Dragos v. Russell, 7568

• Citation: 120 Utah 626,237 P.2d 831
• Decision Date: 19 November 1951
• Docket Number: No. 7568,7568
• Parties: DRAGOS et ux. v. RUSSELL et ux.
• Court: Utah Supreme Court

Page 831

237 P.2d 831

120 Utah 626

DRAGOS et ux. v. RUSSELL et ux.

No. 7568.

Supreme Court of Utah.

Nov. 19, 1951.

Perry H. Burnham, Wm. S. Livingston, Salt Lake City, for appellants.

Harry G. Metos, Sam Bernstein, Salt Lake City, for respondents.

WOLFE, Chief Justice.

This is an action to quiet title to a strip of land lying along the boundary between the parties. The trial court found that defendants' tourist cabins and sewer line extended onto the plaintiffs' property. The defendants appeal from an order, directing that the cabins and sewer line be removed.

It is undisputed that a survey shows that defendants' motel-cabins are .1 foot from the deed line on the east end and 2.7 feet over the line on the west end. Both parties admit that an old fence which has been there many years has always been considered the actual boundary line. Their difference as to where the old fence line was arises because the defendants tore down the fence at the time they built the latest cabins. The trial court's finding that 'said fence was located on the legal boundary line [deed line] separating said two parcels of land * * *' is not sustained by the record.

The disputed boundary line runs east and west. The Dragos (plaintiffs') property is on the north, Russells' on the south. In 1911, a Mrs. Mary A. Duncombe owned the Russell property. Her daughter, Daisy Duncombe, testified that from the position of the well and one tree remaining from the early row of trees, the fence line in 1948 appeared to still be in the same place that she remembered it to be when she lived there. She testified that when she first moved on the property, the only fence separating the two lots was of barb wire at the rear of the property which enclosed a pasture. In 1912, Mrs. Mary A. Duncombe and Mr. Mads Anderson, the owner of the Dragos property at that time, put up an ornamental wire fence on the 'line' between the two places. It ran from the sidewalk on State Street 165 feet west where it joined the barb wire fence. A Mr. LeCheminant bought the Dragos property from Mr. Anderson in 1915 and lived there until 1934. His son testified that he had lived there during those years and that in 1948 he examined all the old landmarks and believed the fence to still be in the same place as it previously was when he lived there, inferring that the old fence line was north of the north wall of defendants' cabins. In 1928, Bernard McCabe purchased the Russell property from Mary A. Duncombe. Mr. McCabe built a row of tourist cabins along the north side of his property. Extra foundations were poured for additional cabins which were to be built at some future time. It is undisputed that these foundations were on the Russell lot. The fence was variously estimated to be from six inches to three feet north of the foundations. No objections about any encroachment were made by Mr. LeCheminant who was Mr. McCabe's neighbor on the north at the time. The defendant, Mr. Russell, bought the property from Mr. McCabe in 1943. In 1944, Mr. Russell had all but one of the trees pulled up which grew along the line. In the process of removing the trees, much of the fence was torn down or destroyed. There is also evidence that a fire burned a portion of the fence which had been changed into a board fence by Mr. McCabe. But the conclusive evidence in the record is that in 1946 when the defendant built the cinder block cabins on the west end of the row of cabins, he used the old foundations which had been poured 18 years earlier by Mr. McCabe. The cabins did not 'exceed in any way the old foundations laid there'. They did not go any further north. These foundations were made of concrete. They were 18 inches deep, six to eight inches wide and 14 to 15 feet long. When they were poured, the fence was north of them, and no one claims they have been moved! The interpretation of the trial court's finding is that the fence has always been right where a survey now reveals the deed line to be, cutting off 2.7 feet of the defendants' cabins. Manifestly, this cannot be so.

Mr....