Willie v. Local Realty Co.
| Decision Date | 11 December 1946 |
| Docket Number | 6950 |
| Court | Utah Supreme Court |
| Parties | WILLIE v. LOCAL REALTY CO. et al |
Appeal from District Court, Third District, Salt Lake County Ray Van Cott, Jr., Judge.
Action by Henry A. Willie against the Local Realty Company, Mary Workman Dillon, and another to quiet title to a strip of land between the plaintiff's property and that owned by the defendants, and to enjoin the defendants from using the land and to recover damages for their past interference with his possession of the land, wherein the lastnamed defendant counterclaimed to have the title to the property involved quieted in her. From a decree quieting title to the land in the plaintiff and enjoining the defendants from interfering with the plaintiff's possession and dismissing the counterclaim, the last-named defendant appeals.
Case remanded with instructions to modify the decree.
Skeen Thurman & Worsley, of Salt Lake City, for appellant.
Riter Cowan & Carter, of Salt Lake City, for defendants.
Duncan & Duncan, of Salt Lake City, for respondent.
This appeal involves a boundary line dispute.
Willie brought this action against the Local Realty Company and against Mrs. Dillon to quiet title to a strip of land between his property and that owned by the defendants; to enjoin the defendants from using said strip of land and for damages for their past interference with his possession of said strip. Defendant Dillon counterclaimed to have the title to the property involved quieted in herself and for damages. The trial court quieted title to the strip in plaintiff Willie, enjoined the defendants from interference with his possession thereof, allowed no damages, and dismissed defendant Dillon's counterclaim. Defendant Dillon appeals.
The uncontested facts are as follows: Willie is the owner of a house and lot on the east side of 9th East Street between 5th and 6th South Streets in Salt Lake City. The Local Realty Company is the holder of the legal title and Mrs. Dillon the beneficial owner -- hereinafter referred to as owner -- of an adjoining house and lot to the north.
In 1883 the Willie property was owned and occupied by Christian Willie. The Dillon property was owned by Charles Kropf. Christian Willie and Kropf built their houses so that one wall was used as the partition wall between the two houses. After these two houses were built, Christian Willie and Kropf entered into the following agreement on July 15, 1883:
In 1922 a successor in interest to Kropf and a predecessor in interest to Mrs. Dillon tore down and removed the house on the Dillon property and built a new one away from the Willie house.
The present condition of the properties is as illustrated by the following sketch: [SEE ILLUSTRATION IN ORIGINAL]
Line X-Y represents the dividing line between the two properties according to the conveyances to both parties and as determined by a survey made by the city engineer the accuracy of which survey is not questioned by either party.
From point O to point P is a cement retaining wall which was built in 1923 by the Dillon predecessor in interest who tore down the old house and built the new one (not shown in sketch) on the Dillon property. The wall is approximately six inches thick. At the west property line the north side of the wall is 2.48 feet north of the survey line. At point P the north side of the wall is 2.25 feet north of the survey line.
The retaining wall continues from P to H where there is a small jog in the Willie house. From H to R is the north side of the Willie house on which side the predecessor in interest to Dillon placed wooden facing boards when he removed the house that was then attached. From R to S is a plastered rock wall. Boards at D and F were placed there by persons interested in the Willie property to keep soil and water from running on to their property from the Dillon lot. There are old fence posts at E and B. There is a tree at C and a grapevine root at A.
The testimony given by plaintiff and his witnesses is in part in conflict with that given by the defendant and her witnesses as to whether or not there were fences dividing the properties, when such fences were constructed and where they were located.
The trial court found as facts that Willie was the owner in fee of the property up to the north face of the cement retaining wall, the north face of the house, and along where the fence east of the house used to be, that is the line S-T which at the east property line is 2.58 feet north of the survey line. It found that for 62 years preceding the action successive fences and walls at the front and rear of the old house and the party wall of the house marked the boundary line between the two lots.
