Tripp v. Bagley

• Decision Date: 11 December 1928
• Docket Number: 4681
• Court: Utah Supreme Court
• Parties: TRIPP v. BAGLEY et al

276 P. 912

74 Utah 57

TRIPP v. BAGLEY et al

No. 4681

Supreme Court of Utah

December 11, 1928

Rehearing Denied April 13, 1929.

Appeal from District Court, Third District, Salt Lake County; Wm. S Marks, Judge.

Suit by George W. Tripp against E. C. Bagley and others. From the judgment, plaintiff appeals, and defendants cross-appeal.

AFFIRMED IN PART, and in part reversed, with directions.

William B. Higgins, of Fillmore, for appellant.

Barnard J. Stewart and King & King, all of Salt Lake City, for respondents.

HANSEN J. THURMAN, C. J., and CHERRY, STRAUP, and GIDEON, JJ., concur.

OPINION

HANSEN, J.

Plaintiff brought this suit against defendants to quiet title to several tracts of land situated in Secs. 1 and 11, Tp. 11 S., R. 17 W., S. L. M. The land is at Callao, Juab county, Utah. The defendants answered and filed a cross-complaint against the plaintiff. In the cross-complaint defendants claim title to about 6.44 acres of the land claimed by plaintiff. The plaintiff's claim to the 6.44 acres of land in dispute is founded upon his record title thereto. The defendants base their claim to the 6.44 acres of land in dispute upon their alleged possession thereof under claim of right for more than 40 years.

The plaintiff and defendants own coterminous tracts of land. The disputed tract of land is on defendants' side of what defendants claim is a fixed boundary line between their land and the land owned by the plaintiff. Defendants also claim a right to course irrigation water which is used to irrigate their land across the land owned by the plaintiff. The plaintiff contends that they have no such right.

These proceedings were begun in Juab county, but upon stipulation of counsel were transferred to Salt Lake County for trial. Trial was had before the court without a jury. The court awarded the 6.44 acres of land in dispute to the defendants. The court also found that defendants were entitled to course their irrigation water through two artificial ditches across plaintiff's land. The plaintiff appeals.

The defendants assign cross-errors and claim that the court should have found that one of the irrigation ditches through which they were awarded the right to course their water was a natural channel, and should have been so found.

By the assignments of error the plaintiff attacks the sufficiency of the evidence to support the findings and the decree awarding the 6.44 acres of land to the defendants.

The plaintiff deraigns his title to the land in dispute through his father, E. W. Tripp. On July 2, 1883, E. W. Tripp made a homestead entry, which included lot 4 and the southwest quarter of the northwest quarter of Sec. 1, Tp. 11 S., R. 17 W., S. L. M. Final certificate for his homestead entry was issued to E. W. Tripp on January 3, 1884, and patent issued August 3, 1899. E. W. Tripp conveyed the property included within his homestead entry to his wife, Julia A. Tripp, by warranty deed dated September 28, 1888. Julia A. Tripp conveyed the property in dispute to the plaintiff by deed dated August 28, 1919.

The defendants deraign title to their lands in manner following: On July 3, 1883, George W. Boyd made a homestead entry which included lot 3 and the southeast quarter of the northwest quarter of Sec. 1, Tp. 11 S., R. 17 W., S. L. M. On November 28, 1887, George W. Boyd received final certificate for his homestead entry. Patent was issued to him under date of March 4, 1890. George W. Boyd and his wife, Abgail S. Boyd, conveyed the land covered by his homestead entry to Charles Bagley, the father of the defendants E. C. Bagley, A. H. Bagley, and F. E. Bagley, by warranty deed dated April 16, 1888. Under date of January 6, 1908, Charles Bagley and his wife conveyed the land received from George W. Boyd to his sons Edward C. Bagley, Andrew H. Bagley, Frank C. Bagley, defendants herein, and Grant C. Bagley. On April 4, 1925, the Bagley land was conveyed to Juab county, Utah, by auditor's tax deed. On May 7, 1927, the Bagleys paid the taxes, and Juab county conveyed the land to the defendant Frank E. Bagley.

The subjoined plat will serve to illustrate and enable the reader to better visualize the shape and location of the land in dispute.

[SEE DIAGRAM IN ORIGINAL]

The line A-B represents the location of the surveyed boundary line between lot 3 and lot 4 and between the southwest quarter of the northwest quarter and the southeast quarter of the northwest quarter of Sec. 1, Tp. 11 S., R. 17 W., S. L. M.

