Toltec Ranch Co. v. Babcock

• Decision Date: 13 December 1901
• Docket Number: 1327
• Citation: 66 P. 876,24 Utah 183
• Court: Utah Supreme Court
• Parties: TOLTEC RANCH COMPANY, a Corporation, Appellant, v. WILLIAM BABCOCK and LOUISA BABCOCK, Intervener, Respondents

66 P. 876

24 Utah 183

TOLTEC RANCH COMPANY, a Corporation, Appellant, v. WILLIAM BABCOCK and LOUISA BABCOCK, Intervener, Respondents

No. 1327

Supreme Court of Utah

December 13, 1901

Appeal from the First District Court, Box Elder County.--Hon. C. H Hart, Judge.

Plaintiff brought two actions against the defendant and intervener--the one in ejectment to recover the possession of 64 acres of land, and the other in replevin to recover for hay grown upon the land in controversy. At the trial the actions were consolidated. From a judgment in favor of the defendant and intervener the plaintiff appealed.

AFFIRMED.

Messrs Chase & Chase and T. D. Johnson, Esq., for appellant.

The trial court held that an affidavit of impecuniosity relieves a party from the necessity of complying with requirements of the provisions of the Constitution and statutes.

Sections 1016, 1017 and 1018 of the Revised Statutes contain all the statute law on the subject, except the provision as to stenographer's fees in criminal cases, found in chapter 72, section 7 of the Session Laws of 1899.

There is not the remotest hint in the above sections that a party by filing a poverty affidavit, is entitled to the luxury of a jury at the expense of the county if he loses, or, if he wins, to mulct his opponent with this additional cost. We cite as authority for our position, Hoagland v. Hoagland, 18 Utah 304.

It is well settled law in this State, that to make out the defense of adverse possession, the possession must be shown to be exclusive and continuous for the statutory period, and a compliance with the requirements of the statute respecting fencing and other improvements, and the payment of taxes; in addition it must be shown that the possession has been open, hostile, adverse, notorious, under a claim of right, and the defense must be made out by clear proof. Newham v. Salt Lake City, 7 Utah 319; Smith v. North Canyon Water Co., 16 Utah 194; Larson v. Onesite, 21 Utah 38; Center Creek Irrigation Co. v. Lindsay, 21 Utah 192.

It is well-settled law that a wife can not hold adversely to her husband while they are living together, and the fact that she was the plural wife and not the legal wife of Chester Loveland, certainly can not be taken advantage of by her. Warr v. Honeck, 8 Utah 61; Maudlin v. Cox, 67 Cal. 392.

Patent issued September 5, 1896; this action was commenced August 14, 1899; we maintain that the statute of limitations could only begin to run from the issuance of patent, and, therefore, the defense of adverse possession must fail. Steele v. Boley, 7 Utah 64; Redfield v. Parks, 132 U.S. 239.

The above question is the most serious and far reaching one presented by the record in this case. The exact question raised in the record is one as yet undecided by the Supreme Court of the United States, or by this court, but the cases cited are more nearly on all fours with this case than any other decisions made, and are in harmony with our contention, and authority for it. The trial court held against our view, because under the authority of Tarpey v. Deseret Salt Co., 142 U.S. 241, the legal title, under the grant of Congress, vested in the railroad company upon its filing of the map of definite location, and therefore the statute of limitations would, ex proprio vigore, run against it prior to the issuance of patent.

Our contention is that it does not follow because the railroad company may have the legal title by virtue of the grant, that the statute of limitations runs, or that title may be acquired by adverse possession, prior to the issuance of patent. The earlier cases of the Supreme Court of the United States clearly incline to our view. Kansas P. R. R. Co. v. Prescott, 83 U.S. 603.

B. H. Jones, Esq., for respondent; Messrs. Brown & Henderson of counsel.

Where a person is in possession of land for seven years, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to be adverse. 1 Am. and Eng. Ency. of Law (2 Ed.), 890.

A person in possession in subordination to the title of the United States may hold adversely to another claimant. Francoeur v. Newhouse, 14 Saw. (U.S.) 600; Hayes v. Martin, 45 Cal. 559; 1 Am. and Eng. Ency. of Law (2 Ed.), 876, note.

Possession, if not taken and held by contract or purchase, is, from its inception, adverse to all the world, and in seven years bars the owner in law and equity. Boone v. Ghiles, 10 Peters 177; Broman v. Wathan, 1 How. 189.

