Rydalch v. Anderson
| Decision Date | 06 January 1910 |
| Docket Number | 2054 |
| Citation | 37 Utah 99,107 P. 25 |
| Court | Utah Supreme Court |
| Parties | RYDALCH v. ANDERSON |
APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.
Action by John Rydalch against C. Le Roy Anderson, administrator of the estate of Charles L. Anderson, deceased.
Judgment for defendant. Plaintiff appeals.
AFFIRMED AS MODIFIED.
Hurd & Hurd for appellant.
Evans & Evans for respondent.
This is an action to determine an adverse claim to 38.86 acres of land, of which appellant claimed to be the owner in fee, and in which he alleged one Charles L. Anderson claimed some interest. After the case had terminated in the district court, and about the time the appeal was filed in this court, said Anderson died, and C. Le Roy Anderson was substituted for the deceased. We make this explanation at this time for the reason that, notwithstanding the death of the original party defendant as aforesaid, we shall hereafter in this opinion refer to the deceased as respondent.
Respondent, in his answer, denied that appellant was the owner of the entire 38.86 acres, and, by way of counterclaim, set up title to a triangular parcel of land included within said 38.86 acres in himself. Respondent claimed title to said parcel by adverse possession, and also by reason of the establishment of a boundary line between appellant's and respondent's land, which had been established and acquiesced in for a period of forty years by the predecessors in interest of the lands now owned by appellant and respondent, and particularly the land in controversy.
The following diagram will show the precise location of the parcel of land in controversy, and will also show the alleged boundary line, and will thus help to illustrate the questions to be decided.
[SEE DIAGRAM IN ORIGINAL ]
The line marked A, B is the section line between sections 23 and 26, township 2 S., range 6 W., of the Salt Lake Meridian, Tooele County, Utah. The evidence does not show the precise time, but some time prior to 1865, the predecessor in interest of respondent, a Mr. Kimball, located upon and took possession of the lands shown in the diagram as being in section 23, and one William C. Rydalch, the father of appellant, and under whom he claims as an heir, located on and took possession of the lands shown in the diagram as being in section 26. From the evidence it is made to appear that when the lands were located as aforesaid by Mr. Kimball and Mr. Rydalch, no government survey thereof had been made, and hence had not been subdivided into sections and parts of sections. By reason of this fact Mr. Kimball and Mr. William C. Rydalch established a boundary line between the lands located and claimed by each of them. This line was established by what a witness designates as a "rope survey." By this so-called survey a line was established, which appears on the diagram as a broken or dotted line, indicated by the letters "c," "d," "e." In 1865 or 1866 a fence was erected on the line aforesaid, which, the evidence shows, at one time may have extended easterly beyond the point "e," and also may have extended westerly beyond the point "c." The court found, and we think the finding is supported by some evidence, that William C. Rydalch maintained the easterly, while Mr. Kimball maintained the westerly, portion of the fence while they lived. Mr. William C. Rydalch died in 1900 or 1901. One of his sons, who lived on or near the land for fifty years, when asked about the fence, testified, "My father had it built." This son also testified that his father, for thirty or forty years, had always maintained a fence along the boundary line in question, and that Mr. Kimball had always claimed, used, and occupied the land to the north of the fence, and that Mr. William C. Rydalch always used, claimed, and occupied the land south thereof. Another witness testified that he knew of the fence for many years; that in 1894 Mr. William C. Rydalch, the father of appellant, employed the witness to plant some poplar trees along the line of the fence; that Mr. Rydalch, at the time, told the witness that he (Rydalch) wanted a row of trees planted on the line between Mr. Kimball's and Mr. William C. Rydalch's lands; that he told the witness to plant the trees along the line of the fence, and that the witness planted them as directed; that some of the trees were standing and growing at the time of the trial, while others, and especially those planted on the higher or dry part of the land had died. This witness also testified that the fence was a post and pole fence, and was maintained as aforesaid.
