Generally speaking, a burden of proof is an expression of society's tolerance for error in a particular realm of the law. Thus, we have held that “proof beyond a reasonable doubt is the standard appropriate for criminal defendants who stand to lose liberty or life upon conviction, while a preponderance of the evidence is the level of proof required in the typical civil case where only money damages are at stake.”19 “The intermediate standard of proof—clear and convincing evidence—is appropriate when the interests at stake in a civil case are particularly important and more substantial than the mere loss of money.” For instance, the clear and convincing evidence standard has been utilized in cases involving civil commitment, deportation, denaturalization, or where parental liberty interests are at stake.

Here, we are presented with a legal doctrine—boundary by acquiescence—that may deprive a person of fee simple ownership in real property. Although an interest in real property is clearly not as important as a liberty interest, it certainly has more importance than money. Indeed, we have implicitly recognized this notion by frequently requiring the intermediate clear and convincing evidence standard in other types of disputes involving real property. A superficial review of our case law reveals that we require the clear and convincing evidence standard in the following situations:

 

1. abandonment of easements,

2. establishment of prescriptive easements,

3. abandonment of restrictive covenants,

4. an attack on the validity of a deed,

5. adverse possession based on parol gifts,

6. overcoming presumptions that deeds convey fee simple title in favor of a finding that the deed was only intended as security,

7. a challenge to the validity of a joint tenancy arguing that there was no intent to create a right of survivorship, and

8. dedication of highways to public use by abandonment.

 

As these cases illustrate, we generally require clear and convincing evidence to deprive an individual of an interest in real property. Because boundary by acquiescence also alters fee simple ownership of real property, we hold that a claim of boundary by acquiescence must be proven by clear and convincing evidence. This standard is compatible with our other real property cases and will also promote consistency and predictability among these related real property doctrines. Having resolved the applicable standard of proof, we next consider whether Mr. Kay's predecessors acquiesced in the original fence as the boundary.

 

Essentail Botanical Farms, LC v. Kay, 2011 UT 71, 270 P. 3d 430, (Utah 2011)