Home Owners' Loan Corp. v. Dudley

• Decision Date: 07 September 1943
• Docket Number: 6492
• Citation: 105 Utah 208,141 P.2d 160
• Parties: HOME OWNERS' LOAN CORPORATION v. DUDLEY et al
• Court: Utah Supreme Court

141 P.2d 160

105 Utah 208

HOME OWNERS' LOAN CORPORATION v. DUDLEY et al

No. 6492

Supreme Court of Utah

September 7, 1943

Rehearing denied February 25, 1944.

Appeal from District Court, Fourth District, Utah County; Dallas H Young, Judge.

Action by Home Owners' Loan Corporation, a corporate instrumentality of the United States of America, against Joseph W. Dudley, administrator of the estate of Joseph Dudley, deceased, and others, to quiet title to realty wherein Inger K. Olesen Nybo, one of the defendants, filed a counterclaim and cross-complaint against plaintiff and other defendants to quiet her title to certain realty partly included in tract claimed by plaintiff. From a judgment quieting title in plaintiff and denying cross-complainant any relief, cross-complainant appeals.

Judgment reversed and cause remanded with directions.

Elias Hansen, of Salt Lake City, for appellant.

Samuel J. Carter, of Salt Lake City, for respondent.

McDONOUGH, Justice. WOLFE, C.J., and LARSEN and MOFFAT, JJ., concur. HOYT, District Judge dissenting. PRATT, J., on leave of absence.

OPINION

McDONOUGH, Justice.

The trial court entered judgment and decree quieting title in plaintiff corporation to all of a tract of land in Utah County hereinafter described as Tract C, which was enclosed by a fence. Defendant and appellant Inger K. Olesen Nybo counterclaimed and cross-complained against plaintiff and other defendants to quiet her title to a tract of land described as follows: Beginning 10.5 chains west and south 5 degrees 30 minutes east 10.44 chains from the northeast corner of the southeast quarter of section 25, township 8 south, range 2 east of the Salt Lake Meridian; thence south 5 degrees 30 minutes east 5.5 chains; thence west 1.1 chains; thence north 5 degrees 30 minutes west 5.5 chains; thence east 1.1 chains to the place of beginning. This tract to which appellant claims title we will refer to hereafter as Tract A.

Plaintiff proved a record title to realty hereinafter designated as Tract B, which practically adjoins Tract A on the east; but the decree as well as the complaint declare plaintiff to be the owner of Tract C which includes not only a substantial part of Tract B to which appellant claims no title at all, but which includes nearly all of Tract A to which appellant does assert title. Plaintiff acquired the record title to Tract B by warranty deed on June 8, 1936, from Moses W. Beckstead and wife. The tract so deappellant claims title. The westerly boundary of Tract B is 72.6 feet east of the state highway, and it is slightly east of the easterly boundary line of land described as Tract A. The accompanying plat illustrates the claims of the respective parties, and the boundaries of Tracts A and B, and how Tract C to which plaintiff acquired a decree quieting title, overlaps on, but does not entirely cover Tracts A and B. The boundaries of Tract A are indicated by a dotted line, Tract B by a thin line, and Tract C which follows the fences, by a heavy line.

[SEE DIAGRAM IN ORIGINAL]

By its complaint plaintiff alleges title generally to Tract C, and by her answer, counterclaim and cross-complaint defendant and appellant alleges ownership in fee of Tract A and she denies that plaintiff has any right, title, equity or interest in Tract A, except a right of way one rod in width across said tract to the state highway. She also alleges payment of all taxes assessed against said tract of land. By its reply plaintiff alleges in substance that "for more than 20 years" it and "its predecessors in title have occupied, under a claim of right and adversely to the whole world," the tract of land described in the complaint (Tract C), and "that for more than said period of 20 years, said described real property was and now is enclosed with a substantial wire fence; and said real property has been, during said period of time, continuously cultivated and occupied by cross-defendant Home Owners' Loan Corporation, and its predecessors in title, and that said use and occupation was and has been, during said period of more than 20 years, peaceable, without interruption, open, notorious and exclusive." Plaintiff does not, however, allege payment of any taxes.

