Van Wagoner v. Whitmore

• Decision Date: 09 May 1921
• Docket Number: 3613
• Citation: 199 P. 670,58 Utah 418
• Court: Utah Supreme Court
• Parties: VAN WAGONER v. WHITMORE et al. (STATE, by STATE BOARD OF LAND COMMISSIONERS, Intervener)

199 P. 670

58 Utah 418

VAN WAGONER v. WHITMORE et al. (STATE, by STATE BOARD OF LAND COMMISSIONERS, Intervener)

No. 3613

Supreme Court of Utah

May 9, 1921

Rehearing Denied July 15, 1921.

Appeal from District Court, Seventh District, Carbon County; Geo Christensen, Judge.

Action by A. D. Van Wagoner against J. W. Whitmore, administrator of the estate of George C. Whitmore, deceased and another in which the State of Utah by its State Board of Land Commissioners, intervened. Judgment for plaintiff, and defendants appeal.

AFFIRMED.

A. R Barnes and D. N. Straup, both of Salt Lake City, for appellants.

Ferdinand Ericksen and Thos. L. Mitchell, both of Salt Lake City, and M. P. Braffet, of Price, for respondent.

Harvey Cluff, Atty. Gen., and Herbert E. Smyth, of Salt Lake City, for intervener.

THURMAN, J. CORFMAN, C. J., and WEBER, GIDEON, and FRICK, JJ., concur.

OPINION

THURMAN, J.

This is an action in ejectment to recover possession of a part of section 2, township 15 south, of range 13 east, of the Salt Lake base and meridian, situated in Carbon county, Utah and damages for detention of the property.

The action was originally commenced against George C. Whitmore and Peter C. Jones. The answer of these defendants disclosed the fact that Whitmore claimed ownership of the property by adverse possession, and that Jones was Whitmore's agent merely, and claimed no other interest.

The quantity of land claimed by Whitmore is 56.68 acres. By their amended answer defendants rely on certain statutes of limitation as the same are found in the Compiled Laws of Utah 1907, in force when the action was commenced. These statutes now appear in Comp. Laws Utah 1917 as sections 6446, 6447, 6449, and 6450.

The state of Utah by its Board of Land Commissioners (hereinafter called Board), having sold the land in controversy to plaintiff in accordance with proceedings had under the statutes relating to the disposal of state lands, conceived the idea that the state was an interested party and should be permitted to intervene. The intervention was allowed, and a complaint in intervention filed by the Board.

The pleadings are prolix, but the issues free from complications.

Without attempting to state in detail the various allegations of the pleadings, or even the substance thereof, in this connection it is sufficient to state that the plaintiff claims title under a patent from the state issued by the Board. J. W. Whitmore, as administrator, successor to George C. Whitmore, who died after the action was commenced, claims title by adverse possession under the statutes above referred to, while the state, as intervener, in defense of plaintiff's title contends that the statutes of limitations relied on by defendants have no application to the case.

The complaint in intervention sets out in minute detail various grounds upon which the state challenges the validity of the defense interposed by the defendants. The grounds relied on by the Board, and the reply thereto, as far as the same are material, will appear later on in our discussion of the questions involved.

After the substitution of J. W. Whitmore, administrator, as defendant, he was permitted by the trial court to amend his answer and file a counterclaim for the value of the improvements placed on the land by his intestate in the event that it should be adjudged that plaintiff is entitled to the property. The court to whom the case was tried without a jury found the issues in favor of the plaintiff, both for the possession of the land and damages for its detention, and refused to allow the value of the improvements claimed by the defendants in the counterclaim.

Judgment was accordingly entered for plaintiff, and defendants appeal. Many errors are assigned, and the same will be considered as far as necessary to the determination of the questions involved.

