Whittaker v. Ferguson

• Decision Date: 19 January 1898
• Docket Number: 847
• Court: Utah Supreme Court
• Parties: ISAAC N. WHITTAKER, APPELLANT, v. WILLIAM FERGUSON, RESPONDENT

51 P. 980

16 Utah 240

ISAAC N. WHITTAKER, APPELLANT, v. WILLIAM FERGUSON, RESPONDENT

No. 847

Supreme Court of Utah

January 19, 1898

Appeal from the Fourth district court, Utah county. W. N Dusenberry, Judge.

Action by Isaac N. Whittaker against William Ferguson to recover damages for removal of a fence. From a judgment for defendant, plaintiff appeals.

Affirmed.

J. W N. Whitecotton, for appellant.

On the question of prescription the following cases are cited Elliot on Roads and Streets, p. 137; Quinn v. Anderson, 11 P. 746; Shellhouse v. State, 11 N.E. 484; Smith v. Smith, 8 P. 385; Harding v. Jasper, 14 Cal. 651; Graham v. Hartnell, 7 N.W. 280; State v. Horn, 12 P. 148.

S. A. King and A. D. Gash, for respondent.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

This action was brought to recover damages from the defendant, who was road supervisor of a certain district in Utah county, for removing fences which the plaintiff had erected across a road; the defendant claiming that the road was a public highway. The cause was tried by the court without a jury, and decided in favor of the defendant.

The decisive question on this appeal is whether the road in dispute is a public highway. Counsel for the appellant, inter alia, insists that it was never dedicated as such to public use. The court, among other things, found that from the year 1884 down to 1895, the time when the acts complained of were committed, the plaintiff's land, on which the road is located, "was used, occupied, abandoned, and dedicated to the public use and convenience"; that the owner of the land acquiesced in the use of the land as a highway during all of that time and that the plaintiff herein, and his grantors and predecessors in interest, at all times and all occasions, acquiesced in and agreed to the use of said roadway, as it now exists, and as it has existed since 1862. It is urged for the appellant that the evidence is insufficient to justify these findings. This, however, is a question of fact in a case at law, and therefore we have no power to consider the justness of the findings. The only province of this court in such a case is to ascertain whether there is any legitimate proof which supports them, and, if there is, then we are conclusively bound by them, regardless of whether or not the findings are supported by a preponderance of the testimony, or whether, in our judgment, on all the evidence, they are justified. It is only when there is no competent evidence in a law case to warrant a finding of fact which materially affects the rights of a litigant that this court will interfere, and hold the finding nugatory and void. In such event, the question as to the proof to sustain the finding becomes one of law, and falls within the jurisdiction of the appellate court. Likewise, where a case at law, in this state, is tried before a jury, the appellate court is powerless to disturb the verdict on the ground of the insufficiency of the evidence, if there is any legitimate proof to support it, because in no case, whether tried by the court with or without a jury, can we determine questions of fact. This is so by virtue of the constitution, which provides in section 9, art. 8, as follows: "In equity cases the appeal may be on questions of both law and fact; in cases at law the appeal shall be on questions of law alone." Under this provision, it will be observed, an appeal may be taken in equity cases on questions of fact as well as of law. The appellate court, therefore, by necessary intendment and implication, has the same jurisdiction and power in equity cases to determine questions of fact as of law, and may go behind the findings and decree of the trial court, consider all the evidence, decide on which side the preponderance thereof is, ascertain whether or not the proof justifies the findings and decree, and enter or direct such findings and decree to be entered as the evidence, in the judgment of the appellate tribunal, may justify. The constitutional provision, however, confers no such jurisdiction and power upon the appellate court in cases at law, for in such cases the appeal is expressly limited to "questions of law alone," and hence the jurisdiction and power in law cases are limited to the determination of questions of law. We can, therefore, in cases at law, examine the evidence only so far as may be necessary to determine questions of law, and have nothing to do with the sufficiency of the evidence to justify a...