The plaintiff thus holds the record title to the land lying to the reader's left of the line A-B. The defendants own the land lying to the reader's right of the line A-B. The tract of land in dispute is indicated by the enclosure A-E-D-C. The courses and distances of the boundary of the land in controversy are shown on the plat.

In about 1870 E. W. Tripp and his wife, Julia A. Tripp, established their home at Callao near the land here in dispute. Soon after the Tripps located at Callao they inclosed within a fence about 18 or 20 acres of the best land located in the immediate vicinity. The land within the inclosure was used to raise cultivated crops. The land in dispute was included within the inclosure. The westerly part of the fence was constructed along or near the line C-D-E indicated on the foregoing plat. At the time the fence was so constructed the land in and about Callao had not been surveyed. In about the year 1877 George W. Boyd and his family located at Callao. After Boyd established his home at Callao, his family and the Tripps jointly used the land or a part of the land in controversy for the purpose of raising gardens. In the spring and summer of 1882 the land at Callao, including the land here in controversy, was surveyed under the direction of the U.S. Surveyor General's office of Salt Lake City, Utah. At that time the line A-B on the foregoing plat was run between lot 3 and lot 4. Soon after this survey was completed a fence was erected along the line between the southwest quarter of the northwest quarter and the southeast quarter of the northwest quarter of Sec. 1, Tp. 11 S., R. 17 W., S. L. M., extending south from the point indicated by E on the plat. The location of the fence along the line C-D-E was not changed. The Boyds and Tripps continued to use jointly the land in dispute up to and including the year 1885. In April, 1885, Charles Bagley took up negotiations with George W. Boyd for the purchase of the land included within Boyd's homestead entry.

The defendant A. H. Bagley testified that in April, 1885, he and his father, Charles Bagley, went out to Callao to purchase the Boyd ranch; that they, together with George W. Boyd and E. W. Tripp, went to look over the gardens which were then growing upon the land in dispute; that Mr. Boyd "said that that was the first piece of ground ever broken up in that country. * * * That when Mr. Tripp made his entry his land took in this piece of ground, but it was his property and always had been, and Mr. Tripp said he always considered it as part of Mr. Boyd's ranch. Father (Charles Bagley) said 'unless that piece goes on the ranch that I am buying so that my boys can raise some potatoes and garden stuff I wouldn't have the ranch, * * * I would want all this enclosed with a fence in this piece I would want to consider that I was buying that' and Mr. Tripp and Mr. Boyd said that would be the boundary line. It was a good pole fence on the south and there was a fence on the west with several wires with poles laid on the top and they said that must be the boundary line between the ranches and they stated it would be so." On May 6, 1886, Charles Bagley paid George W. Boyd $ 1,000 on the purchase price of the Boyd ranch. The Bagleys went into possession of the Boyd ranch in the spring of 1886, and they retained possession thereof until this action was begun in August, 1922. Charles Bagley, G. W. Boyd, and E. W. Tripp were all dead when this suit was tried. The plaintiff, George W. Tripp, testified that in 1889 he overheard a conversation between his father, E. W. Tripp, and defendant E. C. Bagley in the presence of B. B. Tripp, wherein E. W. Tripp told defendant E. C. Bagley that, if he (Bagley) was going to reconstruct the fence along the line C-D-E, he (Bagley) should move it back onto the line between lot 3 and lot 4; that, at the time this conversation was had, defendant E. C. Bagley moved part of the fence farther to the west. The plaintiff also testified that about that time his father, E. W. Tripp, placed four posts along the line of the survey between lot 3 and lot 4. B. B. Tripp corroborated the testimony of the plaintiff as to the conversation between E. W. Tripp and defendant E. C. Bagley. James Spence testified that he, was at Callao from November 1919, until December, 1920; that he had a conversation with E. C. Bagley concerning the boundary line between the Bagley ranch and the Tripp ranch; that Bagley stated that the survey line between the Tripp ranch and the Boyd ranch was not legal, because it was not made by the county surveyor; that one day while he was at the Bagley house a nephew of E. C. Bagley came in with a post attached to a lariat, and said, "Here is one of the posts that Tripp put up on the corner up there." Spence further testified that he saw posts along the line between lot 3 and 4, and also saw where a post located on the boundary line had been cut off; that E. C. Bagley said he cut the post down; that, while Spence was moving on the land in dispute, Bagley told him to cut down a post that was in the way; that he saw one of the posts that was located on the boundary line between lot 3 and lot 4 after the same had been dug out of the ground. E. C. Bagley denied that E. W. Tripp told him to put the fence on the survey...