Carter v. Lindner

• Citation: 23 Utah 2d 204,460 P.2d 830
• Decision Date: 06 November 1969
• Docket Number: No. 11578,11578
• Parties: d 204 Alvie CARTER, Plaintiff and Respondent, v. M. A. LINDNER and Erma M. Lindner, his wife; and W. A. Wood and Arrah B. Wood, his wife, Defendants, Cross-Claimants and Appellants, v. Frank R. DOVER and Shirley May Dover, his wife, Defendants, Cross-Defendants and Respondents.
• Court: Supreme Court of Utah

Page 830

460 P.2d 830

23 Utah 2d 204

Alvie CARTER, Plaintiff and Respondent, v. M. A. LINDNER and Erma M. Lindner, his wife; and W. A. Wood and Arrah B. Wood, his wife, Defendants, Cross-Claimants and Appellants, v. Frank R. DOVER and Shirley May Dover, his wife, Defendants,

Cross-Defendants and Respondents.

No. 11578.

Supreme Court of Utah.

Nov. 6, 1969.

E. J. Skeen, Salt Lake City, for appellants.

Milton V. Backman, Ralph J. Marsh, of Backman, Backman & Clark, Salt Lake City, for respondents.

TUCKETT, Justice:

The plaintiff filed this action to quiet title to a parcel of land in Salt Lake City and also for damages by reason of the defendants' unlawful occupancy of the land.

The property herein referred to as the 'Carter property' was owned by one Robert Dover from 1920 until December of 1957, when he conveyed it to Frank R. Dover and Shirley M. Dover, his wife. In 1964, Frank R. and Shirley M. Dover entered into a contract for the sale of the property to the plaintiff who went into possession. In 1955, Lindner and Wood, the defendants, purchased the parcel of property adjoining the Carter property on the east and on the south. After the purchase by the defendants, Lindner had a conversation with Robert Dover concerning the proposed erection of a fence by the defendants. Mr. Lindner stated that he inquired of Mr. Dover if he knew where the line was in order that he might avoid the expense of a survey. He further testified that Dover showed him a spot on the land and said, 'You can put your fence right here.' A chain-link fence was erected on the line indicated but the record indicates that the fence was 24.85 feet north of the true boundary line.

Frank R. Dover, who succeeded to ownership of the parcel of land in question, testified that in the year 1957 he inquired as to why the fence had been erected on that location, and one of the defendants at that time claimed that the Dover property encroached on the Lindner-Wood property on the east side and that to compensate for that encroachment the fence had been placed at its present location.

The defendants Lindner and Wood claim that an oral contract was entered into as to the location of the fence in question and that the agreement is binding upon the plaintiff and the defendants, Frank R. Dover and wife.

The trial court found that the fence had been erected pursuant to a conversation with Robert Dover, who gave the defendants permission to establish the fence at that place. The court also found that prior to that time there was no dispute or uncertainty between the parties as to the location of the boundary line between the properties. The court further found that neither Robert Dover, Frank R. Dover, nor the plaintiff, Alvie Carter, has acquiesced in the fence as being their south boundary line for any period of time. Based upon the foregoing findings the court concluded that the plaintiff was entitled to a decree quieting title in Frank R. Dover and Shirley M. Dover, his wife, subject to the rights of the plaintiff under the purchase contract. The court declined to award ...