Reimann v. Baum

• Decision Date: 04 March 1949
• Docket Number: 7135
• Citation: 203 P.2d 387,115 Utah 147
• Court: Utah Supreme Court
• Parties: REIMANN et ux. v. BAUM et ux

203 P.2d 387

115 Utah 147

REIMANN et ux. v. BAUM et ux

No. 7135

Supreme Court of Utah

March 4, 1949

Appeal from District Court, Fourth District, Duchesne County Joseph E. Nelson, Judge.

Action by Paul E. Reimann and Maybeth Farr Reimann, his wife against Clarence Baum and Marie Baum, his wife, to quiet title to three parcels of realty and to recover damages. Prom the judgment insofar as it required plaintiffs to repay defendant for taxes paid on the parcels of land plus the reasonable value of alleged permanent improvements made by the defendants, the plaintiffs appeal.

Judgment modified and, as modified, affirmed, and cause remanded with instructions.

Paul E. Reimann and Gordon Burt Affleck, both of Salt Lake City, for appellants.

Rulon J. Larsen, of Duchesne, and Dean E Terry, of Provo, for respondents.

Hogenson, District Judge. Pratt, C.J., and Wade, Wolfe, and Latimer, JJ., concur. McDonough, J., having disqualified himself, did not participate herein.

OPINION

Hogenson, District Judge.

Plaintiffs brought this action in the court below to quiet title to three parcels of land located in Duchesne County, Utah. The judgment of the trial court was that the plaintiffs were record owners and entitled to a decree quieting title in them and were also entitled to recover $ 840.60 damages for the use of their lands. The judgment further provided that plaintiffs must repay to defendant Baum $ 652 for taxes he had paid on these lands plus the sum of $ 975 found by the court to be the reasonable value of permanent improvements made by defendant upon the lands. As a further condition the judgment provided that before the court would enter a formal decree plaintiffs must deposit with the clerk of the court the sum of $ 786.82 with interest from a given date. This sum was the balance due the defendant when the amounts awarded each of the parties were reconciled. Costs were denied both parties. Plaintiffs appeal from the judgment only insofar as it is adverse to them.

The judgment is at rest as to the defendant wife, and the term "defendant" in this opinion refers to Clarence Baum.

The three tracts of land are described:

Tract No. 1: N 1/2, Sec. 24, T. 5 S., R. 8 W., Uintah Special Meridian.

Tract No. 2: N 1/2, Sec. 20, T. 5 S., R. 7 W., Uintah Special Meridian.

Tract No. 3: SW 1/ 4 Sec. 31, and NW 1/4 of SE 1/4, Sec. 31, T. 5 S., R. 7 W., Uintah Special Meridian.

They are located with respect to each other as follows:

[SEE ILLUSTRATION IN ORIGINAL]

The plaintiffs assign as error the finding of the trial court that the defendant after entering into possession "erected permanent improvements upon said lands consisting of laying a pipeline and building water troughs, cribbing work at springs, and the erection of drift fences and other fences, of the aggregate value of $ 975.00" and the consequent judgment for said amount.

The action of an occupying claimant to recover the value of permanent improvements placed by him while in possession under color of title and in good faith upon the land of another sounds in equity. Searl v. School District, 133 U.S. 553, 10 S.Ct. 374, 33 L.Ed. 740. In equity proceedings in this jurisdiction, this court reviews both law and facts. Tanner v. Provo Reservoir Co., 99 Utah 139, 98 P. 2d 695. We review the record and pass on the weight and the sufficiency of the evidence. Christenson v. Nielsen, 88 Utah 336, 54 P. 2d 430, 432. We determine where lies the preponderance of the evidence but in doing so, we consider the better opportunity afforded the trial court to observe the demeanor of witnesses, to determine their credibility and the weight to be given to their testimony, and to observe any unrecordable material facts inherent in the trial of the case as disclosed by the record, such as, for example, a proper view of the premises by the trial judge. Corey v. Roberts, 82 Utah 445, 25 P. 2d 940, 942. See concurring opinion of Mr. Justice Wolfe, Stanley v. Stanley , 97 Utah 520, 527, 94 P. 2d 465, and Utah cases therein collected.

