Baxter v. Utah Dept. of Transp.

• Decision Date: 09 November 1989
• Docket Number: No. 890175-CA,890175-CA
• Citation: 783 P.2d 1045
• Parties: Ronald L. BAXTER and Shirley Diane Baxter, Plaintiffs and Appellants, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant, Third-Party Plaintiff, and Respondent, v. Robert Rees DANSIE; Marie Grow Dansie; Davis County Assessor; Davis County Commissioners; Davis County Recorder; and Weber County, Third-Party Defendants.
• Court: Utah Court of Appeals

Page 1045

783 P.2d 1045

Ronald L. BAXTER and Shirley Diane Baxter, Plaintiffs and Appellants, v. UTAH DEPARTMENT OF TRANSPORTATION, Defendant, Third-Party Plaintiff, and Respondent, v. Robert Rees DANSIE; Marie Grow Dansie; Davis County

Assessor; Davis County Commissioners; Davis

County Recorder; and Weber County,

Third-Party Defendants.

No. 890175-CA.

Court of Appeals of Utah.

Nov. 9, 1989.

Rehearing Denied Dec. 20, 1989.

Glen E. Fuller, Salt Lake City, for plaintiffs and appellants.

R. Paul Van Dam and Stephen C. Ward, Salt Lake City, for respondent Utah Dept. of Transp.

Gerald E. Hess, Farmington, for Davis County.

Brent E. Johns, Ogden, for Weber County.

Before BENCH, GREENWOOD and JACKSON, JJ.

OPINION

JACKSON, Judge:

Ronald L. Baxter and Shirley Diane Baxter (the Baxters) appeal from a judgment quieting title to six acres of land in the Utah Department of Transportation (UDOT). We reverse.

This dispute arises out of the territorial General Assembly's use of the center of the channel of the Weber River as part of the southern border of Weber County and the northern border of Davis County, in combination with two facts. First, until at least 1886, the river moved through more than one channel in the vicinity of the property now claimed by the parties. Second, the channel of the Weber River now lies to the south of the disputed property, but did not follow its present course in years prior to 1894.

At the outset, we note that this is not an action between counties seeking a judicial declaration of where their common boundary lies on the ground at all points. Nor is this a lawsuit between riparian owners on either side of a boundary river in which each claims title to formerly submerged land that has surfaced because of a shift in the course of the river. This is a quiet title action to six acres of land in which defendant attacked plaintiffs' record title by challenging the title of plaintiffs' tax deed grantor, Davis County, based on an allegation that the property lies in Weber County. The issues presented on appeal are: (1) when and where was the boundary between Davis and Weber Counties fixed and established; (2) were the subject six acres north (i.e., in Weber County) or south (i.e., in Davis County) of that fixed boundary at that time; and, if south, (3) was the location of the boundary thereafter moved to the actual location of the Weber River in 1894 (i.e., to the south of the subject six acres, thereby placing the six acres in Weber County) either (a) by subsequent legislative enactment, (b) by county action authorized by the legislature, or (c) by the river's gradual and imperceptible movement there.

We begin our analysis of these issues with a full presentation of the history of this litigation and of the parties' competing claims to ownership. In March 1946, title to an 18-acre tract near the border separating Davis and Weber Counties was quieted in Tasma Dansie in a decree that contained a legal description of the tract and characterized it as lying in Davis County. The tract was conveyed by Tasma Dansie in March 1961 to Robert and Marie Dansie by way of a warranty deed containing the following property description: "S 1/2 of N 1/2 of SW 1/4 of Sec. 25, 5 N., 1 W. SLM, Cont. 18.00 Acres in Davis County." Tax sale proceedings were eventually initiated by Davis County because of unpaid 1964 property taxes. ¹ Ronald Baxter and two others acquired the 18-acre tract as tenants-in-common under a tax deed from Davis County that was executed on May 26, 1969. The following year, the tenants-in-common evenly partitioned the tract by reciprocal quitclaim deeds, and the Baxters thereby acquired the six acres that are the subject of this litigation.

In the meantime, however, the Dansies had conveyed the original 18-acre tract and other property to UDOT's predecessor state agency by warranty deed prepared by the agency and executed on May 14, 1964. The 18-acre tract (from which the six acres at issue in this case came) was described in the deed under the heading "IN WEBER COUNTY." The other property conveyed to UDOT in the same warranty deed was described under the heading "ALSO IN DAVIS COUNTY."

