been openly established and maintain= ed as a tractor path). The trial c= ourt’s findings support its conclusion that the Champagnes failed to demonstrate adverse possession.
The Champagnes next argue that the trial court did not properly consider their acquiescence claim. They ass= ert that acquiescence can be shown in one of two ways: through a writing that satisfies the statute of frauds or through passive compliance or acceptanc= e for a fifteen-year period. The Champagnes argue that the 1996 Notice established David Gardner’s acquiescence in the Robenstein line, and they maintain that the court overlooked their argument that they had established acquiescence though passive compliance.
We reject these arguments. To establish a boundary line by acquiescence, the Champagnes needed to meet t= he requirements of the statute of frauds or adverse possession. Hadlock v. Poutre, 139 Vt.= 124, 127 (1980); see also Haklits v. Oldenburg, 124 Vt. 199, 204 (1964) (“[A]cquiescence in a wrong line will not establish it as the true boundary unless the demands of the statute of frauds or adverse possession= are met.”). Neither requir= ement was met here.
As previously discussed, the Champagnes failed to show that they acquired tit= le to the disputed property through adverse possession. They similarly failed to show acquiescence through a written document that complied with the statute of frauds. The 1996 Notice, whi= ch David Gardner signed, does not demonstrate his acquiescence to the Robenstein li= ne as the boundary of his property. As we have explained, “[t]o be effective the acquiescence of the adjoining owners must be mutual, with each party recognizing the line adopted by the other. And the concurrence o= f the party against whom the recognized line operates must be clear and definite.” Amey v. = Hall, 123 Vt. 62, 68 (1962). The 1= 996 Notice does not manifest David Gardner’s “clear and definite= 8221; concurrence to the Robenstein line as the parties’ mutual boundary.<= span style=3D'mso-spacerun:yes'> The Notice primarily addresses th= e use of a twenty-foot strip of land between the Gardner lots. While the Notice states that the Gardners agreed to “keep all survey pins or markers clear and unobstructed,” this sentence does not manifest David Garner’s agreement that the Robenstein line is the parties’ true boundary line. We find no error in the court’s rejection of the Champagnes’ acquiescence claim.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
 The Champagnes do not directly ch= allenge the court’s denial of their adverse possession claim to portions of = the David Gardner lot. Instead, = they maintain that David Gardner acquiesced to the Robenstein line by signing t= he 1996 Notice. We note that th= e trial court’s denial of the Champagnes’ adverse possession claim as = to the David Gardner lot is supported by the record. As the court found, there were gr= own trees in the disputed area, which demonstrated that there were some years before 1996 when Mr. Montani did not plow or plant right up the Robenstein= boundaries.
 The Champagnes concede that the N= otice does not bind Una Gardner, and thus it does not establish that she acquies= ced to the Robenstein line as the southern boundary of her lot.
 We reject the Champagnes’ assertion that they need only show a party’s “passive compliance” with a boundary line to demonstrate acquiescence. We do not read Pafundi, 16= 9 Vt. at 446, cited by the Champagnes, to negate the specific requirements for acquiescence set forth in the cases cited above, i.e., either satisfaction= of the requirements of adverse possession or a writing that satisfies the sta= tute of frauds.