Bingham Livery & Transfer Co. v. McDonald
| Decision Date | 29 April 1910 |
| Docket Number | 2083 |
| Citation | 110 P. 56,37 Utah 457 |
| Parties | BINGHAM LIVERY & TRANSFER COMPANY v. McDONALD |
| Court | Utah Supreme Court |
Rehearing Denied, Juluy 11, 1910.
Appeal from District Court, Third District; Hon. C. W. Morse, Judge.
Action by Bingham Livery & Transfer Company, a corporation, against R. D. McDonald.
Judgment for plaintiff. Defendant appeals.
REVERSED WITH DIRECTIONS.
Weber & Olson for appellant.
APPELLANT'S POINTS.
In the early fall of 1879, plaintiff received a deed from Campbell for the particular piece of ground embraced in Lot 80. This deed was lost by appellant in a fire which occurred in 1895 and which burned down his blacksmith shop and all his books and papers. It was the usual form of quit-claim deed, duly made and executed before a notary public and witnesses, and all circumstances of the formal making and execution of the deed are given. The witness could not, nor could he be expected to give the exact language of the deed; if he had undertaken to do so his testimony in this respect might be open to doubt or criticism, which is impossible as to any of the testimony given by appellant in this case. James Campbell, first party, by Hugh Campbell, his attorney in fact, conveyed this ground to appellant. The deed was made in the office of Henry Thompson, a notary public in Bingham Canyon, and was subscribed to before the notary and before two witnesses, and was formally acknowledged before the notary, who duly signed his name and affixed his seal to the acknowledgment. The deed described this ground, and witness remembered that it stated that the ground conveyed was twenty-five feet in width, and that it extended westerly from Carr Fork road to the mountain and adjoined the livery stable premises on the north. It referred to posts which showed the boundaries of the ground, one post at what is shown on the plat "G" as the present southeast corner of Lot 8, Wilke's survey, being also the southeast corner of Lot 80, Smith's survey, on Carr Fork road; and one at the junction of main Bingham Canyon and Carr Fork road, being the northeast corner of Lot 80. Appellant remembered that it was in 1879 that he received this deed by reference to a book account showing that to have been the year when a fence was built along the north line of lot 80 from the rear corner of appellant's blacksmith shop to the mountain. Hugh Campbell was the duly authorized attorney in fact for James Campbell. Under this deed appellant has claimed title since 1879. This proof of the lost deed is sufficient. Proof of possession for a period of nearly thirty years under claim of title being established, very slight additional circumstances are required to establish a lost deed under which title is claimed. (Scott v. Crouch, 24 Utah 377; Harbison v. School Dis., 89 Mo. 184; Perry v. Burton, 111 Ill. 138; Parks v. Caudle, 58 Texas 216.)
Dey & Hoppaugh for respondent.
RESPONDENT'S POINTS.
Until the contents of a deed are proved the deed is not proved, and the proof should be clear and plenary. (Lampe v. Kennedy, 14 N. W., 43, 45; Thomas v. Ribble, 24 S. E., 24, 242; Capell v. Fagan, 77 Pa. 55; Cunner v. Pushor, 29 A. 1083; Louisville & Nashville Railroad Co. v. Boykin, 76 Ala. 560; Shackleford v. Bailey, 35 Ill. 387; Humphries v. Huffman, 33 Ohio State, 395 404; Livingston v. Iron Company, 9 Wendell, 311, 517; Fugate v. Pierce, 49 Mo. 441, 447.)
It is obvious where a deed containing no description of the land is relied on to give color of title that it will be ineffectual for that purpose.
(Buswell Lim. and Adverse Possession, p. 353.)
A deed is color of title only to the extent that the premises are described in the conveyance.
(McEvoy v. Lloyd, 31 Wis. 142.)
The description is the most essential part of the deed under this statute, for it determines the extent of the constructive possession arising from the actual possession of a part.
(Wilson v. Atkinson, 77 Cal. 485; Murphy v. Doyle, [Minn.] 33 N.W. 220, 221.)
STATEMENT OF FACTS.