After a 1978 judgment dismissing a damage action by Baxter's former cotenant for injury to his separate six-acre parcel, discussed below, the Baxters filed this quiet title action in 1979, basing their claim to title on the 1969 tax deed from Davis County. UDOT filed an answer, attached its warranty deed from the Dansies, and asked the court to "rule that the property in question is located within the boundaries of Weber County" and to quiet title in its name. UDOT alleged that the tax deed from Davis County was void and asserted that the Baxters did not thereby acquire ownership of the property. As the basis for this claim, UDOT alleged that, because the property is located in Weber County, Davis County had no authority to tax the property, to acquire title when taxes were unpaid, or to convey title through a tax deed. ² UDOT also pleaded collateral estoppel based on a 1978 judgment dismissing a damage action by Ronald Baxter's former cotenant, Toone, against the contractor UDOT permitted to remove gravel from the property adjoining the Baxters'.

In February 1983, the trial court granted UDOT summary judgment on the collateral estoppel defense. Because Toone was determined not to be the owner of the adjacent property in the 1978 judgment--based on a jury's determination that it lies within the boundaries of Weber County ³--the trial court concluded that Baxter could not relitigate that issue. On appeal, the Utah Supreme Court held that application of the collateral estoppel doctrine to the Baxters' quiet title action was erroneous. Summary judgment in UDOT's favor was reversed, and the case was remanded. Baxter v. Utah Dep't of Transp., 705 P.2d 1167 (Utah 1985).

At the bench trial in August 1986, the Baxters contended that the location of the boundary line between the counties was set by the actual location of the Weber River's main channel at the time of the legislature's initial description of the boundary, which they believed was on January 10, 1866. At that time, they asserted, the Weber River was north of the subject six acres, putting them in Davis County. They claimed that the boundary's location has remained fixed in that spot since there is no subsequent indication of legislative intent to move it from there. Furthermore, they argued, the counties themselves had no authority to move their common boundary from the legislatively fixed location by thereafter agreeing to accept the surveyed location of the main channel of the river in 1894, to the south of the subject six acres, as their boundary.

UDOT, on the other hand, contended that there was "uncertainty" about where the Weber/Davis County boundary line was prior to 1894 because the river moved around before then and because the excerpted survey notes in evidence did not contain a metes and bounds description of the Weber River's location on the ground through Section 25 before 1894. This uncertainty was resolved, UDOT claimed, when the Weber and Davis County surveyors surveyed a line down the middle of the channel of the Weber River in 1894, when the river was concededly running to the south of the property now claimed by the Baxters. Furthermore, because the counties adopted the 1894 surveyed location of the river as their common boundary line, that was the county boundary thereafter adopted by the state constitution. This action by the counties was authorized, UDOT argued, by the following territorial act, adopted February 20, 1878:

Whenever any dispute or uncertainty shall arise as to any county boundary, the same may be determined by the county surveyors of the counties interested, and in case they fail to agree, or otherwise fail to establish the boundary, the county courts of either or both counties interested, may engage the service of the aforesaid Territorial Commissioner, who, with the said county surveyors, or either of them, if but one appear for that purpose, shall proceed forthwith to permanently determine such boundary line at the expense of the counties interested by making the necessary surveys and erecting suitable monuments to designate said boundaries, which shall be deemed permanent until superseded by legislative enactment. Nothing in this act shall be construed to give the surveyors, mentioned herein, any further authority than to erect suitable monuments to designate said boundaries as they are now established by law.

1888 Compiled Laws of Utah § 86 (now see Utah Code Ann. § 17-1-33 (1987)).

At the conclusion of trial, the court found that "the exact location of the Weber River in 1866 cannot be determined," apparently because the evidence contained no description of its course through Section 25 at that time along a surveyed line. Although the trial court agreed with the Baxters that the boundary had been legislatively established by the description given in the 1866 enactment, it otherwise embraced UDOT's legal analysis. The court concluded that the counties had, in 1894, properly exercised the authority given them in section 86 of the 1888 Compiled Laws to resolve the boundary uncertainty and to fix their common boundary as the surveyed 1894 location of the center of the channel of the Weber River. Thus, according to the trial court, the subject six acres "is and has always been in Weber county," rendering the tax deed from Davis County invalid. Title to the six acres was accordingly quieted in UDOT, and this appeal ensued.

I.

We address first the question of the legislature's establishment of the boundary between Davis County and Weber County. The fixing of a county boundary is a legislative prerogative, San Juan County v. Grand County, 13 Utah 2d 242, 371 P.2d 855, 856 (1962), as is the prescription of a method for resolving any uncertainty about the actual location of that boundary on the...