Central Pac. Ry. Co. v. Tarpey

• Court: Utah Supreme Court
• Writing for the Court: THURMAN, J.
• Citation: Central Pac. Ry. Co. v. Tarpey, 51 Utah 107, 168 P. 554 (Utah 1917)
• Decision Date: 26 September 1917
• Docket Number: 2993
• Parties: CENTRAL PAC. RY. CO. v. TARPEY et al

168 P. 554

51 Utah 107

CENTRAL PAC. RY. CO. v. TARPEY et al

No. 2993

Supreme Court of Utah

September 26, 1917

On application for rehearing November 19, 1917.

Appeal from District Court, First District; Hon. J. D Call, Judge.

Action by Central Pacific Railway Company against David S. Tarpey Administrator and others.

Judgment for plaintiff. Defendant Peter J. Peterson appeals.

AFFIRMED.

Geo Halverson for appellant.

John V Lyle, H. G. Nebeker and Frank Thunen for respondent.

THURMAN, J. FRICK, C. J., and McCARTY, CORFMAN, and GIDEON, JJ., concur.

OPINION

THURMAN, J.

Plaintiff by this action seeks to quiet its title to the east half of section 5, and all of sections 9, 15, 23, and 27, in township 8 north, range 1 east, Salt Lake meridian, United States survey. The complaint filed by the plaintiff includes all of the odd sections from 1 to 29, inclusive, in said township, but all of the defendants, except Tarpey and Peter J. Peterson, filed disclaimers, thus eliminating from the case the particular land occupied by them. Tarpey failed to appear and answer, and the only answer filed in the case is by defendant Peterson who claims ownership of the land first above described; hence the lands claimed by him are the only lands involved in the action. The complaint, in effect, alleges ownership of the land by the plaintiff in fee simple, adverse claim and possession by the defendants, and that said claim and possession is without right. Defendant Peterson answers and, in effect, admits, his claim of interest in and possession of the land, but denies the remaining allegations of the complaint. As a further defense, defendant, in effect, alleges that in 1887 he entered into a contract in writing to purchase the land in controversy from one D. P. Tarpey for a certain consideration; that Tarpey immediately put defendant in possession of the land and that defendant has ever since held the same adversely to the plaintiff and all the world, openly, notoriously, uninterruptedly, and peaceably under color of title and claim of right thereto, to the exclusion of the plaintiff and all the world, and has ever since paid all the taxes legally levied and assessed on said land, and has used said land according to the usual course and custom of the country. Defendant also alleges full performance of the contract with Tarpey by final payment for the land December 24, 1896. Both plaintiff and defendant pray for equitable relief.

Plaintiff, replying to defendant's further defense, for want of knowledge or information sufficient to form a belief, denies, in effect, all of the allegations thereof, except that said Tarpey did execute said agreement. Plaintiff affirmatively alleges that defendant, at all times, expressly admitted the title of plaintiff and its predecessor in interest to said land. By way of explaining Tarpey's connection with said land plaintiff then alleges, in effect, that in 1887 plaintiff's predecessor in interest, the Central Pacific Railroad Company, agreed to sell, and, when fully paid for, to convey, to said Tarpey said land, but that no payment was ever made thereon, and in 1895 the contract with Tarpey was rescinded and canceled by mutual consent of the parties, and thereafter, by instrument in writing, Tarpey assigned and transferred back to the railway company all his rights under said contract.

In this statement, for the sake of brevity and simplicity, we have paraphrased the substance of the contract between Tarpey and the defendants so as to include only so much as relates to the defendant Peterson and the land claimed by him. All the rest is immaterial under the issues tried in the court below. The case was tried by the court without a jury. The evidence, without dispute, tends to show that the plaintiff is the owner of the legal title to the land in controversy by grant under an Act of Congress enacted prior to 1887, and also by patent issued by the United States in 1894. The evidence also tends to show that defendant first entered into possession of the land under an executory contract for purchase with said Tarpey in 1887, as alleged in the answer, and that ever since that time defendant has used the same and all of it for grazing purposes, either by himself or by persons claiming under him, the use thereof being open, notorious, and peaceable under claim of right. It does not appear that the land was ever inclosed by a fence, or other inclosure, or cultivated or improved, or money expended upon it for purposes of irrigation. The evidence also shows without dispute that defendant fully performed his part of the contract with Tarpey by payment of the purchase price within the time limited by the contract, which was December 24, 1896. It does not show, however, that the plaintiff or its predecessors in interest received any part of the purchase price so paid, but, on the contrary, such payment is affirmatively denied. The court found that the contract was entered into with Tarpey as alleged in the defendant's answer, and that defendant had fully paid for the land according to its terms. It also found that defendant, upon the execution of the contract in 1887, was immediately put into possession of the land by Tarpey, and had ever since continued in the exclusive possession thereof, openly, notoriously, exclusively, and peaceably, under claim of right so to do, against all the world except Tarpey and the plaintiff up to the time of full payment of the purchase price, and after that time against all the world.

Other findings were made by the court which, at this point, are not material. As conclusions of law the court found the contract with Tarpey was and is not color of title, and that the possession of the land by the defendant was not adverse until the date of final payment, December 24, 1896. It also found that defendant had acknowledged title in the plaintiff by bringing suit against it in respect to the land, and, further, that defendant had failed to pay the taxes legally levied and assessed against the property continuously for seven years during said time. It further found that plaintiff was entitled to a decree as prayed for in its complaint. Judgment was rendered accordingly and defendant appeals.

Appellant assigns as error the above findings and conclusions of the trial court, and also makes other assignments which, in our view of the case, are not necessary to determine. The vital and only question to be determined is, Was the defendant's occupancy and possession of the land during any period of seven years adverse to the plaintiff within the meaning and purview of the statutes of Utah relating to title by adverse possession? The law defining the conditions under which title by adverse possession may be acquired is found in Comp. Laws Utah 1907, sections 2862 to 2866, inclusive. As all of these sections are necessary to an intelligent understanding of the question before the court they are here presented in full:

"2862. Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the property under claim of title exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the property included in such instrument, decree, or judgment, or of some part of the property under such claim, for seven years, the property so included shall be deemed to have been held adversely, except that when the property so included consists of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.

"2863. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed and occupied in the following cases: (1) Where it has been usually cultivated or improved; (2) where it has been protected by a substantial inclosure; (3) where, although not inclosed, it has been used for the supply of fuel or of fencing timber for the purpose of husbandry, or for pasturage, or for the ordinary use of the occupant; (4) where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed, according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.

"2864. Where it appears that there has been an actual continued occupation of land under claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, shall be deemed to have been held adversely.

"2865. For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only: (1) Where it has been protected by a substantial inclosure; (2) where it has been usually cultivated or improved; (3) where labor or money has been expended upon dams, canals, embankments, aqueducts, or otherwise, for the purpose of irrigating said lands, amounting to the sum of $ 5 per acre.

"2866. In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors have paid all taxes which have been levied and assessed upon such land according to law."

The...