Morris v. Blunt

• Decision Date: 05 December 1916
• Docket Number: 2814
• Court: Utah Supreme Court
• Parties: MORRIS v. BLUNT ET AL

161 P. 1127

49 Utah 243

MORRIS v. BLUNT ET AL

No. 2814

Supreme Court of Utah

December 5, 1916

Rehearing denied December 30, 1916.

Appeal from District Court, Third District; Hon. J. A. Howell Presiding Judge.

Suit by Joseph N. Morris against Joseph Blunt, administrator of the estate of Jane Kersey, deceased, and others.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

C. W Collins for appellants.

A. A. Duncan for respondent.

LOOFBOUROW, District Judge. STRAUP, C. J., and FRICK, J., concur.

OPINION

LOOFBOUROW, District Judge.

This action was brought in equity to quiet title to certain lands and to restrain the defendants from interfering with the plaintiff's peaceable possession of the same. The plaintiff alleges title to the land and that the defendants wrongfully removed fence posts placed thereon by plaintiff, and threaten to remove them as often as plaintiff replaces them, and that defendants at divers times have crossed over said land with vehicles and on foot, and will continue to so interfere with the peaceable possession of plaintiff unless restrained, and plaintiff prays for a decree quieting title and enjoining the defendants from trespassing on said land.

The defendants admit that plaintiff owns the land in question, but they claim a right of way across a part of said land for themselves, and that the roadway so used by them is a public highway. They admit that one of the defendants removed from said roadway certain posts placed thereon by plaintiff, and that they travel said road, but deny that they are trespassers thereon. They allege that on October 8, 1887, the plaintiff conveyed by warranty deed to Jane Kersey, now deceased, and through whom the defendants claim, the land that the defendants now occupy and which lies directly to the north of plaintiff's land, the boundary line being the north side of a canal running east and west between the two tracts, with all appurtenances thereto, and a right of way for ingress and egress over and across the lands of plaintiff with vehicles and domestic animals, that for fifteen years prior to the making of said deed, and at the time of said conveyance, the road in question existed and was and had been used by the public, and that it was a well-defined, clearly marked road, and allege that the plaintiff has, by various acts, attempted to interfere with the use of said highway; and the defendants ask that their right in said road be decreed to them, and that the plaintiff be enjoined from further interfering with the peaceable possession of said right by the defendants. The following sketch will explain the situation of the lands of the respective parties, the location of the canal, and the right of way in dispute:

[SEE SKETCH IN ORIGINAL]

The district court made findings of fact to the following effect, to wit: That the deed in question was executed and delivered by the plaintiff, Joseph N. Morris, to Jane Kersey on October 8, 1887, and that, after describing the land by metes and bounds, it contained the following clause:

"Together with a right of way for ingress and egress to said land from east line of said section over a strip of land one rod wide along the south side of and following the course of said Utah & Salt Lake Canal, said right of way to include the right of ingress and egress to and from said land first above conveyed with vehicles and domestic animals of all kinds at any and all times."

That subsequent to said conveyance said Jane Kersey died, leaving the defendants, except Joseph Blunt, her heirs, and that Joseph Blunt is the administrator of the estate of the said Jane Kersey, deceased. That the road in question is not, and never was, a public highway. That the canal through the lands in question has a shoulder or bank about eighteen inches above the general level of the land and extending from 1 to 1 1/2 rods south from the water's edge and along the south side of said canal. That the meaning of the phrase "a strip of land one rod wide along the south side of and following the course of said Utah & Salt Lake Canal" is that the south side of said canal is the outer edge of said shoulder or bank, and that the right of way specifically mentioned in the deed extends along the south or outer edge of said shoulder and extends from the east section line westerly along the course above indicated parallel to and 1 1/2 rods south of the high-water mark, following the meanderings thereof, more or less, to a point directly south of the southeast corner of defendants' land; thence westerly 2 1/2 rods; thence north across the canal to the land of the plaintiff, thereby leaving a square 2 1/2 rods each way for the purpose of turning and crossing the canal. That the defendants have no right or interest in the lands of the plaintiff other than as above indicated. The court issued an injunction restraining the defendants from in any manner interfering with the use by plaintiff of the lands owned by him, except as above indicated, thus closing to the defendants the road from about the southeast corner of defendants' land to the point where said road formerly crossed the canal a distance of about twenty rods.

The defendants at once perfected this appeal, assigning numerous errors which are specifically as follows: (1) That the court was wrong in its findings that the whole road was not a public highway; (2) wrong in its finding and conclusion that the strip of road about twenty rods in length from the east line of the defendants' land westerly to the point where formerly said road crossed the canal, did not pass to the defendants under the deed mentioned as an appurtenance to the land.

Upon examining the record and the evidence, we find that this suit was filed June 20, 1914. The evidence shows that on October 8, 1887, when Jane Kersey became the owner of the land now held by the defendants by a conveyance from the plaintiff, the road extended west of the east line of her property about twenty rods, and then turned north across the canal; that the road before that time had continued on west on the south side of the canal from that point through the section, and some of the people who lived to the west and those working on the canal traveled said road frequently; that it was unimproved, marked only by wheel tracks which were plainly visible; that it was open, without gates; that there were no signs to the effect that it was a private highway, and that there never have been such signs along the road; that the house bought by Jane Kersey, with the land, faced toward this road that extended west of the point where the district court found it turned north across the canal; that the Kersey place has been continuously occupied, and the occupants and the visitors traveled the road to and from the house; that there has been no change in the location of the road; that it is in substantially the same position on the ground now that it was twenty-seven years ago; that in making and cleaning the canal the excavated material and debris were thrown out on the south side of the canal, making the surface of the ground rough and uneven for a distance of 1 to 1 1/2 rods along the south side of the canal and through its entire length upon the land in question; that numerous boulders were thrown out of the canal; that no bridge existed at the point where defendants contend the road should cross the canal; that in about 1912 the plaintiff plowed the road to the canal bank, and that frequently, in plowing the lands adjoining the road, plaintiff deposited boulders from his land upon the road; that the defendants, with shovels, leveled the road and threw the rocks to the north toward the canal, and continued to travel the road as before; that in 1914 plaintiff set posts in the roadway where defendants crossed the canal, turning north, and that the defendants, or some of them, removed said posts and threw them aside and continued to cross at that point; that plaintiff closed the road on the south side of the canal running west from the defendants' present crossing in about 1910; that the road was plowed by plaintiff in about 1904; that in about 1907 plaintiff placed a wire gate at the public highway along the east line of the section; that defendants objected and cut it down; that the water in the canal is about sixteen feet wide; that the company does not have title to the land covered by the canal, and claims only by usage; that there is no bridge across the canal to the Jane Kersey place.

It will be seen that the defendants' complaint in this court is as to that part of the decree that turns the road across the canal at about the southeast corner of the defendants' land, instead of permitting an extension of twenty rods to the west, and then turn north across the canal as it did formerly.

They rely upon three grounds to hold the road in question, to wit: (1) That by long continual use it has become a public highway; (2) that by their and Mrs. Kersey's use they have an easement by prescription; (3) that said road was granted by said deed, both by the description of a road one rod wide, specially described, and also by reason of said road being appurtenant to the land conveyed in the deed. We will examine these questions in order:

First, that by long continual use the twenty rods of road in question has become a public highway; that is, that there has been a dedication by the owner to the public use and an acceptance by the public.

A dedication rests primarily in the intent of the owner. There must be a concession intentionally made by him, which may be proved by declarations or by acts, or may be inferred from circumstances. No form or ceremony is necessary. It must however, appear that he knew of the use by the public, and intended to grant the...