The land in controversy is the triangular parcel marked P, bounded by the lines marked "g, h," "h, d," and "d, g," as shown on the diagram, and contains 4.68 acres. The record title to the land in section 26 shown on the diagram, at the time of the death of William C. Rydalch, the father of appellant, was in said Rydalch, as appears from a United States patent issued to him April 25, 1871, by which there was conveyed to him the N.E. quarter of section 26, township 2, S., range 6 W., S. L. M., in Tooele County, Utah. It was also conceded at the trial that a patent had been duly issued whereby the E. half of the N.W. quarter of section 26, township and range aforesaid, was duly conveyed to said William C. Rydalch. The evidence does not disclose the date of the later patent, but the court found that it was issued February 2, 1888, and recorded on September 2, 1889. The record title of appellant to all of the land in section 26, including the triangular parcel marked "P" on the diagram is not questioned; and, unless the respondent has acquired, title by adverse possession, or unless the title is in him by reason of the fact that that portion north of the fence was, by the respective owners of the land on the north and south thereof, for all practical purposes, determined to be a part of section 23, the appellant should succeed in this action.
In this connection respondent testified that he purchased the land north of the fence in 1898 from the Kimballs; that when he purchased the land the fence was intact, and that he was told by some of the Kimball heirs that all of the land north of the fence was owned by the Kimballs; that he himself had been familiar with the land and fence for forty years or more, and had always assumed that the land north of the fence was owned by the Kimballs, and the land south thereof by Mr. William C. Rydalch; that respondent purchased the land believing that the triangular strip in question belonged to the Kimballs, and that it was included in the lands he purchased in section 23; that at the time he purchased he took possession of the lands, and used them and remained in actual possession thereof up to the time of trial, except for a short time in May, 1905, when appellant, during respondent's absence from the state, broke down a portion of the fence and entered upon the triangular parcel in dispute; that he paid all the taxes assessed against the land he purchased but that he was never assessed on any land in section 26, but said that he thought that the assessor assessed the land north of the fence as belonging to respondent.
The findings of the court are very full and explicit. Among others, the court, in substance, found as follows: That for forty years before the commencement of this action the parcel of land marked P on the diagram was within the inclosure of respondent and his predecessors in interest, and was separated from the lands of appellant by the fence shown on the diagram; that during all of the time aforesaid respondent and his predecessors in interest have used said parcel of land in connection with the other lands owned by the Kimballs and by them conveyed to respondent; that said use was open, continuous, and without any interference from any one and the use of said parcel as aforesaid was acquiesced in by all until questioned by appellant in 1905; that the fence in question remained in practically the same place since it was established in 1865, and from said time forward was always kept in repair; that respondent and his predecessors in interest were in possession of said parcel of land under a claim of right, claiming title thereto during all of the time aforesaid against all the world except the United States. The court also found that in 1898, when respondent purchased the land from the Kimballs, the section corners and lines of sections 23 and 26 were well established, and were easily ascertainable. We remark here that the fact appears to be, as hereinbefore stated, that in 1865 sections 23 and 26 had not been surveyed, but in view that the first patent was issued to Mr. William C. Rydalch in 1871, it would seem that the lands must have been surveyed some time prior to that time. We remark, further, that while the second patent was not issued to William C. Rydalch for a part of the land in controversy until 1888, there is absolutely nothing to show at what time prior to the issuance of said patent he may have complied with the laws of the United States which would entitle him to a patent. Upon the findings the court entered judgment quieting the title to the parcel of land in question in respondent, and appellant presents the record for review on appeal.
The principal assignments of error relate to the findings of fact and conclusions of law as found by the court and the overruling of appellant's motion for a new trial. Appellant's contention that the findings of fact are not supported by the evidence is, in our judgment not tenable. The evidence is all one way, and we cannot see how the court could well have found the facts otherwise than he did. The only question, as we view...
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