Park West Village, Inc. v. Avise

• Court: Utah Supreme Court
• Writing for the Court: HOWE; HALL
• Citation: Park West Village, Inc. v. Avise, 714 P.2d 1137 (Utah 1986)
• Decision Date: 20 February 1986
• Docket Number: No. 18720,18720
• Parties: PARK WEST VILLAGE, INC., a Utah corporation, Elwood Nielsen and Lynn Nielsen, Plaintiffs and Respondents, v. Gary AVISE and Susan Avise, Defendants, Third-Party Plaintiffs and Appellants, v. ROYAL STREET COMPANY, and all persons unknown claiming a right, title, estate or interest in real property described in the Counterclaim or Third-Party Complaint adverse to Plaintiffs' title or constituting a cloud thereon, Third-Party Defendants and Respondents.

Page 1137

714 P.2d 1137

PARK WEST VILLAGE, INC., a Utah corporation, Elwood Nielsen and Lynn Nielsen, Plaintiffs and Respondents, v. Gary AVISE and Susan Avise, Defendants, Third-Party Plaintiffs and Appellants, v. ROYAL STREET COMPANY, and all persons unknown claiming a

right, title, estate or interest in real property described

in the Counterclaim or Third-Party Complaint adverse to

Plaintiffs' title or constituting a cloud thereon,

Third-Party Defendants and Respondents.

No. 18720.

Supreme Court of Utah.

Feb. 20, 1986.

Robert Felton, Salt Lake City, for defendants, third-party plaintiffs and appellants.

Leonard J. Lewis, Salt Lake City, Tom Clyde, Park City, for plaintiffs and respondents.

HOWE, Justice:

Defendants, Gary and Susan Avise, appeal from a judgment quieting title to a tract of land on which they reside in plaintiffs and in third-party defendant Park City. Defendants are lessees of the tract and have an option to purchase it from their lessor. They contend that their lessor had acquired title by adverse possession.

Plaintiffs and Park City are the owners (subject to the claims of defendants) of adjoining tracts of land located just north and west of the old Union Pacific Depot in Park City, Utah. Straddling the boundary between these two tracts and overlapping a part of each tract is a much smaller tract consisting of one-third of an acre on which defendants reside under a lease with Eliza Lake (hereinafter called the Lake yard). Located in the Lake yard is a small house, an unattached garage, a garden, trees, and alfalfa. There are also two bridges over a small stream. The stream and a road run in front of the yard and the boundary of a road runs along the rear. The frontage and one side of the yard are fenced.

The genesis of the title to the Lake yard as a separate tract of real property begins with a quitclaim deed executed by Summit County to James R. Burbidge in 1941. The property conveyed is described simply as "New House East in Lumber Yard, Park City, Utah." The deed recited that the property had been sold to Summit County for delinquent taxes for the years 1932 to 1938, inclusive, in the name of James R. Burbidge. Later in 1941, Burbidge quitclaimed to Maynards "personal property" described as "that certain dwelling house, described as 'THE NEW HOUSE,' east, in the lumber yard" together with certain enumerated pieces of furniture. In 1952, Maynards quitclaimed "personal property" to Patrick H. Lake and Eliza B. Lake, husband and wife. The description in that deed was identical to the description contained in the prior deed to Maynards except for the reference to furniture. Mr. and Mrs. Lake lived on the premises until his death in 1966. She continued to live there until 1969, at which time she began renting the premises on a month-to-month basis. In May 1979, she and Gary Avise, who had been a tenant for several years, entered into a written "residential lease and option to purchase" for the "single family dwelling" described as "residence 106 Pacific, aka 106 Lumber Yard." The option allowed Avise to purchase the premises at any time during the five-year lease for $40,000.

In 1980, Eliza Lake entered into a written agreement to sell any interest she might have in the Lake yard to plaintiffs for $20,000, subject to any interest Avise might have under his lease and option to purchase. In performance of that agreement, Mrs. Lake executed to plaintiffs two quitclaim deeds. In one deed, she quitclaimed a dwelling house described as "the new house east, in the lumber yard, Park City." In the other deed, she quitclaimed a tract of land described by metes and bounds which included the two-thirds of the Lake yard claimed by plaintiffs.

Thereafter, plaintiffs instituted this action against defendants Avise to quiet title to the Lake yard. Park City appeared and claimed title to approximately one-third of the yard. Defendants Avise counterclaimed for specific performance of the option and deposited the required down payment into court. The trial court quieted the title to two-thirds of the Lake yard in plaintiffs and the other one-third in Park City, both subject to the unexpired lease in favor of defendants Avise. The option contained in the lease was held to be unenforceable on the ground that the description of the optioned premises was too vague and uncertain. The court found that Mrs. Lake had obtained a prescriptive easement to a portion of the yard, but that it was extinguished by merger when she quitclaimed the yard to plaintiffs.

Defendants appeal, contending that Mrs. Lake had acquired title to the Lake yard by adverse possession and that the description of the yard in the lease and option to purchase was sufficiently definite to be legally enforceable.

U.C.A., 1953, § 78-12-7.1 provides:

In every action for the recovery or possession of real property or to quiet title to or determine the owner thereof, the person establishing a legal title to such property shall be presumed to have been possessed thereof within the time required by law; and the occupation of such property by any other person shall be deemed to have been under and in subordination to the legal title, unless that it appears that such property has been held and possessed adversely to such legal title for seven years before the commencement of such action....

It is undisputed that Mrs. Lake and her husband entered into possession of the Lake yard in 1952 and continuously occupied the same, either personally or through her tenants, up until the commencement of this action. It is not known whether the Burbidges, and the Maynards before them, actually physically possessed the Lake yard. While it is true, as pointed out by plaintiffs, that the deed to the Lakes only purported to convey to them personal property described as a dwelling house, it is undisputed that the Lakes and their tenants occupied the yard in which the house was situated. The record shows that the yard was partially fenced and a fenced garden within the yard was established and cultivated. A garage was built and a porch was added to the house. The trial court expressly found that Mrs. Lake possessed the structure and the real property for more than twenty years and that her possession was open, notorious and hostile. Indeed, it was on the basis of that finding that the trial court held that Mrs. Lake acquired a prescriptive easement over part of the Lake yard. Defendants do not question that finding by way of any cross-appeal. It therefore appears that Mrs. Lake's possession satisfied the requirements of section 78-12-7.1.

The trial court held that Mrs. Lake had failed to acquire title to the Lake yard by adverse possession because of a failure of proof that she had paid the taxes assessed against the land during the period of her occupancy. U.C.A., 1953, § 78-12-12 provides:

In no case shall adverse possession be considered established under the provisions of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of seven years continuously, and that the party, his predecessors and grantors have paid all taxes which have been levied and assessed upon such land according to law.

It is not questioned that the Lakes received a tax notice each year and that they paid the tax which was levied. However, it appears that the property described on the tax notice was "new house east in lumber yard" and that the assessment was based upon the value of the improvements only. In holding against defendants' claim of adverse possession by Mrs. Lake, the trial court made the following two findings of fact:

14. The Summit County records established that taxes were assessed by the county on the subject property separately from the structure standing thereon.

15. The evidence presented at trial establishes that the taxes on the subject property were not paid by the defendants, or by Eliza Lake, or any of those predecessors in interest to Eliza Lake....

Contrary to finding No. 14, the...