Gillmor v. Cummings

• Decision Date: 28 September 1995
• Docket Number: No. 940490-CA,940490-CA
• Citation: 904 P.2d 703
• Parties: Charles F. GILLMOR and Nadine Gillmor, Plaintiffs, Appellees, and Cross-Appellants, v. Veigh CUMMINGS; Jeffrey K. Garlick; W. Allan Pelton; Craig Haren; Julie Haren; Gerald Wohlford; Penelope Wohlford; Timber Lakes Corporation, a Utah corporation; and Valley Bank and Trust Company as Trustee for the W. Allan Pelton Trust, Defendants, Appellant, and Cross-Appellee.
• Court: Utah Court of Appeals

Page 703

904 P.2d 703

Charles F. GILLMOR and Nadine Gillmor, Plaintiffs Appellees, and Cross-Appellants, v. Veigh CUMMINGS; Jeffrey K. Garlick; W. Allan Pelton Craig Haren; Julie Haren; Gerald Wohlford; Penelope Wohlford; Timber Lakes Corporation, a Utah corporation and Valley Bank and Trust Company as Trustee for the W Allan Pelton Trust, Defendants, Appellant, and Cross-Appellee.

No. 940490-CA.

Court of Appeals of Utah.

Sept. 28, 1995.

Lowell V. Summerhays, Murray, for Appellants Veigh Cummings and Timber Lakes.

Gerald H. Kinghorn and R.L. Knuth, Salt Lake City, for Appellees.

Before BILLINGS, GARFF, ¹ and JACKSON, JJ.

OPINION

JACKSON, Judge:

Veigh Cummings appeals from the trial court's judgment and decree of quiet title, awarding Charles and Nadine Gillmor title to the subject property and special damages in the form of attorney fees. The Gillmors cross-appeal on the amount of attorney fees awarded by the trial court. We affirm in part and reverse and remand in part.

FACTS

This case concerns a dispute surrounding title to a triangular parcel of ground in Summit County lying to the west of what is commonly referred to as Old Ranch Road. Charles R. Spencer divided his property, deeding the east part to the Gillmors' predecessor under a warranty deed dated October 25, 1926, and the west part to Cummings' grantors, Emil and Bernice Marcellin, under an October 30, 1930 warranty deed. Both deeds from Spencer contain identical boundary line descriptions for the common boundary. The deed from the Marcellins to the Cummings also contains the identical description. The description of the pertinent boundary line, in all three deeds, states as follows:

thence West approximately 5 rods to a point on the Easterly side of the aforesaid 6 rod wide road and at a point 3 rods Easterly from the center line of said road and at right angles thereto; thence along the Easterly side of said road and 3 rods Easterly from the center line thereof and at right angles thereto, Northerly and Westerly to a point 3 rods East from the Southwest corner of the Northwest Quarter of Section 28, aforesaid; thence West 3 rods; thence Northwesterly on a direct line 61 rods, more or less, to the point of beginning.

(Emphasis added).

Cummings asserts that the italicized call must be interpreted so that the boundary line in question necessarily lies on the east side of the road. However, the trial court found the boundary to be located to the west of the road. The Gillmors contend that even if the pertinent metes and bounds call is to a point on the east side of the road, the evidence shows that the road was moved to the east after the deed was delivered.

When Cummings purchased his property and received his deed, he testified that he did not try to locate any of the boundaries described therein. Rather, he hired a surveyor, Parley Neeley, to survey the property. Cummings instructed Neeley to use the center of the road as his east boundary line.

Cummings subsequently gave certain deeds to Allan Pelton, in which the descriptions allegedly overlap the west boundary of the Gillmors' property. Pelton in turn sold portions of the disputed property under deeds he gave to the remaining defendants. The Gillmors brought an action against Cummings to quiet title and for slander of title damages. The Gillmors also sued Cummings' successors regarding their titles to portions of the disputed property. All defendants except Cummings settled with the Gillmors prior to trial by purchasing title to the property they occupied.

The trial court found that Cummings had slandered the Gillmors' title and awarded the Gillmors special damages in the form of attorney fees and costs.