Plaintiff, a corporation organized and existing under the laws of the state of Utah, brought this action against the defendant to quiet title to a certain parcel of ground described in its complaint as "situate in the town of Bingham Canyon, Salt Lake County, state of Utah, to-wit: All of lot 80 in said town of Bingham Canyon, as the same is described on Smith's survey of Main Bingham townsite." Plaintiff claimed to deraign title to the land in controversy through mesne conveyances from a United States patent called the "Valentine Patent," issued July 10, 1876, to David H. Bentley. Defendant claims the land by adverse possession in himself and his predecessors since the date of the issuance of the Valentine patent referred to, under claim of title founded upon a written instrument. The land in controversy is situated at the junction of Bingham Canyon road and Carr's Fork road, the main throughfares along which the town of Bingham Canyon is built. The following diagram shows the boundaries in dispute and their location, with reference to the other properties in that vicinity, and will, to some extent, aid in illustrating the questions involved.
[SEE DIAGRAM IN ORIGINAL]
The area of the ground in dispute is 25x100 feet, and is designated in the record, and marked on the above diagram, as lot 80. Defendant, in his counterclaim, alleged ownership to another piece of ground 30x65 feet in lot 81, contiguous to and north of lot 80. Defendant's blacksmith shop, with the exception of the southwest corner thereof, which is on lot 80, is on this 30x65 feet of ground. Plaintiff disclaimed ownership and all right of possession to the 30x65 feet of land mentioned, and that part of lot 80 upon which the southwest corner of defendant's blacksmith shop stands.
The facts upon which the respective parties rely for a recovery in this action are about as follows: Long prior to 1876 the ground represented by the diagram was used as a sawmill site and logging ground by one James Campbell under a deed from A. D. Heaton, made December 28, 1869. The sawmill stood north of the land in controversy and on what is designated in the record as lot 82. The premises lying north of lot 80 Campbell sold to parties who later on converted the buildings used in connection with the sawmill into a livery stable. In November, 1876, defendant purchased from the parties who were then in possession of the livery stable premises under a conveyance from Campbell, a piece of ground 30x50 feet in lot 81, contiguous to and north of the premises in dispute. The land lying south of this 30x50 feet and embracing lot 80 remained in the possession of Campbell, under his deed from Heaton. In 1876 defendant, after purchasing the 30x50 feet of ground mentioned, erected a blacksmith shop thereon. About the time he commenced the erection of his blacksmith shop he obtained permission from Campbell's agent and attorney in fact to occupy the 25x100 feet of ground embraced within lot 80 and to use the same as a yard for his blacksmith shop. In pursuance of the permission thus given him, defendant, in November, 1876, entered into possession of and occupied lot 80 as Campbell's tenant or licensee and used the ground embraced therein for the storing of his fuel, for the repairing of vehicles and implements, and for the storing of the same, for outhouses, and for all other purposes for which yards of this character are generally used. Defendant continued to thus occupy the premises until 1879, when, according to his testimony, which stands uncontradicted, he purchased the land embraced within lot 80 and received a quitclaim deed thereto from Campbell. This deed, which he failed to have recorded, was lost in a fire which occurred in 1895, and which burned down his blacksmith shop and destroyed all of his books and papers. On July 10, 1876, a United States patent was issued to David H. Bentley for forty acres of land. This patent, referred to in the record as the "Valentine Patent," covers a large portion of the ground upon which the town of Bingham Canyon is built, including the premises in dispute. Soon after the patent was issued preparations were made by the occupying claimants in Bingham Canyon, including defendant, to test its validity. Bentley, the patentee, went to Bingham Canyon, and defendant informed him that he, Bentley, "had no interest in there at all." No attempt was made by Bentley, or any of his successors in interest, to take possession of the ground, and defendant has continually remained in possession of the premises embraced within lot 80, and used the same as a yard in connection with his blacksmith shop for the purposes hereinbefore mentioned. It appears that from the time defendant went into possession of lot 80 until about the time this action was commenced, plaintiff and its predecessors in interest drove over a portion of the lot in hauling hay to and manure from the livery stable. They would also occasionally leave a vehicle, when not in use, upon the premises. Plaintiff, however, does not claim any title to or easement in the property by virtue of the use thus made of it.
The claim made, if we correctly understand the position of counsel for plaintiff, is, that evidence of the use made of lot 80 by plaintiff and its predecessors tends to show that defendant was not the sole occupant of the property, and that therefore he could not, and did not, acquire title to it by adverse possession. The evidence, without conflict, shows that the use made of the premises by plaintiff and its predecessors in no way interfered with defendant's occupancy and use of the property. George H Davis, a witness for defendant,...
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