A claim of title may be sufficient, although made with knowledge of a better one. Alexander v. Pendleton, 8 Cranch 462; Ewring v. Burnet, 11 Pet. 41; See Whitney v. Wright, 15 Wend. 180.

Counsel states that the most serious and far-reaching question in the record is, Will the statute of limitations run before the issuance of the patent? This is no longer an open question. The following cases hold that the title to the lands granted took effect as of the date of the grant. Salt Company v. Tarpey, 142 U.S. 241; Tarpey v. Madsen, 178 U.S. 215.

BARTCH, J., delivered the opinion of the court. MINER, C. J., and BASKIN, J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

The record shows that the plaintiff instituted two suits against the defendants and intervener--the one an action in ejectment to recover the possession of 64 acres of land, and the other in replevin for hay and lucerne seed grown upon the land in controversy. At the trial the actions were both consolidated and tried together before a jury. The court held that the parties were entitled to a jury trial without the payment of a jury fee, as provided by statute, by reason of an affidavit of impecuniosity having been filed by the defendant, who demanded the jury. The complaint in ejectment was filed August 14, 1899, and alleged possession and ouster November 4, 1897, and unlawful retention of possession on the part of the defendant. The defendant, in his answer, denies generally the allegations of the complaint; then, inter alia alleges that he holds the property in dispute as agent for his wife, the intervener; that he and his wife have been in the actual and peaceable possession of the lands and have occupied and cultivated the same for more than thirty-two years last past; and set up the statute of limitations in bar of the action. The intervener filed a similar answer and cross complaint, which also contained an allegation to the effect that the lands in controversy were excepted from the grant of lands by the United States to the Central Pacific Railroad Company. In its reply to the defendant's answer the plaintiff admitted "that said Louisa Babcock and her predecessors in interest have held and occupied the premises mentioned exclusively for more than thirty years since the entry upon the same in 1867." From the evidence it appears that the land in controversy was embraced within the grant of Congress to the Central Pacific Railroad Company; that on September 5, 1896, the railroad company received a patent for it, and on May 4, 1897, conveyed the same to the plaintiff; that the intervener, Louisa Babcock, was the plural wife of Chester Loveland; that the latter obtained possession of the said land in 1875 or 1876, and moved his plural wife, the intervener, onto the place the same year, and afterwards gave it to her; that she lived there right along until his death, in 1886, and continued to live there ever since, and to improve and cultivate the land, and to raise and gather crops thereon for the support of herself and children; that the disputed land has been occupied, fenced, improved, and cultivated from about the year 1867; that the intervener has occupied and so cultivated the land for more than twenty-five years, and raised her family thereon; that Chester Loveland lived in Brigham City, while she was his plural wife, and lived on the land; that since 1889, when she married the defendant, she and her husband have both had their home on the premises, and tilled the land; that she always claimed it as her home and used it as her own, and that in the neighborhood it was known as the "Loveland Place." As to the payment of taxes, the intervener testified: "I began to pay taxes on this land at the death of my first husband, Mr. Loveland. It was whenever I was assessed I paid the taxes." As to who claimed and used the land, the witness Mary A. Dewey testified: "A number of people, one after another, occupied these lands from about 1864 until one Lish got it. He remained there until he sold to Mr. Loveland. I do not know just what year that was. I have known Mrs. Louisa Babcock about thirty-two years. She was the plural wife of Chester Loveland. She moved upon the land in dispute about twenty-five years ago, and has lived there ever since. She used it for a home, for farming, and cut hay to support her family. Mrs. Babcock has a family of six or seven children, who have lived with her on the land. She married Mr. Babcock ten or eleven years ago. He has been living there since that time. There is no difference at all between the way people who have occupied this land have used it and the way any other farmers used theirs." The witness Fryer said: "There were improvements on this land in '76. There was a leg cabin, a pole corral, and a cellar. Some of it was fenced in. In '69 this land was inclosed in the big field. The land in dispute for the past twenty-five years has been designated in the neighborhood as the Loveland Place.'" The witness Gardner testified: "Have been acquainted with Louisa Babcock since she moved out there--between twenty and twenty-five years. She tended to the land the same as the rest of us have, or had it done by her children, every year since Uncle Chester died. Before that he attended to it. During all the time...