Bingham Livery & Transfer Co. v. McDonald

110 P. 56, 37 Utah 457, 1910 Utah LEXIS 71

• Court: Utah Supreme Court
• Decided: April 29, 1910
• Docket: No. 2083
• Status: Published

Opinion

McCAKTY, J.,

after stating tbe facts, delivered tbe opinion of tbe court.

Respondent has filed a motion to strike from tbe record certain documents, consisting of plats, deeds, tax receipts, and other papers (marked. Exhibits “A” to “V”) that were received in evidence, on tbe ground “that tbe same are not authenticated by tbe clerk of tbe court below nor transmitted by said clerk, nor do tbe same constitute any part of tbe transcript certified on appeal by tbe clerk of tbe court below.” This motion is followed by another to strike from tbe record tbe bill of exceptions on tbe ground that it shows on its face that it does not contain all tbe evidence received upon tbe trial; that- certain documents (“A” to “V,” exhibits) introduced in evidence, material to tbe consideration of tbe errors assigned, are omitted from the bill of exceptions and tbe transcript. It appears that eacb of tbe documents and papers referred to in tbe motions to strike was produced at tbe trial, shown to and identified by witnesses as being tbe identical instrument or thing that it purported to be, marked for identification by the court stenographer, and then introduced in evidence. Tbe references made in tbe transcript of tbe proceedings to each document, paper, or thing, introduced in evidence as an exhibit are not only referred to by their identification marks, but tbe name and character of eacb document or thing marked as an exhibit is stated in the record. It would be difficult to make a record more full and complete in this respect than the one before us, without reading the entire contents of each exhibit, consisting of written or printed matter into the record. The certificate of the judge to the bill of exceptions recites “that the above and foregoing bill of exceptions contains all of the testimony and all of the evidence given and introduced or offered upon the trial of said cause, and all of the objections and motions made with respect thereto, and all of the rulings of the court upon such objections and motions, and all of the exceptions to such rulings, and particular reference sufficient to identify all of the documentary evidence given and introduced or offered upon said trial.” It is contended in support of the motions: First, that as the exhibits were neither incorporated in nor attached to the transcript on appeal, they are no part of the bill of exceptions and cannot be considered by this court; second, that the reference made to the exhibits in the certificate of the judge to the bill of exceptions is not sufficient to identify them, and to prevent this court from being imposed upon by the substitution of documents and papers not in the record for 1 those that were received in evidence, and made a part of the bill of exceptions. We think the contention is wholly without merit.

In answer to the objection that the exhibits are neither incorporated in nor attached' to the transcript, it is sufficient to say that the statute makes no sucb requirement, and if it did it would require something to be done which, in many cases, would be an impossibility. It is not an unusual thing for exhibits received in evidence in the trial court and used in this court on appeal to illustrate the issues, facts, and questions involved, to consist of maps, documents, and records too numerous and bulky to attach to the transcript. And in some cases exhibits consisting of models made of iron or heavy pieces of timber are brought here as part of the record on appeal. In such cases it would be impossible to incorporate the exhibits in or to make them a part of the transcript. Section 3284, Comp. Laws 1907, among other things, provides that in making up' a bill of exceptions “documents on file in the action or proceeding may 2 be copied or the substance thereof stated, or reference thereto sufficient to identify them, may he made." (Italics ours.) As we have observed, the references made in the bill of exceptions to the exhibits are sufficient to enable this court to readily identify them, and this is all that the statute requires in that respect..