ISSUES

Cummings claims (1) insufficient evidence exists to support the trial court's finding that the Gillmors are the proper owners of the property and thus, the trial court improperly quieted title in the Gillmors; (2) insufficient evidence exists to support the trial court's determination that the boundary between Cummings' and Gillmors' property was not established by acquiescence; (3) insufficient evidence exists to support the trial court's determination that Cummings, with malice, published documents defaming the Gillmors' title to their property; and (4) the trial court improperly awarded special damages to the Gillmors. ²

ANALYSIS

Insufficiency of Evidence Claims

A trial court's findings of fact are reviewed under a clearly erroneous standard. Alta Indus. Ltd. v. Hurst, 846 P.2d 1282, 1286 (Utah 1993); Sorenson v. Kennecott-Utah Copper Corp., 873 P.2d 1141, 1147 (Utah App.1994). If, viewing the evidence in the light most favorable to the trial court's determination, a factual finding is based on sufficient evidence, the finding is not clearly erroneous. State v. Pena, 869 P.2d 932, 935-36 (Utah 1994); Greenwood v. City of North Salt Lake, 817 P.2d 816, 818-19 (Utah 1991); Clair W. & Gladys Judd Family Ltd. Partnership v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990) (concluding that even though record contained conflicting evidence, trial court's finding was supported by sufficient evidence).

The clearly erroneous standard is highly deferential to the trial court's decisions because the witnesses and parties appear before the trial court and the evidence is presented there. Pena, 869 P.2d at 936. Thus, the trial judge is "considered to be in the best position to assess the credibility of witnesses and to derive a sense of the proceeding as a whole, something an appellate court cannot hope to garner from a cold record." Id. (citing In re J. Children, 664 P.2d 1158, 1161 (Utah 1983)).

1. Quiet Title

Cummings claims there is insufficient evidence to support the trial court's finding that the Gillmors are the proper owners of the property and that the trial court improperly quieted title in the Gillmors. The trial court found that the Gillmors' survey witness, James West, "was more credible to the court in his explanation and opinion concerning the interpretation of the relevant legal description." The court then found that based on West's interpretation of the legal description, Cummings "has never had any interest in the disputed property."

The fundamental dispute concerns the correct interpretation of the following boundary line description: "to a point three rods East from the Southwest corner of the Northwest Quarter of Section 28, aforesaid; thence West 3 rods; thence Northwesterly on a direct line 61 rods, more or less, to the point of beginning." Cummings asserts that the call must be interpreted so that the point "3 rods East from the Southwest corner of the Northwest Quarter of Section 28" necessarily lies on the east side of the road. However, West's interpretation of the deed's call, accepted by the trial court, is that the line leaves the road and does not relate to any monument but rather runs to a theoretical point lying three rods east of the quarter corner.

If a deed description is unambiguous, its interpretation is a question of law. Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979). It is the court's duty to construe instruments as written and deeds are to be construed like other written instruments. Id. When a deed is plain and unambiguous, "parol evidence is not admissible to vary its terms." Id. We conclude the instant boundary description is unambiguous. ³ The description in question says "to a point." "The words 'to a point' indicate that the limit is not set by a physical feature, but by a theoretical location." Stephen V. Estopinal, A Guide to Understanding Land Surveys 171 (1989). If the deed description had intended to use the road to define the boundary, as asserted by Cummings, the description would have followed the east side of the road to the point of beginning rather than calling to a point 3 rods east of the quarter corner. Here, the deed refers to the section quarter corner and follows from that, not from the road. ⁴ Accordingly, we find the description to be unambiguous and that sufficient evidence exists to support the trial court's finding that the Gillmors are the proper owners of the described property.

2. Boundary by Acquiescence

Cummings claims that even if the deed description unambiguously states that the property belongs to the Gillmors, the trial court erred by finding that a new boundary was not established by acquiescence. He asserts that no evidence exists in the record to show that a boundary was not established by acquiescence. Thus, he claims the trial court's finding is clearly erroneous. Under the doctrine of boundary by acquiescence, property rights are determined by actual possession of land. Carter v. Hanrath, 885 P.2d 801, 804 (Utah App.1994), cert. granted, 899 P.2d 1231 (Utah 1995). The elements of this doctrine are (1) occupation up to a visible line marked by monuments, fences, or buildings, (2) mutual acquiescence to the line as a boundary, (3) for a long period of time, generally not less than 20 years, (4) by adjoining landowners. Id. (citing Staker v. Ainsworth, 785 P.2d 417, 420 (Utah 1990)).

Cummings testified that a fence had been the boundary line since 1964, that a single, identified fence had been recognized as the boundary, that the fence line had never moved, and that no one complained of his occupancy of the property up to the fence. However, the trial court found that Cummings had not established a new boundary by acquiescence. ⁵

Contrary to Cummings' assertion that no evidence exists to support the trial court's finding, the record contains testimony by Frank Marcellin, a long-time resident of the area, that although there was a fence along the west of Old Ranch Road by 1964, that fence was "moved," it was taken down "three or four years later," and a new fence was put up within a year.

A boundary line must be definite and certain, it " 'must have certain physical properties such as visibility, permanence, stability, and a definite location.' " Englert v. Zane, 848 P.2d 165, 169 (...