Schettler v. Lynch

• Decision Date: 25 March 1901
• Court: Utah Supreme Court
• Parties: B. H. SCHETTLER et al., Respondents, v. E. P. LYNCH and P. H. RILEY, Appellants

64 P. 955

23 Utah 305

B. H. SCHETTLER et al., Respondents, v. E. P. LYNCH and P. H. RILEY, Appellants

Supreme Court of Utah

March 25, 1901

Appeal from the Third District Court, Salt Lake County.-- Hon. Ogden Hiles, Judge.

Action to enjoin defendants from erecting a fence or other obstruction on a certain street in Salt Lake City. From a judgment for plaintiffs defendants appealed.

AFFIRMED.

Messrs Bennett, Howat, Sutherland & Van Cott for appellants.

It was not competent to prove any alleged statements of Nicholas Groesbeck when he was dead, and the witnesses were interested. The statute is absolutely clear on this question.

In the Revised Statutes of Utah, 1898, sec. 3413, it is provided:

"The following persons can not be witnesses:

"1. Those who are of unsound mind. * * *

"2. Children under ten years of age. * * * *

"3. A party to any civil action. * * * * and any person directly interested in the event thereof, and any person from through, or under whom such party or interested person derives his interest or title or any part thereof, when the adverse party in such action * * * defends * * * * as * * * * grantee, directly or remotely * * * * as to any statement by or transaction with, such deceased * * * * person, or matter or fact whatever, which must have been equally within the knowledge of both the witness and such * * * * deceased person." Ewing v. White, 8 Utah 250; Wood v. Fox, 8 Utah 380; Whitney v. Fox, 166 U.S. 637.

The rule is that when a constitutional statute is unambiguous, it is not open to construction or interpretation, but must be enforced; the court only resorts to construction and interpretation when a statute is ambiguous; when it is unambiguous and its constitutionality is once established, then the court has no duty to perform except to enforce the statute according to its terms. Springville v. Johnson, 10 Utah 356.

The law on the subject of dedication. 9 Ency. Law (2 Ed.), page 2133; Pierpont v. Harrisville, 9 W.Va. 220; Spurrier v. Bland, 49 S.W. 467; City, etc., v. Grote, 52 P. 128.

See, in addition to the above cases, that there must be an acceptance in order to make a dedication complete: Washburn, Easements and Servitudes (4 Ed.), 246-7, top paging; Elliott, Roads and Streets, p. 113, et seq.; Tupper v. Huson, 46 Wis. 646; Trerice v. Barteau, 54 Wis. 99; Shellhouse v. State, 11 N.E. 484.

As there is no evidence in the record showing that the general public in any way accepted the same, it is conclusive that there was no acceptance. If the general public accepted the alleged dedication, then the public would be liable for any injuries that might occur. Elliott on Roads and Streets, p. 113; 9 Ency. Law (2 Ed.), page 24; Gowen v. Philadelphia, etc., 40 A. D. 489; Pierpont v. Harrisville, 9 W.Va. 215; Tupper v. Huson, 46 Wis. 646; Trerice v. Barteau, 54 Wis. 99.

If it is contended that a right of way is shown by prescription, then it is well settled in this State that such right of way must be used uninterruptedly for twenty years. See Harkness v. Woodmansee, 7 Utah 227; Shellhouse v. State, 11 N.E. 485.

The respondents have no right of way over the twelve feet in question by prescription. Harkness v. Woodmansee, 7 Utah 232.

Messrs. Zane & Rogers and W. D. Riter, Esq., for respondents.

The phrase "dedicated to the use of the public," is defined in the following section of the statute in force when the twelve feet of ground in front of defendants lots was dedicated, as we insist, to the public to be used as a street:

"All roads, streets, alleys and bridges laid out or erected by others than the public, and dedicated or abandoned to the use of the public, are highways. A highway shall be deemed and taken as dedicated and abandoned to the use of the public when it has been continuously and uninterruptedly used as a public thoroughfare for a period of ten years." 1 Compiled Laws of Utah, 1888, sec. 2066.

The following section of the Revised Statutes of 1898 also define the phrase "dedicated and abandoned to the use of the public." Rev. Stat. of Utah, 1898, sec. 1114; Rev. Stat. of Utah, 1898, sec. 1115.

The portions of a street or highway not used so much as other portions, are nevertheless a part thereof. Burrows v. Guest, 5 Utah, 91.