A map showing the location of the land in dispute, with reference to streets and other properties in the immediate vicinity, and designated in the record as “Plat A,” was used' by both parties at the trial to help illustrate the evidence given by many of the witnesses. This map was marked “Exhibit G” for identification. In offering it in evidence counsel for appellant referred to the map as “Plat G” instead of “Exhibit G.” Counsel for respondent strenuously insist that the map should be stricken from the bill of exceptions, because not identified as the map admitted in evidence. The record shows that after the map was received in evidence counsel on both sides, during the remainder of the trial, re-pepeatedly referred to it as “Plat G.” The numerous references made in the bill of exceptions to this map as “Plat G,” and the fact that it is the only exhibit in the case marked “G” for identification, conclusively shows that 3 “Plat G” and “Exhibit G” are one and the same thing. The motions to strike are denied. The conclusions here reached are fully supported by the following authorities. (3 Ency. Pl. & Pr. 430, and cases cited; 2 Spelling New Tr. and App. Pro. section 447, Elliott on App. Pro. sections 818, 819; 3 Cyc. 58.)

Appellant has assigned several errors in which he assails the findings of fact made by the court and the judgment rendered thereon. It is contended that the findings of fact are not only unsupported by, but are contrary to, the evidence. As we observed in the foregoing statement of facts, appellant claims that he acquired title to the premises in dispute by continuous, open, uninterrupted, adverse possession of the same for a period of more than twenty years under claim of title founded upon a written instrument, as provided in sections 2862, 2863, Comp. Laws 1907, which, so far as material here, are as follows:

“2862- Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the property under claim of title exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in question, . . . and that there has been a continued occupation and possession of the property incuded in such instrument, ... or of some part of the property under such claim, for seven years, the property so included shall be deemed to have been held adversely, except that when the property so included consists of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract.

“2863. For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, . . . land shall he deemed to have been possessed and occupied in the following cases. ... 2. Where it has been protected by a substantial enclosure. 3. Where, although not enclosed, it has been used for the supply of fuel or of fencing timber for purposes of husbandry, or for pasturage, or for the ordinary use of the occupant.” (Italics ours.)

With the exception, of a slight, unimportant change in section 2862, the foregoing has been the law of Utah since 1876. See sections 1101 and 1102, Rev. St. 1876, sections 3134 and 3135, vol. 2, Comp. Laws 1888, and sections 2862 and 2863, Rev. St. 1898.

The first point to be determined is: Does the evidence show that the appellant’s possession of the premises was of the continuous and open character contem- 4 plated by the statute ? We are clearly of the opinion that it does. Tbe evidence, without conflict, shows that from November, 1876, until the commencement of this action appellant used lot 8.0 as a yard in connection with his blacksmith shop, one corner of which was on said lot. He not only used this building, which contained two rooms or apartments, as a workshop, but during all these years occupied it as his residence. The room or apartment on the east and facing the street he used as a blacksmith shop and the back or west apartment as an office and living room. On this point appellant testified, and his testimony is corroborated by several other witnesses who testified in reference to the same matter, as follows: “I had need of this twenty-five feet of ground (lot 80) to the south of my blacksmith shop for repairing wagons, sleighs, and things like that. I have never had any other place for my blacksmith yard during all of the time I have been in possession there. My residence was in the blacksmith building. I slept there and batched there. I kept a stove there and had a lot of coal and firewood on the south line of lot 80 for heating tires. I left wagons and sleighs on lot 80 and did repair work there.”

