Pioneer Investment & Trust Co. v. Board of Education of Salt Lake City

• Decision Date: 11 January 1909
• Docket Number: 1969
• Citation: 35 Utah 1,99 P. 150
• Parties: PIONEER INVESTMENT & TRUST COMPANY, a Corporation, Respondent, v. THE BOARD OF EDUCATION OF SALT LAKE CITY, a Corporation, Appellant
• Court: Utah Supreme Court

99 P. 150

35 Utah 1

PIONEER INVESTMENT & TRUST COMPANY, a Corporation, Respondent, v. THE BOARD OF EDUCATION OF SALT LAKE CITY, a Corporation, Appellant

No. 1969

Supreme Court of Utah

January 11, 1909

APPEAL from Third District Court, Salt Lake County. Hon. M. L Ritchie, Judge.

Action upon a covenant of warranty. From a judgment for plaintiff defendant appeals.

AFFIRMED.

Messrs Moyle & Van Cott for appellant.

APPELLANT'S AUTHORITIES.

In order that possession may be adverse it must be under a claim of title exclusive of any other right. (McCracken v. San Francisco, 16 Cal. 591; Unger v. Mooney, 63 Cal. 586.) Adverse possession to perfect the bar of the statute must be occupation under claim of title with knowledge and acquiescence of the other party. (American Company v. Bradford, 27 Cal. 360-66; Foulkner v. Rondoni, 104 Cal. 140-46; Dignan v. Nelson, 26 Utah 186; Colvin v. Republican Valley Land Association [Neb.], 36 N.W. 361; Ewing v. Burnet, 11 Peters 41; Probst v. Presbyterian Church, 129 U.S. 643; Compiled Laws of Utah 1907, sections 2864 and 2866; English v. Openshaw, 28 Utah 241; Salt Lake Investment Co. v. Fox, 32 Utah 301; Allen v. McKay & Co., 70 P. 8; Sedgwick and Wait on Trial of Title to Land, sec. 729; Jackson v. Thomas, 16 Johnson 293.) A title by adverse possession cannot be acquired against the appellant, it being a public corporation and holding said property in trust for school purposes. (Board of Education v. Martin [Cal.], 28 P. 799; Charlotte v. Pembroke Iron Works, 82 Me. 391; Ballard on Real Property, vol. 1, sec. 31.) Section 1912 of the Compiled Laws of Utah, 1907, constitute the Board of Education, a body corporate. See also sections 1892 and 1893.

C. S. Varian for respondent.

RESPONDENT'S AUTHORITIES.

Where there has been an actual possession, and the occupant has acted from the beginning as owners do, there is a just presumption that he was holding as owner, and inconsistently with the idea of title in any other than himself. (Davis v. Bowmar. 55 Miss. 671-742; Sedgwick & Wait on Title to Land (2d Ed.), sec. 758; Brummagin v. Bradshaw, 39 Cal. 46; Brown v. Volkening, 64 N.Y. 82; Toltec Ranch Co. v. Babcock, 24 Utah 191-2; Talburt v. Singleton, 42 Cal. 395; Newell on Ejectment, 429, sec. 2; Wolf v. Baldwin, 19 Cal. 314; Angel on Limitations [6 Ed.], sec. 390; Needham v. City, 7 Utah 319.) Intention to claim as owner in derogation of the rights of the true owner need not be oxpressed but may be inferred from the manner of occupancy. (Convers v. Kenan, 4 Ga. 308, 48 Am. Dec. 226; Dean v. Goddard, 55 Minn. 290.) And permanent valuable improvements made upon the land and used by the claimant would tend to show an intention to hold adversely. (Hamilton v. West, 63 Mo. 93; 1 Am. & Eng. Ency. of Law [2d Ed], p. 826.)

The Board of Education held the property in its proprietary capacity with the power of alienation and was subject to all the liabilities of private ownership. (Compiled Laws of Utah, sections 1912 and 1913; Hoadley v. San Francisco, 50 Cal. 265; Wood on Limitations [2d Ed.], sec. 53; Dillon on Municipal Corporations [3d Ed.], sec. 688; Sedgwick & Wait on Trial of Title to Land [2d Ed.], 611, sec. 753-A; Shelby Co. v. Bickford, 102 Tenn. 395, 52 S.W. 772; School Directors v. George, 50 Mo. 194; Cincinnati v. Evans, 5 Ohio St. 594; Hartman v. Hunter [Ohio], 46 N.E. 577; Cincinnati v. First Presbyterian Church, 8 Ohio 299; May v. School District [Neb.], 34 N.W. 377; Bannock County v. Bell [Idaho], 65 P. 710; Kennebunck Port v. Smith, 22 Maine 445; Evans v. Erie County, 66 Pa. St. 222; Johnson v. Black, 103 Va. 477; Metropolitan R. R. v. Dist. of Columbia, 132 U.S. 11-12; Boone v. Burlington R. R., 139 U.S. 693. See also 19 Am. & Eng. Ency. of Law [2d Ed.], p. 191; Ogden City v. Bear Lake R. W. W. & I. Co., 16 Utah 453; Ogden City v. Water Works Co., 28 Utah 42.) The statute of limitation applies to actions brought by or for the State in the same manner as to actions by private persons (Compiled Laws of Utah, secs. 2856-2884.) No distinction is found in most of the decisions, under such a statute, between the actions brought in the State's sovereign capacity and those brought in its private capacity; but all are alike held to be within its terms. (Schneider v. Hutchinson [Ore.], 57 P. 324; Directors v. George, 50 Mo. 194; Green v. Irving, 54 Miss. 450; People v. Rector Trinity Church, 22 N.Y. 44; Wyatt v. Tisdale, 97 Ala. 594, 12 So. 233; Price v. Jackson, 91 N.C. 14; Atty. Gen. v. Cooper Co., 152 Mass. 447, N.E. 605.)