A man may dedicate his land to the public to be used as a street with or without writing, by fencing it out to be used as such, or by acquiescence in such use, or his intention to dedicate may be inferred from his acquiescence in its continued use as a road, or street, or an alley. Wilson v. Hull, 7 Utah 90; 9 Am. and Eng. Ency. of Law (2 Ed.), p. 34; Morgan v. Railroad Co., 96 U.S. 716-723; City of Cincinnati v. White's Lessee, 6 Peters 440; 2 Greenleaf on Evidence, sec. 662; Roads and Streets (Elliott), pp. 91, 92, 98 and 99; Jones on Easements, sec. 424.

The plaintiffs also insist that the twelve feet was accepted as a part of Church street. The city authorities have never objected to the dedication, and the street has been open to the public as a public street for more than twenty years, and the proof is that the one rod and a half is too narrow for wagons to turn in; therefore, the use of the twelve feet is beneficial to the public. It would be impossible to assume that the public authorities would accept the twenty-four feet and nine inches, and reject the twelve additional feet necessary to make the street wide enough for convenient use. The use of the twelve feet is beneficial to the public, hence, its acceptance will be implied. Elliott on Roads and Streets, pp. 115 and 116; Wilson v. Hull, 7 Utah 93-94.

"Acceptance may be implied from user by the public for the purposes for which dedicated." 9 Am. and Eng. Ency. of Law (2 Ed.), p. 43.

In Clawson v. Wallace, 16 Utah 300, notwithstanding the error of the court below in admitting certain testimony, the court held the findings and decree were sustained by a preponderance of the testimony, and affirmed the judgment. This has been the uniform holding of this court. Whittaker v. Ferguson, 16 Utah 240; Mining Co. v. Jennings, 14 Utah 221; North Point Irr. Co. v. Canal Cos., 16 Utah 246; Mining Co. v. Haws, 7 Utah 515; Salt Lake Foundry and Machine Co. v. Mamoth Min. Co., 6 Utah 351, 151 U.S. 447.

BARTCH, J., delivered the opinion of the court. Baskin, J., and Hart, D. J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

This action was brought to enjoin the defendants from erecting any fence or obstruction on a certain street in Salt Lake City, called Church street, or any part thereof, or maintaining a fence or obstruction thereon.

From a map or plat admitted in evidence, it appears that the street in question is thirty-six and three-fourths feet wide and extends three hundred and thirty feet south from Fourth South street, and that one and a half rods of its width is on the west side of a line extending north and south through the center of block 39, plat "A," Salt Lake City survey. The remaining twelve feet of its width, as shown by the plat, is on the east side of that line. It further appears from the evidence that formerly Nicholas Groesbeck owned lot 6, block 39, and Joseph O. Young owned the land south of lot 6, embraced in the twelve foot strip, and that adjoining on the east. Through mesne conveyances defendant Riley is now the owner of the west end of that lot and claims the disputed twelve feet along his land, and likewise defendant Lynch, who now owns the parcel of land lying immediately south of defendant Riley's lot, claims so much of the twelve-foot strip in dispute as lies along his land. About eighteen years ago, Groesbeck, then owning the land now owned by the defendants, including the twelve-foot strip in controversy, built a board fence leaving that strip in the street, and Young at the same time constructed a fence on the same line along his land, also leaving a strip of the same width in the street. It appears Groesbeck's fence stood there for a number of years, and some of the posts are still standing on defendants' land. Young's fence is likewise still standing. Some of the witnesses testified, in substance, that the street had been used by the public for traffic and for teams from eighteen to twenty or more years, but the twelve feet in dispute were not used as much as the other portion of the street, owing to an irrigating ditch constructed on the center line of the block which was the west line of the twelvefoot strip, and owing to the obstruction placed on the strip by the defendants. It is also shown in evidence that about eighteen years ago, which was about two years before Groesbeck's death, a sign, with the name "Church Street" on it, was put upon the fence and afterwards upon an old house, which stood on Groesbeck's land and extended about a foot and a half over the east line of the disputed strip of land. The sign remained there, as appears, for eight or ten years. About twenty houses, with people living in them are fronting the street. There is also evidence showing that the twelve-foot strip is necessary for the convenience and accommodation of the public, and then there is some evidence tending to show that it was used very little by the public except for tying teams and turning them around. It appears that the irrigation ditch interfered with the travel thereon, and that in consequence the beaten track is on the western side of the street and not on the twelve-foot strip. The deeds of the defendants show clear titles to their premises, including the land in question. Prior to the commencement of this suit defendant Lynch inclosed the twelve feet with a fence so far as his land extended.

At the trial the court entered a decree in favor of the plaintiffs and the defendants appealed.

The case having been stated as above,...