The first question is factual, to wit: Does the evidence support the finding that for 62 years before the commencement of this action fences and party walls separated the properties on the line O-T and that all persons concerned acquiesced in the line marked by those structures?
It will serve no useful purpose to here detail the evidence given for and against the propositions that fences existed and where and when they existed. Suffice it to say that plaintiff and his witnesses testify that since 1886 and until 1940 successive fences divided the lots on the line S-T (in the rear, east of the Willie house) and that in 1886 the then existing board fence had been in place for some time. They testify that from Point P to point O (in the front of and to the west of the house) from 1886 to 1912 there was a board fence dividing the lots. That in 1912 that fence was replaced by a wire fence which in 1923 was replaced by the present cement retaining wall. The party wall between the two houses was in existence in 1883. Plaintiff and most of his witnesses are persons with long and intimate acquaintanceship with the properties. They located the fences by reference to fence posts, the tree and the grapevine root and the northeast corner of the present house. Point T, which is 2.58 feet north of the official survey line, was located from memory of where the end fence post was prior to its removal in 1940 by one of Dillon's predecessors in interest.
The testimony of defendant Dillon and her witnesses goes back only to 1915 and does not refute the major portion of the testimony of plaintiff and his witnesses.
The evidence clearly preponderates in support of the finding that the old party wall of the houses (now the north wall of the Willie house) had existed for 62 years along the line O-T. The evidence as to the walls and fences both in the front and rear of the lots goes back only to 1886, 59 years before this action was started. The evidence would preponderate in support of a finding that for 59 years preceding this action, fences and walls marked the lines O-P (front) and S-T (rear). The difference between the time fixed by the court (62 years) and that clearly supported by the evidence (59 years) is immaterial to this case.
It is equally clear that from at least as far back as 1886 until 1938 when Mrs. Dillon first became interested in the property that none of the occupants or owners of the Dillon property objected to the structures along the line O-T marking the dividing line between the properties. There is no evidence that any of Dillon's predecessors in interest or that Willie or any of his predecessors in interest knew the location of the boundary line called for by their deeds until Mrs. Dillon in 1943 had the survey made locating the line X-Y as that boundary line.
The second question, one of law, is: Does the fact that the line O-T was marked for at least 59 years and recognized for at least 52 years as the boundary line between the two lots establish it as the dividing line even though the line called for in the deeds is some 2.5 feet south of that line?
Both parties seem to rely on the 1883 party wall agreement quoted earlier in this opinion to support their respective positions. Willie contends the agreement was a recognition of an already existing line established along the party wall at the time the two houses were built....
To continue reading
Request your trial
-
Halladay v. Cluff
...capable of being readily ascertained." Ekberg v. Bates, 121 Utah 123, 127, 239 P.2d 205, 207 (1951), quoting Willie v. Local Realty Co., 110 Utah 523, 531, 175 P.2d 718, 723 (1946). Uncertainty or dispute was much easier to prove under this rule, which therefore had the effect of increasing......
-
Paurley v. Harris
...'acquiescence'. See Lewis v. Smith, 187 Okl. 404, 103 P.2d 512. Draper v. Griffin, 61 Cal.App.2d 281, 142 P.2d 772; Willie v. Local Realty Co., 110 Utah 523, 175 P.2d 718; Needham v. Collamer, 94 Cal.App.2d 609, 211 P.2d 308; Dragos v. Russell, Utah, 237 P.2d 831; Martin v. Lopes, Cal.App.,......
-
Brown v. Milliner
...51 Utah 312, 170 P. 65; Van Cott v. Casper, 53 Utah 161, 176 P. 849; Davis v. Lynham, 67 Utah 283, 247 P. 294; Willie v. Local Realty Co., 110 Utah 529, 175 P.2d 718. In other cases decided by this court the rule was recognized but held not applicable under the evidence: Rieske v. Hoover, 5......
-
Kent Club v. Toronto, 8341
... ... It is axiomatic that the best governed are those who are governed by local authority. The purposes of the act, expressed in the main opinion, could be accomplished as well ... ...