Brigham City v. Crawford

• Decision Date: 27 June 1899
• Court: Utah Supreme Court
• Parties: BRIGHAM CITY, APPELLANT v. JOHN CRAWFORD, RESPONDENT

57 P. 842

20 Utah 130

BRIGHAM CITY, APPELLANT v. JOHN CRAWFORD, RESPONDENT

Supreme Court of Utah

June 27, 1899

Appeal from the First District Court, Box Elder county, Hon. Charles H. Hart, Judge.

Action in ejectment to recover possession of certain land at the intersection of certain streets in Brigham City. From a verdict and judgment in favor of defendant, plaintiff appeals.

Reversed and remanded.

B. H Jones, Esq., for appellant.

R. H Jones, Esq., for respondent.

BARTCH C. J. MINER, J., concurring. BASKIN, J., dissenting.

OPINION

BARTCH, C. J.

This is an action in ejectment brought by the plaintiff to recover possession, from the defendant, of a certain piece of land situated at the intersection of Box Elder and Cambridge streets, in Brigham City, Utah. At the trial the jury returned a verdict in favor of the defendant, and the plaintiff appealed.

In the complaint, after alleging the corporate existence of the plaintiff, as a municipality, it is stated, substantially, that, at the time of bringing the action, the plaintiff was the owner, seized in fee and entitled to the possession, of the land covered by Box Elder and Cambridge streets in plat "C," Brigham City Survey, and that the defendant was in the possession thereof and unlawfully withheld the same from the plaintiff.

The answer denies the material allegations of the complaint, and disclaims all interest in the land claimed by the plaintiff, except that situated at the intersection of said streets. The land in dispute is then particularly described in the answer, and it is averred therein that "on no part of said tract has any street ever been declared, laid out, recorded, worked or used by plaintiff, or the public; and no intent has ever existed or been manifest to do so; and has been long abandoned." As further defense actual possession and adverse claim are set up, and the statute of limitations and an estoppel are pleaded.

Under this state of the pleadings, the court, upon objection by the respondent, refused to permit the witness Larsen, called for the plaintiff, to answer the following question: "You may state how long, to your knowledge, Box Elder and Cambridge streets have been open and used, in plat 'C,' Brigham City Survey, in section 12, township 9 north, range 2 west?"

The appellant insists that the action of the court in the premises was erroneous, and under the circumstances, we are inclined to so hold.

Likewise, as to the refusal of the court to permit answers to a number of other questions asked the witness by counsel for the appellant, among them the following: "Mr. Larsen, you may state whether or not there is any obstruction in Box Elder and Cambridge streets whatever? Mr. Larsen you may state whether or not Mr. Crawford had a fence at the junction of what is called Box Elder and Cambridge street?"

Box Elder and Cambridge are the streets, at the intersection of which the land in dispute is situated, and it had already been shown in evidence, without objection, that the witness who was a councilman of the municipality, was acquainted with those streets, "in Plat C, Brigham City Survey, Section 13, North of Range 2 West," for fifteen or twenty years; that Box Elder...