Lindsay Land & Livestock Co. v. Churnos
| Decision Date | 01 October 1929 |
| Docket Number | 4766 |
| Citation | 285 P. 646,75 Utah 384 |
| Parties | LINDSAY LAND & LIVE STOCK CO. v. CHURNOS et al |
| Court | Utah Supreme Court |
Rehearing Denied February 28, 1930.
Appeal from District Court, First District, Cache County; M. C Harris, Judge.
Action by the Lindsay Land & Live Stock Company against Nick Churnos and others. Judgment for defendants, and plaintiff appeals.
AFFIRMED.
E. A Walton and Wilson & Barnes, all of Salt Lake City, for appellant.
Thatcher & Young, of Ogden, and W. E. Davis, of Brigham, for respondents.
The plaintiff, alleging that it was the owner and in possession of an extensive tract of uninclosed grazing lands in Cache county, and that defendants had driven and threatened to continue to drive large herds of sheep over and across the same, brought this action to enjoin defendants from trespassing on its lands, to quiet the plaintiff's title thereto and to recover damages sustained by trespasses thereon. The defendants justified driving their herds across the plaintiff's lands, and their right to continue doing so, by alleging the existence of a public highway across the plaintiff's lands, along and upon which their herds had been, and in the future were intended to be driven.
The case was tried by the court without a jury. A judgment and decree was made and entered in favor of the defendants, from which the plaintiff has appealed.
The trial court made findings of fact, to the effect that about the year 1876 there was laid out over and across the lands in question, when the same were a part of the public domain, a certain described roadway or trial, which was thereafter, and up to the filing of this action, continually used as a public thoroughfare, and concluded that, because of said use, the same became and was dedicated and abandoned to the public as and for a public highway. There were further findings that during and between the years 1894 and 1904, the title to the lands in question passed from the United States to the plaintiff or its grantors, and that since that time the claimed highway had been used by the public generally for travel thereon, under a claim of right, continuously and adversely, and without interference or objection on the part of the owners of the land, etc.
The appeal presents several formal assignments of error, but the decisive question and the only one which needs to be considered is whether the evidence is sufficient to justify the findings respecting the existence of a public highway over the plaintiff's lands. The evidence is substantially uncontradicted and may be generally summarized as follows:
The lands over which the highway is claimed are uninclosed and uninhabited mountain lands, suitable only for grazing purposes, and situated near the southern border of Cache county. The road extends across the lands in a general easterly and westerly direction following a part of its distance through a narrow canyon or pass called Davenport canyon. At the eastern terminus of the road is a large area of mountain land valuable for grazing animals in the summer season, a portion of which is now the Cache National Forest, and a portion in private ownership. This area has been extensively used for summer grazing for many years, by owners of sheep who trailed them over the route in question from the settled portions of the country lying to west, to the summer range in the spring of the year and back again in the fall. In 1876 a sawmill was constructed in Davenport canyon and the road in question was first definitely located and commenced to be used. People generally from the cities and villages in Box Elder and Cache counties approaching from the West traveled the road for the purpose of hauling lumber from the sawmill, and others from Ogden City and Ogden Valley, who had access to the eastern terminus of the road in question, used it for similar purposes. Other sawmills were set up at different places along the road during the years before 1890, and the road was generally traveled by many persons who had occasion to do so for the purpose of hauling logs to the sawmills and hauling lumber and slabs therefrom, and going to and from the sawmills for other purposes. In about the year 1885 a mining excitement in the locality resulted in the establishment of a mining camp called La Plata near the road in question. Houses were built, a post office established, and several hundred people resided in the camp for five or more years. During this period the road in question was traveled extensively by the general public in going to and from the mining camp. During all of the time from 1876 until shortly before the commencement of this action the road was used by numerous owners of sheep who had occasion to go that way for the purpose of trailing their herds to and from the summer range, and for the purpose of moving their camps and supplies to their herds. The use of the road for this purpose was general and extensive. One witness stated that "there must have been a hundred herds that went up there," another that he had "seen as high as seven herds a day" going over the road. The mining business ceased in about the year 1890 and a few years later the saw mills disappeared. From since about the year 1900 the use of the road has been confined to stockmen driving their herds and hauling their supplies and camp outfits over it, and to a less frequent use by hunters, fishermen, and others who had occasion to travel over it. At times bridges were built and short dugways constructed by persons directly interested, but it does not appear that any public money was ever expended to maintain or repair the road. During the last four or five years the road in places has become impassable to ordinary vehicles and has been used only for driving animals, pack outfits, etc., over it. Before the year 1894 the lands traversed by the road were unappropriated public lands of the United States. During the period of 1894 to 1904 the title to the lands passed from the federal government to the plaintiff or its grantors. The use of the road as above described was not interrupted by the change in the title or ownership of the lands, but continued thereafter as before stated. There was evidence that the travel over the road did not always follow an identical or uniform line, but at times and in a few places varied somewhat therefrom, and that sheep when trailing across would sometimes depart from the line of the road. There was ample positive evidence, however, that the road as described by the findings and decree was substantially the line and course of the road as it had been traveled and used for more than fifty years.
Respecting the width of the road the witnesses who testified upon the subject varied in their estimations. One witness thought the road used was from two to four rods wide; another from three to five rods wide; another stated it as being one hundred feet or possibly a little more in width; while a witness for plaintiff stated that herds of sheep while trailing through occupied a space of two hundred yards on each side of the road. The trial court found and concluded that the road as established was one hundred feet in width.
The appellant contends that the claim of a public highway made by the defendants and decreed by the court cannot be sustained because the evidence does not establish a dedication of the highway nor justify a finding that the highway was created by prescription. It is further contended...
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...such circumstances as to clearly indicate an intention on the part of the public to accept the grant." Lindsay Land & Livestock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929). See also Boyer v. Clark, 7 Utah 2d 395, 326 P.2d 107, 109 (1958); Jeremy v. Bertagnole, 101 Utah 1, 116 P.2d 4......
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...over the public domain,'" and the grant may be accepted "without formal action by public authorities." Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), (quoting Streeter v. Stalnaker, 61 Neb. 205, 85 N.W. 47, 48 (1901)). In its Report to Congress on R.S. 2477: ......
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...Supreme Court held a nearly identical earlier version of this statute applicable to R.S. 2477 claims in Lindsay Land & Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (1929), relying on Laws of Utah 1886, ch. 12, § 2 ("A highway shall be deemed and taken as dedicated and abandoned t......
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