Appellant built an outhouse, or water closet, on lot 80 which was used as an appurtenance to his home and blacksmith shop during his occupancy of the premises. By referring to the map or diagram in the foregoing statement of the facts it will be observed that the owners of the adjoining property on the north and on the south of this lot have constructed buildings near and in some instances contiguous to the boundary lines thereof, but on no occasion have they, or any of them, so far as shown by the record, ever attempted to encroach upon the property in controversy with their improvements or in any manner interfere with appellant’s occupancy of the same, until the commencement of this action. One of these buildings was constructed and maintained by respondent north of and contiguous to lot 80. In fact, the only interest respondent claimed in the west half of the lot prior to the filing of its second amended' complaint (January 15, 1907) was tbe right to use that portion of it in common with appellant. This is manifest from tbe fact that it is alleged in tbe original complaint and in tbe first amended complaint, both of which were verified by A. V. Anderson, vice president and secretary of tbe company, and who, as shown by tbe record, has been familiar with tbe facts and circumstances under which appellant claimed tbe property since 1898, “that plaintiff is now, and with its grantors and predecessors in interest for upwards of seven years last past has been, tbe owner in fee simple of tbe right to use and possess in common with the said defendant, the west half of lot 80.” And in tbe prayer of this complaint it is asked that it be adjudged and decreed to “be tbe owner in fee simple of tbe right to use and possess in common with said defendant of tbe premises hereinbefore described.” In 1878 appellant built a fence along tbe north line of lot 80, extending from a point near the southwest corner of tbe blacksmith shop to tbe northwest comer of tbe lot. This fence be maintained until 1895 when it was destroyed by fire, which also burned down tbe blacksmith shop. Oarr’s Fork creek on tbe west, and tbe mountain which rises abruptly from tbe creek to tbe west, formed tbe westerly boundary of tbe lot, and we think it may be fairly inferred from tbe evidence that appellant, during bis occupancy of tbe land, has paid all tbe taxes that have been assessed against it.

It is contended that because respondent and its predecessors in interest occasionally passed over lot 80 in hauling bay to and manure from tbe livery stable appellant’s possession was thereby interrupted, and hence not continuous. Tbe Supreme Court of California has repeatedly defined what constitutes “possession and occupancy” under a statute which is identically tbe same as tbe statute of this state. In Coryell v. Cain, 16 Cal. 573, Field, C. J., in speaking for tbe court, said:

“By actual possession is meant a subjection to the will and dominion of the claimant, and is usually evidenced by occupation — -by a substantial enclosure — by cultivation, or by appropriate use, according to the particular locality and quality of the property.”

In Wolf v. Baldwin, 19 Cal. 313, it is said:

“Possession which is accompanied with the real and effectual enjoyment of the property” is sufficient. “It is the possession, which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must he evidence by occupation or cultivation, or other appropriate use, according to the locality and character of the particular premises.”

Baldwin, J., concurring, says:

“It must, in other words, be an open, unequivocal, actual possession, notorious, apparent, uninterrupted, and exclusive, carrying with it the marks and evidences of ownership, which apply in ordinary cases to the possession of real property.”

See also, Brumagim v. Bradshaw, 39 Cal. 24; Webber v. Clark, 74 Cal. 11, 15 Pac. 431; Kockemann v. Bickel, 92 Cal. 665, 28 Pac. 686; 1 Cyc. 999; 2 Ency. L. & P. 366.

Holtzman v. Douglas, 168 U. S. 278, 18 Sup. Ct. 65, 42 L. Ed. 466, was a case in ejectment. In that case, as bere, the defense of adverse possession was interposed. The use made of the premises in that case was somewhat similar to the use made of lot 80 by the defendant in this case. In the course of the opinion the court summarized and commented on the evidence as follows:

“It was testified on behalf of the defendants that some time in the latter part of the same year, 1865, one Richard Rothwell, a stonecutter and builder, who owned and occupied an adjoining lot, deposited upon the rear of the lot in controversy some pontoons, which he had purchased from the United States, and which he stored there until he could malee some disposition of them; and that he afterwards used a part of this lot for the deposit of stone and marble which he used in his business. He testified that he had deposited three or four wagon-loads of marble there as early as the year 1867, and that some of the pontoons remained in the lot four or five years. He also testified that, m the year 1870, he commenced to deposit stone there in large quantities; and that in 1872 he erected a small shed on the lot in which to carry on his work, and which he replaced with a larger structure in or about the year 1882. . . . Although there was no fence around this lot during the period in question, yet it was occupied by the tenant for the purpose of his business, that of marble and stone cutting; and although every foot of the property was not covered by his material, yet it was placed upon the lot in a convenient manner to be used by him in the prosecution of his business, and in a manner which showed that his possession was not in connection with any others, but was exclusive and perfect in himself. . . . We agree with the court below when, through Mr. Justice Morris, it says that: ‘Short of an actual enclosure, it is not easy to conceive of a use and occupation more sharply distinctive and adverse than the conversion of the property into a stoneyard, with the stone practically scattered all over it, according to the testimony of one or more of the witnesses.’ ”

