Clawson v. Wallace

• Decision Date: 08 February 1898
• Docket Number: 868
• Court: Utah Supreme Court
• Parties: SPENCER CLAWSON, APPELLANT, v. WALLACE ET AL., RESPONDENTS

52 P. 9

16 Utah 300

SPENCER CLAWSON, APPELLANT, v. WALLACE ET AL., RESPONDENTS

No. 868

Supreme Court of Utah

February 8, 1898

Appeal from the Third district court, Salt Lake county. Ogden Hiles Judge.

Action by Spencer Clawson against George Y. Wallace and others. Defendants had judgment, and plaintiff appeals.

Affirmed.

Young &amp Moyle, for appellant.

Williams VanCott & Sutherland, for respondents.

MINER, J. ZANE, C. J., and BARTCH, J., concur.

OPINION

MINER, J.:

This action was commenced in 1895, to quiet title to a strip of land 13x80 feet, on lot 8, block 75, plat A, Salt Lake City, described as commencing 225 feet east and 13 feet north of the southwest corner of said lot 8, thence north 13 feet, west 80 feet, south 13 feet, east 80 feet, to the place of beginning, and lies just north and west of the Salt Lake theater building in Salt Lake City. Respondents own land immediately north of the land referred to, and north of the alley connecting the land referred to with such alley to State street, and claim that the land in question, with the alley on the east, has been for over 25 years an alley and public roadway for all purposes; that respondents had and have a right of way for all purposes over said land in question, and over said alley on the east of it, for 25 years; and that respondents and their predecessors in interest and grantors have used said road and alleyway for all purposes of travel; and that such use had been peaceable, continuous, exclusive, open, adverse as of right, and with the knowledge and acquiescence of the plaintiff and his grantors and predecessors in interest. The court found the issues against the plaintiff, and decreed to the respondents a right of way 13x185 feet, covering the alley the whole distance of respondents' land, for all purposes of travel, including the use thereof for vehicles, carriages, etc., and that there was no public highway across said premises. The appellant concedes the right of way from State street west, 13 feet wide by 105 feet long, to a point where a gate is claimed to have been erected allowing ingress and egress into the land of defendants, but deny defendants' right to any easement west of this point over the land in question, and claim that the testimony is insufficient to justify the findings or decree in this respect. The respondents called S. L. Sprague and wife, who testified to a conversation had with Brigham Young, with reference to the alleyway in question, wherein he gave them the right of way and use of the alleyway. The appellant made objection to the testimony of Mr. Sprague and his wife, on the ground "that it was immaterial, irrelevant, incompetent, hearsay, and on the ground that it is not pleaded as an estoppel, and that a record title cannot be so lost or affected, and that it is a statement of a deceased person against the assignee of his heir by one in interest." The appellant in this action claims under Emily Y. Clawson, who received the property as the heir of Brigham Young. Respondents derived their interest from S. L. Sprague. Appellant claims and sues the respondents, as the assignee of the heir of Brigham Young, deceased, with whom the alleged conversation was had.

Comp. Laws Utah 1888, § 3877, as amended by Sess. Laws 1894, p. 26, subd. 3, reads as follows: "The following persons cannot be witnesses: A party to any civil action, suit, or proceeding, and any person directly interested in the event thereof, and any person from, through or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action, suit, or proceeding claims or opposes, sues or defends as guardian of any insane or incompetent person, or as the executor or administrator, heir, legatee or devisee of any deceased person, or as guardian or assignee or grantee, directly or remotely, of such heir, legatee or devisee as to any statement by, or transaction with, such deceased, insane or incompetent person, or matter of fact whatever, which must have been equally within the knowledge of both the witness and such insane, incompetent or deceased person, unless such witness be called to testify thereto by such adverse party, so claiming or opposing, suing or defending in such action, suit or proceeding." We are of the opinion that, under this section, S. L. Sprague was an incompetent witness, in so far only as he detailed the conversation with Brigham Young, and testified concerning matters equally within Brigham Young's knowledge as affecting the title. In re Atwood's Estate, 14 Utah 1, 45 P. 1036. But this objection would not apply to Mrs. Sprague. It does not appear that Mrs. Sprague had any interest in the land conveyed to respondents, except as the wife of S. L. Sprague. When she executed the deed, she released her inchoate right of dower, but conveyed no fee or title in the land. Her act as wife in joining in the deed does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband of her possible future contingent right of dower in the premises conveyed. Such act would not constitute her a grantor of the premises, or vest in the grantee any greater or other estate than such as he derived from the conveyance from Mr. Sprague. The grantee under such deed takes the title by virtue of the title and estate of the husband, and he therefore derives his title through, from, and under such grantee. In Witthaus v. Schack, 105 N.Y. 332, 11 N.E. 649, the court say: "The settled theory of the law as to the nature of an inchoate right of dower is that it is not an estate or interest in land at all, but is a contingent claim, arising not out of contract, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible only, during its inchoate state, of extinguishment. By force of the statute, this is affected by the act of the wife in joining with her husband in the execution of a deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest, and not as a conveyance, and removes an incumbrance, instead of transferring an interest or estate." We are of the opinion that Mrs. Sprague was a competent witness, and presume the court below decided the case upon the competent testimony before it. Mining Co. v. Haws, 7 Utah 515, 27 P. 695; Salt Lake Foundry & Machine Co. v. Mammoth Min. Co, 6 Utah 351, 23 P. 760, affirmed 151 U.S. 447, 38 L.Ed. 229, 14 S.Ct. 384; Stahn v. Hall, 10 Utah 400, 37 P. 585.

But it is claimed by the appellant that at the time of the conversation between Brigham Young and Sprague, when the easement and right of way is said to have been granted to Sprague, that the fee to the land in question was in the United States government; that Young had a mere possessory right therein; and that Sprague and the respondents lost any right which they otherwise might have had, by not setting up their claim, and having it determined by the probate court, under the provisions of the "Town-Site Law" (Comp. Laws Utah 1888, § 2817). For this reason it is claimed that the conversation between Sprague and his wife and Brigham Young was incompetent and immaterial. This section provides, in substance, that each and every person claiming to be the rightful owner of possession, occupant or occupants, or to be entitled to the occupancy or possession of such lands, or any part thereof, under the town-site act, in which they have or claim to have an interest, must specify such interest or estate, etc., and that persons not filing such claim are forever barred. That an occupant in possession may transfer and sell his equitable right to a lot under the town-site entry before patent is settled in Hussey v. Smith, 99 U.S. 20, 25 L.Ed. 314; Stringfellow v. Cain, 99 U.S. 610, 25 L.Ed. 421; Hussey v. Smith, 1 Utah 129; McKennon v. Winn, 22 L.R.A. 511.

The right of travel over another's land may be denominated an "easement" or "right of way." An easement is corporeal. A parol license, as well as a grant, is sufficient to create an easement. A contract for a right to pass over the land of another is an easement, extending only to a temporary disturbance of the owner's possession. "A grant of such easement is in the owner or occupant of the estate, over which the way is used." "So, any one who acquires the right by prescription or user to pass across the land of another cannot claim to have the fee in the land, or thereby become the owner or occupant of the land." Washb. Easem. pp. 3-27. If the respondents ever obtained a right to pass over the land in question, it was merely a claim to an easement, which recognized and conceded the fee, ownership, and right of possession of the land in the actual owner. The provisions of section 2817, above cited, did not render it necessary to set up a claim to an incorporeal right, such as an easement, for the adjudication of the probate court. Such a claim is not an adverse claim,...