285 P. 646 (Utah 1929), 4766, Lindsay Land & Livestock Co. v. Churnos

Docket Nº:4766
Citation:285 P. 646, 75 Utah 384
Opinion Judge:CHERRY, C. J.
Party Name:LINDSAY LAND & LIVE STOCK CO. v. CHURNOS et al
Attorney:E. A. Walton and Wilson & Barnes, all of Salt Lake City, for appellant. Thatcher & Young, of Ogden, and W. E. Davis, of Brigham, for respondents.
Judge Panel:CHERRY, C. J. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.
Case Date:October 01, 1929
Court:Supreme Court of Utah
 
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Page 646

285 P. 646 (Utah 1929)

75 Utah 384

LINDSAY LAND & LIVE STOCK CO.

v.

CHURNOS et al

No. 4766

Supreme Court of Utah

October 1, 1929

Rehearing Denied February 28, 1930.

Appeal from District Court, First District, Cache County; M. C. Harris, Judge.

Action by the Lindsay Land & Live Stock Company against Nick Churnos and others. Judgment for defendants, and plaintiff appeals.

AFFIRMED.

E. A. Walton and Wilson & Barnes, all of Salt Lake City, for appellant.

Thatcher & Young, of Ogden, and W. E. Davis, of Brigham, for respondents.

CHERRY, C. J. STRAUP, ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

[75 Utah 385] CHERRY, C. J.

The plaintiff, alleging that it was the owner and in possession of an extensive tract of uninclosed grazing lands in Cache county, and that defendants had driven and threatened to continue to drive large herds of sheep over and across the same, brought this action to enjoin defendants from trespassing on its lands, to quiet the plaintiff's title thereto and to recover damages sustained by trespasses thereon. The defendants justified driving their herds across the plaintiff's lands, and their right to continue doing so, by [75 Utah 386] alleging the existence of a public highway across the plaintiff's lands, along and upon which their herds had been, and in the future were intended to be driven.

The case was tried by the court without a jury. A judgment and decree was made and entered in favor of the defendants, from which the plaintiff has appealed.

The trial court made findings of fact, to the effect that about the year 1876 there was laid out over and across the lands in question, when the same were a part of the public domain, a certain described roadway or trial, which was thereafter, and up to the filing of this action, continually used as a public thoroughfare, and concluded that, because of said use, the same became and was dedicated and abandoned to the public as and for a public highway. There were further findings that during and between the years 1894 and 1904, the title to the lands in question passed from the United States to the plaintiff or its grantors, and that since that time the claimed

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highway had been used by the public generally for travel thereon, under a claim of right, continuously and adversely, and without interference or objection on the part of the owners of the land, etc.

The appeal presents several formal assignments of error, but the decisive question and the only one which needs to be considered is whether the evidence is sufficient to justify the findings respecting the existence of a public highway over the plaintiff's lands. The evidence is substantially uncontradicted and may be generally summarized as follows:

The lands over which the highway is claimed are uninclosed and uninhabited mountain lands, suitable only for grazing purposes, and situated near the southern border of Cache county. The road extends across the lands in a general easterly and westerly direction following a part of its distance through a narrow canyon or pass called Davenport canyon. At the eastern terminus of the road is a large area of mountain land valuable for grazing animals in the summer season, a portion of which is now the Cache National Forest, and a portion in private ownership. This area has [75 Utah 387] been extensively used for summer grazing for many years, by owners of sheep who trailed them over the route in question from the settled portions of the country lying to west, to the summer range in the spring of the year and back again in the fall. In 1876 a...

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