Brown v. Milliner

• Citation: 232 P.2d 202,120 Utah 16
• Decision Date: 01 June 1951
• Docket Number: No. 7434,7434
• Parties: BROWN, v. MILLINER.
• Court: Supreme Court of Utah

Page 202

232 P.2d 202

120 Utah 16

BROWN, v. MILLINER.

No. 7434.

Supreme Court of Utah.

June 1, 1951.

John S. Boyden, Allen H. Tibbals, Salt Lake City, for appellant.

P. H. Neeley, Coalville, for respondent.

WOLFE, Chief Justice.

This action was commenced by the appellant, plaintiff below, to establish the boundary line between a tract of land owned by him and adjoining land owned by the respondent, defendant below, in Summit County, Utah. The appellant claims title to the land in dispute under a deed while the respondent claims title under the doctrine of boundary by acquiescence and by adverse possession. From a judgment quieting title to the disputed area in the respondent, the appellant prosecutes this appeal. The appellant and respondent will hereafter be referred to as the plaintiff and the defendant, respectively.

In 1883, William Milliner, grandfather of the defendant, was the owner of the northeast quarter of the northeast quarter of Section 15, T. 2 S., R. 5 E., S.L.M. On September 19th of that year he conveyed to William J. Brown, grandfather of the plaintiff, a part of that quarter-quarter section, describing it by metes and bounds in the deed and stating it to contain 10.61320 acres, more or less. The tract thus conveyed is labeled #1 on the sketch appearing below.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Sketch of the N.E. 1/4 of the N.E. 1/4 of Sec. 15, T. 2 S., R. 5 E., S.L.M.

William J. Brown, the grantee, retained ownership of the above described tract until his death in 1855. By a decree in probate in 1902, this property was distributed to his son, William D. Brown, father of the plaintiff. In the decree of distribution the tract was described simply as 'that part of the Northeast quarter of the Northeast Quarter of Section 15 lying on the southwesterly side of the Weber River containing 10.61320 acres. All in Township 1, [sic] Sec. 15, South of Range 5 East, S.L.M.' William D. Brown conveyed this tract to his son, Thomas Edward Brown, the plaintiff, in 1938, describing it in the deed generally as 'part of the Northeast Quarter of the Northeast Quarter of [Section 15], lying on the southwesterly side of the Weber River.' By the same deed William D. Brown also conveyed to the plaintiff two adjoining quarter-quarter sections not involved in this suit. The total land conveyed was stated in the deed as constituting 90.61320 acres.

Both tracts #2 and #3 in the accompanying sketch were owned by William Milliner at his death and in 1909 were distributed by a decree in probate to his son, Joseph Milliner, father of the defendant. In 1928 the defendant acquired title to tract #3 by mesne conveyances from his father and in 1942 the latter conveyed tract #2 to him. Up to the time that the defendant acquired title to tracts #2 and #3, the descriptions in the conveyances in the chains of title to those two tracts apparently did not conflict with the description by metes and bounds of tract #1 as contained in the deed from William Milliner to William J. Brown in 1883. However, the descriptions contained in the deeds by which the defendant acquired title to tracts #2 and #3 in 1942 and in 1928, respectively, apparently overlap the description of tract #1. In the defendant's deed to tract #3, the property conveyed was described as beginning 756 feet south of the northeast corner of section 15; thence S 88~ 47' W. 1110 feet, more or less, to the center of the old channel of the Weber River; thence southeasterly along the center line of said river channel 480 feet, more or less. The west boundary of the tract conveyed was thus designated as the center of the old channel of the Weber River. Similarly, in the defendant's deed to tract #2, the property conveyed was described as beginning 471.2 feet south of the northeast corner of section 15, and running thence S. 89~ 45' W., 950 feet to the old channel of the Weber River; thence following said river channel S. 10~ 40' E. 200 feet; thence S. 82~ 00' W. 150 feet; thence S. 18~ 00' W. 110 feet; etc. Here again the west boundary of the tract conveyed was described as the old channel of the Weber River.