Findings of fact, conclusions of law, and judgment and decree were entered in favor of respondent corporation, and defendant was denied any relief against any of the parties to the action. By this appeal appellant contends that the evidence does not support the findings of fact, conclusions of law or the judgment and decree; and that the lower court erred in finding that plaintiff and its predecessors in title were in adverse possession of the disputed area for 20 years, in that there were no taxes paid by plaintiff or its alleged predecessors in title for the tract of land in dispute. Appellant also claims the trial court erred in refusing to grant judgment and decree quieting her title against plaintiff and all of the cross-defendants.

Respondent contends that there is competent evidence to support the judgment of the lower court on the basis of any one or more of the following claims of acquired title: (1) That plaintiff established a record title and proved defendant has no title. (2) That for many years the fence along the east side of the highway was acquiesced in as the westerly boundary line of land to which plaintiff acquired the record title. (3) That plaintiff and its predecessors in interest acquired title to the disputed area by adverse possession without payment of any taxes because no taxes were lawfully assessed. Appellant argues that the foregoing three theories on which plaintiff was permitted to proceed at the trial are inconsistent and that plaintiff should have been required to make an election. Without any attempt to determine whether plaintiff needed to make any election in view of the particular facts of this case, we shall examine the contentions of respondent to ascertain whether they actually dispose of the errors assigned by appellant.

In support of its claim of record title, plaintiff produced in evidence the abstract of title and a plat map of a survey made by a licensed surveyor in 1939, neither of which shows any record title in plaintiff to the area in dispute. This suit was not instituted against appellant Mrs. Nybo for reformation of any deed which she delivered to some predecessor in title to plaintiff, on any theory that there was a misdescription. Plaintiff's record title to Tract B came through Mrs. Nybo, who at one time owned not only Tract B to which plaintiff acquired the record title through mesne conveyances, but also a great deal of the adjourning areas.

The surveyor who made the fence-line survey for plaintiff, and who furnished plaintiff with the description of Tract C used in the complaint, testified that he located the starting point with reference to the relocated east quarter corner monument of section 25. Such relocation was made in about 1910. Both the record title and the description contained in the complaint, are based on the relocated monument. There is no allegation nor evidence to the contrary. In order to get a starting point which would be on the east line of the state highway instead of according to the call in the record title, the description of Tract C in the complaint is made to start 10.596 chains west instead of 10.56 chains west, and 10.905 chains south instead of 11.0 chains south six degrees east. The call from the monument to the starting point for Tract B to which plaintiff acquired the record title, is 72.6 feet easterly from the starting point of Tract C which covers most of Tract A. The starting point for Tract C on which the decree is based differs from the starting point for Tract B, in that the point is on the easterly line of the state highway and is obtained by adding 2.376 feet to the first course from the monument and by eliminating the bearing of six degrees to the east from a due south course. Thus it appears that as far as the record title is concerned, substantially all, if not all of the difference between the claims of respondent and appellant arise from the fact that the record title description of Tract B commences "10.56 chains west and 11.0 chains South 6 [degree] East" from the east quarter corner of the section, while the beginning point of Tract C described in the complaint and in the decree which covers nearly all of Tract A, is described as "10.596 chains west and 10.905 chains south," the bearing to the east being eliminated.

Plaintiff's description of Tract C is made with reference to the relocated monument as are all of the other descriptions. Although plaintiff described the tract with reference to the present location of the east quarter monument, and relied on the relocated monument for purposes of showing boundaries, it attempted to introduce evidence to show that the relocated monument is not in the original location. No field notes from the surveyor general's office nor actual surveys between monuments, were offered to show where the monument was originally located, if in a different location. The original location of a monument controls, and if it is obliterated, the court is concerned in ascertaining where it was originally located. Henrie v. Hyer, 92 Utah 530, 70 P.2d 154; Roach v. Dahl, 84 Utah 377, 35 P.2d 993; Moyer v. Langton, 37 Utah 9, 106 P. 508. A survey monument relocated by proper authority is presumed to be placed where the surveyor originally located it, until and unless the contrary is shown by competent evidence.

Plaintiff offered a private survey plat of certain lands made in 1880 but the chart or map does not purport to show a survey of the disputed area. The witness who testified was not the surveyor who prepared the map, but he was...