Tracts No. 1 and 2 lie a mile apart and Tract No. 3 is two miles distant from the others. The general area is mountainous grazing land traversed by canyons descending generally northerly and northeasterly ten to twelve miles to the Strawberry River. Defendant grazed the three tracts and also the surrounding lands, and particularly Section 19 and the S 1/ 2 Sec. 24. The west fork of Sam's Canyon runs up-grade southwesterly through Section 19 and the S 1/2 of Section 24 and touches Tract No. 1 at its southeast corner, the quarter section corner between the two sections. The defendant used this canyon as one route to bring livestock from the Strawberry River to this general area.

As to claimed improvements on Tract No. 1, the defendant testified that in 1938 he built a 120 foot surface pipeline from a spring to water troughs and that the reasonable cost of labor and materials was $ 700. He stated squarely on direct examination that they were built on the SE 1/4 of Section 24, (which is not part of the tract No. 1 here involved). On cross-examination, he said he couldn't swear whether the spring involved was located on Section 19 or Section 24, and the evidence is that the pipeline to the troughs runs in a southeasterly direction. If the spring were located on Section 19, the pipeline and troughs would be farther into the same section and away from Tract No. 1; if the spring were in SE 1/4, Sec. 24, they would likewise extend farther away. The testimony is that they were built in the west fork of Sam's Canyon, and the record is clear that said fork does not traverse Tract No. 1, but at best touches the southeast corner thereof, and that the ascent from the bottom of the canyon onto the tract is steep and precipitous. Defendant said it was a steep climb to the spring, but on recross-examination flatly stated that the improvements were located in a draw on the east side of the canyon and not in a draw on the west side thereof. The east side of the canyon is clearly beyond the limits of the tract.

The evidence is not sufficient to support a finding that the claimed improvements were built on Tract No. 1.

As to Tract No. 2, the defendant testified that he constructed in 1939 at a reasonable cost in labor of $ 100 a crib in "Section 20," but nowhere in the record is it disclosed where on Section 20 this watering crib was placed or that it was even generally located on the N 1/2 of Section 20 (Tract No. 2). Later on recross-examination when pressed to locate the spring which purportedly fed the crib, defendant stated there wasn't a crib on Section 20 and "never was."

The evidence is not sufficient upon which to base a finding that the defendant erected any crib improvement on Tract No. 2.

As to Tract No. 3, defendant testified that in 1939 he expended $ 204, the reasonable cost of labor and materials, to build a half mile fence "which joins on that part of Section 31 and runs up across the ridge on the forest reserve line." There is no word of testimony as to the location of the forest reserve line, but Exhibit H, admitted in evidence, shows the forest line to coincide with the south boundary line of the tract (the south section line) and extends easterly and westerly for miles. The fence was built "to keep anything from drifting on or off the reserve." The defendant stated "part" of this fence was on the tract and part extended to the west thereof along the forest line. There is no evidence to show what "part" was built on the tract nor whether the ridge over which it was built was on or off the tract. Of the $ 204 expended, $ 100 was for labor, $ 56 for wire, and $ 48 for cedar posts at 30[cents] each, but defendant admitted on cross-examination that he cut the posts from cedar trees in the vicinity.

With respect to all tracts, defendant testified that these improvements were "worthless to date" and that the improvements "wouldn't help" until each tract had been "fenced down and finished around each tract of land" because one had to trespass the surrounding lends to use the tracts here involved. It is plain from all the evidence, and particularly from the statement of the defendant, that the improvements were built for the use of the general area and that they were located without particular regard to the boundry lines of the three separate tracts here involved. There is no direct evidence that any of the claimed improvements existed at the time of the trial, not even any evidence as to their condition several years after construction, nor any evidence as to how much they increased the value of the lands, nor any evidence as to the relative values of the lands with and without improvements, other than the reasonable costs at time of construction.

There is not sufficient evidence upon which to base any finding as to the value of the "part" of the said improvement located upon Tract No. 3.

Also with respect to Tract No. 3, defendant testified he built in 1939 on "Section 31" in the bottom of Lake Canyon at a reasonable cost in labor of $ 100 a three-cornered crib, built of logs, covered with timber. Lake Canyon traverses Section 31 upgrade southwesterly and diagonally from the N. E. corner and leaves the section through the west section line near the S.W. corner and, of course, traverses Tract No. 3, and extends above and below the section. The record fails to show any evidence locating this crib on the tract involved.

The evidence is not sufficient upon which to base a finding that said crib was located on Tract No. 3.

Also with respect to Tract No. 3, defendant testified that he built in July or August, 1943 (three years after this suit commenced) a fence, at a reasonable cost in labor and materials of $ 75, in the bottom of...