As to the location of the 'old channel of the Weber River', the parties at the trial below were in sharp dispute. The plaintiff introduced in evidence the deed to tract #1 from William Milliner to William J. Brown executed in 1883 on which there was a plat showing the location of the land conveyed in relation to the Weber River. The river is there shown to flow northwesterly in a single channel along the courses of tract #1 designated A, B and C on the sketch. Thus the plaintiff contended that the river as located on that plat was the 'old channel' referred to in the defendant's deeds to tracts #2 and #3. However, the defendant adduced evidence, and the lower court found, that in 1883 and up until 1920, the Weber River ran in the two channels shown in the above sketch, that the 'old channel' was the main channel at that time, and that it coursed through the center of tract #1 as shown by the sketch. In 1920 Summit County diverted the water from the old channel into the east or present channel. Since that time only during the high water season does any water from the river enter the old channel.

It will be noted that in the defendant's deed to tract #2, the old channel is described as being S. 89~ 45' W. 950 feet from the east section line and in the defendant's deed to tract #3 the call to the old channel is S. 88~ 47' W. 1110 feet from the east section line. As shown in the sketch, the actual distance along the north boundaries of these tracts from the east section line to the old channel, as located by the lower court, is considerably farther than the calls in the deeds, and the actual course of the old channel does not conform with the courses set forth in the defendant's deed to tract #2. Despite these discrepancies in courses and distances, the defendant contended that the old channel of the Weber River was a natural boundary monument and that it took precedence over the courses and distances called for in the deeds. It is unnecessary for us to decide the merit of that contention since the defendant readily admits that his title by deed, if any, to the overlapping area is junior to the title by deed held by the plaintiff, and he must succeed, if at all, in this action by establishing a new or original title to that area either by adverse possession or under the doctrine of boundary by acquiescence. It suffices, therefore, that the reader carry into the remainder of this opinion only the knowledge that the descriptions in the defendant's deeds to tracts #2 and #3 apparently overlap the description of tract #1 as contained in the plaintiff's chain of title. The only question in this case is whether the defendant can, under the facts, establish title to the overlapping or disputed portion by virtue of the doctrine of boundary by acquiescence or by adverse possession against the record title of the plaintiff. The evidence adduced by the defendant in support of his claims of title and the applicable law will now be considered.

The overlapping area is labeled the 'disputed area' on the sketch. It lies between the two channels of the river and has been and is now generally covered with brush. Competent evidence was introduced by the defendant that from at least 1883 to the time of the commencement of this action, he and his predecessors in title have pastured and occupied this area, and on occasions have cleared brush and harvested wild hay therefrom. The plaintiff and his predecessors in title to tract #1 from 1883 to the time of this action have farmed such part of that tract as could be cultivated and up until 1930, at least, uninterruptedly used the disputed area, which could not be cultivated, for the grazing of animals in the spring before the crops on adjoining lands were planted and in the autumn after they were harvested. It is not disputed that it was the custom in that locality for residents to let their livestock run at large on the unfenced land along the river in the early spring and in the autumn. There had never been a fence between the east boundary of tract #1 and the west boundary of tracts #2 and #3 until 1930 when the defendant erected a fence substantially along the old channel of the Weber River as located by the lower court. At that time the defendant was the owner of tract #3; the defendant's father, Joseph Milliner, owned tract #2; and William D. Brown, father of the plaintiff, owned tract #1. The plaintiff testified that while he was at his father's home to attend his mother's funeral, he went out to look at the farm and found the defendant preparing to build a fence. He asked the defendant what he was going to do and the latter replied that he had bought that ground, had had it surveyed and was going to fence off a cow pasture. The plaintiff replied that he did not think that the defendant owned it and that if he put up a fence, it would be under protest. The defendant's version of the same conversation was that the plaintiff came along just as he had finished building the fence, asked him what he was doing, and that there was no further conversation had. The defendant's wife testified that she was present at the time. She corroborated her husband's testimony as to what was said between the plaintiff and the defendant. About four to five years before the trial of this action, part of the fence along the south end of the disputed area burned and the plaintiff rebuilt the fence about a rod further north into the disputed area. There is no evidence that the defendant objected to this change in location.

It was stipulated by the plaintiff and the defendant that prior to the year 1939, they and their predecessors in title paid all of the taxes levied against their respective tracts of property under an assessment which merely designated the quarter section within which the land was embraced. But...