As the exemption of the municipal corporation is based upon the exemption of the sovereign, it would seem that the waiver by the State extends to its creature. But there is a line of authority, as in California, holding that such statutes have no application concerning property held by the State without power of alienation--that is to say, for public purposes only. (Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437.)

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

This is an action upon a covenant of warranty. The appellant is a public corporation, and as such held, occupied, used, and sold the premises hereinafter referred to. The evidence tended to establish that the premises in question for many years had been used for public school purposes, but that for ten or fifteen years immediately preceding the transactions involved in this case they had been abandoned for such purpose for the reason that they were more suitable for other purposes, and were held for sale by appellant, and were finally sold by it, as will more fully appear hereafter. The additional facts necessary to a full understanding of the points raised by appellant are fairly reflected in the findings of the court, as follows: That on the 1st day of July, 1905, the appellant, for a valuable consideration, sold, and by warranty deed conveyed to one Fred A. Rosenfeld, certain particularly described real estate in Salt Lake City; that said deed was in statutory form, and in which the grantor covenanted that it was lawfully seized; that it had good right and authority to convey; that the premises were free from incumbrances, and it warranted the title as against claims generally; that thereafter on the 3d day of July, 1905, the said Rosenfeld, by warranty deed, duly conveyed the premises in question to the respondent; that at the time the premises were conveyed by appellant to Rosenfeld there was situated on the westerly end thereof a portion of a two-story brick building, covering a space of ten and one-half by sixteen feet, which building was claimed and occupied by a certain corporation; that the premises had been used, held, and occupied by said corporation "continuously, openly, notoriously, peaceably, and adversely against all the world, under claim of right for more than twenty years next preceding the 1st day of July, 1905, for educational and charitable purposes;" that said building had been erected more than twenty years prior to the 1st day of July, 1905, and had stood upon the place mentioned above during all of said time; that during all of said time no taxes had been assessed or levied for any purpose against said building or ground upon which said building was standing; that on the 12th day of February, 1906, the respondent negotiated a sale of the premises conveyed by appellant to Rosenfeld, and by him conveyed to respondent, to one Doyle, but that said Doyle refused to complete his purchase of and to accept the property aforesaid, without the relinquishment of the right of the corporation aforesaid to the portion of the premises upon which said building stood, and of which said corporation was in possession and occupation, as aforesaid; that said corporation claimed title and right to said premises by prescription; that the respondent, in order to make and complete the sale of said premises to Doyle, and to clear the same from the claim of said corporation, was compelled to pay and did pay to said corporation the sum of $ 150, for the relinquishment of its right and claim in and to said premises, after which payment said corporation relinquished its right to the same to Doyle; that said sum of $ 150, so paid as aforesaid, was reasonable; that in negotiating and in procuring the relinquishment aforesaid from said corporation, respondent was necessarily required to employ an attorney, and the services rendered by him were of the reasonable value of $ 75; that respondent duly notified the appellant of the claim of said corporation to the portion of the premises aforesaid, and demanded from appellant that it comply with its covenants of warranty, which appellant refused to do; that the respondent before the bringing of this action demanded of appellant the said sums of $ 150 and $ 75 paid by respondent as aforesaid. Upon the foregoing facts the court based its conclusions of law that respondent was entitled to judgment for the sum of $ 225, and entered judgment accordingly, from which this appeal is prosecuted.

Counsel for appellant have limited their argument to two questions (1) That the finding of adverse possession is not supported by the evidence; and (2) that, although it be held that the finding is so supported, the doctrine of acquiring title by adverse possession or by prescription is not applicable to the facts in this case. It is therefore asserted that the appellant is not liable to respondent as for a breach of the covenants of warranty. As to the first proposition, it is asserted that the evidence discloses that the officers of the corporation which was in possession of the portion of the ground did not claim any right or title to the premises on behalf of such corporation, that the possession was a mere passive one, and that such a...