Peterson v. Johnson
| Decision Date | 27 July 1934 |
| Docket Number | 5385 |
| Citation | 84 Utah 89,34 P.2d 697 |
| Court | Utah Supreme Court |
| Parties | PETERSON v. JOHNSON |
Appeal from District Court, Sixth District, Sevier County; N. J Bates, Judge.
Suit by John W. Peterson against James M. Johnson. From the decree the defendant appeals.
AFFIRMED.
J Vernon Erickson, of Richfield, for appellant.
Henry E. Beal, of Richfield, for respondent.
Plaintiff brought suit to acquire title to eighteen acres of land in Sevier county, Utah. Defendant answered denying plaintiff's title and alleged that he (defendant) is the owner of about one acre of the land claimed by plaintiff. The claim of defendant to the land in controversy is bottomed on an alleged long-established boundary line between his land and the land claimed by plaintiff. A trial to the court, sitting without a jury, resulted in a decree quieting in plaintiff the title to the land in dispute. Defendant appeals. Error is assigned because the trial court failed to find that a boundary line between plaintiff's and defendant's lands had been established and acquiesced in for such a long period of time as to preclude plaintiff from questioning such boundary as the true line dividing their premises and that the evidence was insufficient to support the finding that plaintiff is the owner of the land claimed by him.
The evidence without substantial conflict shows the following facts: The land owned by the defendant and that claimed by plaintiff are coterminous. About thirty or forty years prior to the commencement of this suit, one Mr. Peterson erected a fence consisting of posts to which were attached barbed wires along the line which defendant claims is the established line between his land and that claimed by plaintiff. At the time the fence was erected, Mr. Peterson (not the plaintiff) was the owner of the land now owned by defendant. The land now claimed by plaintiff was a part of the public domain at the time the fence was erected. For about ten or fifteen years the fence so erected by Mr. Peterson was kept in repair. The land inclosed within the fence was planted to grain a year or two, but for the most part was used for pasture. About twenty-five years before this suit was commenced, Mr. Peterson disposed of the land now owned by defendant, and soon thereafter the fence was allowed to get out of repair. The barbed wire became unfastened from the posts and some of the posts were broken off. About twelve years before the trial of this cause, a Mr. Oldroyd refastened the wire to the posts and used the land for one summer as a pasture for his horses. The fence was again permitted to get out of repair and remained so until a short time before this suit was begun, when defendant erected a new fence along the line of the old fence. A few of the posts which were in the old fence were still standing and these were used in the newly erected fence. The record is silent as to when the land now claimed by plaintiff was segregated from the public domain. Plaintiff's title is founded upon a quitclaim deed from Rudolph Rickenbach, Jr., who in turn acquired such title as he had from Sevier county. The deed from Rickenbach to plaintiff was received in evidence. The deed from Sevier county to Rickenbach was not offered or received in evidence. During the course of the trial the following occurred:
Mr. Beal (counsel for plaintiff): "May it be stipulated, Mr. Erickson, that the deed for this is from the county without introducing the deed itself?"
Mr. Erickson (counsel for defendant): "I will admit that the county gave him (Rickenbach) a quit claim deed to this tract of land described in the complaint."
The Court: "And that his quit claim deed included the tract of ground in dispute?"
Mr. Erickson: "I cannot stipulate to the validity of the deed but I would stipulate that he received a deed from the county to this land approximately as described."
Mr. Rickenbach testified without objection that he received a deed from Sevier county to the property which he later conveyed to the plaintiff. At first it was stated by the witness that he supposed it was a warranty deed, but later he said it was a tax sale deed. The record is silent as to who owned the land prior to the time it was sold for taxes. It is further made to appear that the strip of land in dispute is within the description contained in plaintiff's deed and that defendant has all of the land covered by the description of his deed independent of the land in controversy. So far as appears, neither defendant nor his predecessors in interest had paid any taxes on the land in dispute, nor had they placed any improvements thereon other than the fence along the line which defendant seeks to have adjudicated as the boundary line.
It is clear that defendant has failed to make out a case entitling him to title by adverse possession because there is no evidence that either he or his predecessors paid any taxes on the disputed strip of land. Rev. St. Utah 19...
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...209 P.2d 257, 260 (1949); Home Owners' Loan Corp. v. Dudley, 105 Utah 208, 219, 141 P.2d 160, 166 (1943); Peterson v. Johnson, 84 Utah 89, 93, 34 P.2d 697, 698-99 (1934). Although there are admittedly some other opinions throughout this period that make no mention of a showing of uncertaint......
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