Mallory v. Taggart, 11919
| Decision Date | 26 May 1970 |
| Docket Number | No. 11919,11919 |
| Parties | d 267 Raymond MALLORY, Plaintiff and Appellant, v. Charles W. TAGGART, Zions First National Bank, et al., Defendants and Respondents. |
| Court | Utah Supreme Court |
Dwight L. King, Salt Lake City, for plaintiff and appellant.
Louis M. Hansen, Henry D. Moyle, Jr., Salt Lake City, for defendants and respondents.
The plaintiff appeals from a judgment in his favor in the amount of $12,631.25 and contends that it should have been for $24,026.10. The case was tried to the court without a jury and arose out of the following facts:
The plaintiff agreed to sell to the defendant Taggart 140 shares of corporate stock, and Taggart agreed to pay therefor the sum of $76,000 based upon the plaintiff's representation that the corporation could give good title to 980 acres of land which it owned. The parties mutually agreed that if good title could be given to more or less than 980 acres, the price of $76,000 was to be multiplied by a fraction, the numerator of which would be the actual acres to be conveyed and the denominator would be 980.
A part of the land owned by the corporation was subdivided in 1890 and 1891 by its then owner, and plats showing lots, streets, and alleyways were duly filed in the office of the county recorder of Salt Lake County. The contract for sale of the stock provided: 'The corporation is the owner in fee, subject only to easements of record, of 980 acres more or less of land, * * *'
The principal question presented by this appeal is whether the corporation can give good title to the acreage included in the streets and alleyways as shown by the plats on file.
Such streets and alleyways exist only on paper, since nothing has ever been done by way of opening them to the public or laying them out on the ground. The corporation owns all of the land which was platted, and no rights in and to the alleyways and streets exist in any third parties.
Chapter 50, Laws of Utah 1890, after providing for the laying out and platting of land by an owner, reads as follows:
Such maps and plats when made, acknowledged, filed and recorded with the county recorder shall be a dedication of all such avenues, streets, lanes, alleys, commons or other public places or blocks, and sufficient to vest the fee of such parcels of land as are therein expressed, named or intended for public uses for the inhabitants of such town and for the public for the uses therein named, or intended.
This statute dedicated to the public only the surface rights to the use of the streets, alleyways, and so forth, as is shown by the case of Sowadzki v. Salt Lake County, 36 Utah 127, 104 P. 111, 117 (1909). That case is squarely in point with the instant matter. There the owner of a five-acre tract of land had it surveyed, platted, and recorded in the office of the Salt Lake County Recorder in July 1890. There, as in the instant case, the land lay outside of any incorporated city. The owner in that matter platted Wabash Avenue but never opened it up for the use of the public and never used it as a road. In 1907 the Salt Lake County Supervisor of Roads undertook to open up Wabash Avenue as shown on the plat. The owner brought the above entitled action to restrain the county from interfering with her property. The identical question was presented and argued to the court in that case which is involved in the matter now before us. There the court at page 142 of the Utah Reports, 104 P. at page 116, said:
* * * While the word 'fee' is used in the section, it is clear from what follows that it was not intended that the fee of the corpus or land itself should pass, but only the fee to the surface, and this only for public use for all purposes of a...
To continue reading
Request your trial
-
Kiely v. Graves
...v. Ambler, 1971 OK 154, 499 P.2d 433; Lee v. Musselshell County, 2004 MT 64, 320 Mont. 294, 87 P.3d 423; Mallory v. Taggart, 24 Utah 2d 267, 470 P.2d 254 (1970). ¶ 15 Here, the Powers made a statutory dedication, evidenced by the presentment for filing of a plat and its subsequent approval ......
-
Evans v. BOARD OF COUNTY COM'RS
...or not Pine Street existed as a public highway depends on the law in existence at the time of its platting. See Mallory v. Taggart, 24 Utah 2d 267, 470 P.2d 254, 256 (1970) (stating "[w]hatever may be the law now regarding ownership of dedicated streets, the law in force and effect when the......
-
City of Evanston v. Robinson
...of Education v. Barber, Wyo., 649 P.2d 681 (1982).5 Accord: Sears v. Ogden City, Utah, 572 P.2d 1359 (1977); Mallory v. Taggart, 24 Utah 2d 267, 470 P.2d 254 (1970); White v. Salt Lake City, 121 Utah 134, 239 P.2d 210 ...
-
Village of Kalkaska v. Shell Oil Co.
...such city or town, shall be deemed to be public property, and the fee thereof be vested in such city or town.' " Mallory v. Taggart, 24 Utah 2d 267, 269, 470 P.2d 254 (1970), where the statute provided: "Such maps and plats when made, acknowledged, filed and recorded with the county recorde......
-
CHAPTER 16 EXAMINATION OF TRACTS WITHIN TOWNSITES
...§ 10-9a-607 (LexisNexis 2013). [88] Sowadski v. Salt Lake County, 36 Utah 127 (Utah 1909). [89] Id. at 142, See also Mallory v. Taggart, 470 P.2d 254 (Utah 1970) (Citing Sowadski that statute dedicated only the surface rights to the street), but see White v. Salt Lake City, 239 P.2d 210 (Ut......