While the question of damages claimed by respondent and the value of the improvements claimed by appellant Whitmore, in the event that respondent, Van Wagoner, is adjudged to be entitled to the property, are questions that must be determined, it is conceded by all parties to the action that the controlling and overshadowing question is, Are the lands in controversy subject to the statutes of limitations relied on by appellants and can title thereto be acquired by adverse possession? If these questions must be answered in the affirmative, the judgment of the trial court should be reversed; if answered in the negative, then questions relating to respondent's damages and value of improvements claimed by appellants must be determined.

As the statutes of limitation specifically pleaded and relied on by appellants constitute the foundation of their defense to respondent's action, they are deemed of sufficient importance in this connection to quote at length for the convenience of the reader. The quotations are made from the Compiled Laws of Utah 1917:

"6446. The state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title * * * to the same, unless:

"1. Such right or title shall have accrued within seven years before any action or other proceeding for the same shall be commenced; or,

"2. The state or those from whom it claims shall have received the rents and profits of such real property, or some part thereof, within seven years.

"6447. No action can be brought for or in respect to real property by any person claiming under letters patent or grants from this state, unless the same might have been commenced by the state as herein specified, in case such patent had not been issued or grant made."

"6449. No action for the recovery of real property, or for the possession thereof, shall be maintained, unless it appear that the plaintiff, his ancestor, grantor, or predecessor was seized or possessed of the property in question within seven years, before the commencement of the action.

"6450. No cause of action, or defense or counterclaim to an action, founded upon the title to real property or to rents or profits out of the same, shall be effectual unless it appears that the person prosecuting the action, or interposing the defense or counterclaim, or under whose title the action is prosecuted or defense or counterclaim is made, or the ancestor, predecessor, or grantor of such person was seized or possessed of the property in question within seven years before the committing of the act in respect to which such action is prosecuted or defense or counterclaim made."

It is an undisputed fact that George C. Whitmore was in the open and notorious occupancy and possession of the land in question ever since long before Utah was admitted into the Union. It is also undisputed that he inclosed the land with a fence, made other improvements thereon, such as the construction of water ditches, and that he cultivated the land and produced crops thereon from year to year. There were all the outward appearances of an adverse holding by him under claim of right, except the payment of taxes on the land, and, as to those, none were levied or assessed. Whether or not it was his duty to pay taxes in any event, whether the land was assessed or not, in order to establish a title by adverse possession presents a question of law which may or may not be necessary to determine in the case at bar, and as to whether or not he intended to hold adversely to the state, which at the date of its admission into the Union became the legal owner of the property, does not appear, but for the purposes of the discussion the fact may be admitted. With these outward appearances and indications undisputed, and the other facts assumed, it would seem that the sections of the statute relied on afford a complete bar to respondent's action in the present case; that is to say, taking the outward appearances above referred to, and assuming that the payment of taxes was not required, and that the intention of Whitmore was to hold adversely and not in subordination to the state, the conditions seem to favor the contention of appellants that respondent's right of action was barred when the suit was commenced.

However, inasmuch as the class of land to which the land in controversy belongs was granted to the state of Utah by act of Congress July 16, 1894, commonly known as the Enabling Act, for the support of common schools in the state, respondents contend that the statutes of limitation do not apply. Their position is best stated in the words of their own counsel as the same appear in their printed brief filed in the case:

"Now, we do not contend that the state of Utah has not consented to a bar against the state in some matters, but we do contend that the lands involved in this controversy, being school lands, are not within the class of property as to which the state has consented to be barred, or consented to any title being acquired by adverse possession. At first blush, section 6446 et seq. might seem to justify an assumption that the state is barred as to all real property, but we contend that the nature and purpose of the school grant from the United States, the wording and spirit of the acceptance of the grant in the state Constitution, the legislative provisions to carry out and utilize the grant for the purpose for which it was granted, the necessary incidents of this trust, and the beneficent result of a faithful performance of the trust, are such that to permit a construction of said sections 6446 et seq., taking away the substance of the grant, despoiling the school fund, would be an utter violation of the terms of the trust imposed by the donor and of the solemn conditions specified in the acceptance of the grant."

Counsel for respondents then quote from section 6 of...