Moreover we think the facts in the case at bar clearly bring it within the doctrine announced by this court in the case of Pioneer Investment & T. Co. v. Board of Education (recently decided by this court), 35 Utah, 1, 99 Pac. 150. In that ease the question of adverse possession was involved and Mrs. Justice Frick, speaking for the court, in the course of the opinion, says:

“It is not, the mere possession-that determines the rights of the parties, but it is the character of the possession that controls. But how is the character of the possession to be determined? It cannot always be determined from the declarations of the party in possession, because he may not make any, nor are his declarations always conclusive as against one claiming under him. Whenever the possession is of such a character that ownership may be inferred therefrom, then the possession ordinarily may be presumed to be hostile to the rights of the true owner; that is, if a party places permanent structures upon the land belonging to another, and uses the land and structures the same as an owner ordinarily uses his land, then in the absence of something showing a contrary intention, a claim of ownership may be inferred in favor of the party in possession.”

Attention is also invited to the case of Toltec Ranch Co. v. Babcock, 24 Utah, 183, 66 Pac. 876, wherein this court, speaking through Mr. Justice Bartch, says:

.‘ÍTheJand was-occupied and used the same as other lands were in. that _ neighborhood'.' The possession, as appears from the evidence, was open, notorious, uninterrupted, and peaceable, and under a^lajffiTarfigfifc- It must, therefore, necessarily be deemed to have been adverse to the holder of the legal title, and such long-continued possession may be-deemed to have been adverse, though not in character hostile. ‘Where one is shown to have been in possession of land for the period of limitation, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse.’ (1 Am. and Eng. Enc. Law [2d Ed.], 889, 890; 3 Washb. Real Prop. [4th Ed.], 159, par. 43.)”

As we Have observed, lot 80' was used by appellant as a yard in connection with his blacksmith establishment. And tbe evidence shows that be permitted teamsters, peddlers, and others who had occasion to do so, to nse it as a camp ground when such usage did not interfere with his own use and occupation of the lot. TJnder these circumstances the occasional driving over the ground used 5 as a yard by respondent in going to and coming from its bam was in no sense an interference with appellant’s possession.

We now come to what we deem -to be the most difficult question presented by the appeal, namely: Does the evidence show that appellant had color of title to the premises during his occupancy of the same ? Appellant testified that in the fall of 1879 he received a quitclaim deed to the property from James Campbell, through H. Campbell, who, the record shows, was at the time the agent and attorney in fact for James Campbell, with full power to sell and dispose of his real estate, and to execute and acknowledge deeds for the same for him and in his name; that the consideration mentioned in the deed was fifty-five dollars the amount that he paid Campbell for the land; that he saw H. Campbell sign the deed and duly acknowledge it before a notary public; that the notary public signed the same and put his seal thereon; that it was attested by two witnesses; that he failed to have the deed recorded, and that it was destroyed in the fire that burned down his blacksmith shop in 1895; that the notary public before whom the deed was acknowledged by H. Campbell and one of the subscribing witnesses (giving the name of each) are dead; that he read the deed at the time it was delivered to him by H. Campbell, and that it was in the usual form, “in what they called the legal form in those days.”

He further testified that he could not give the exact language of the deed, but did recollect that in substance it read: “James Campbell, first party, by Hughey Campbell attorney in fact ... to E. D. McDonald, quitclaim deed for certain ground from a certain point to the southeast corner, then running southwesterly to a point (referring to map, “Exhibit G”), then running westerly to the mountain— going on to the livery ground on the north, then back to point of beginning. ... At the time there were posts there to.which this instrument referred. One at what is shown on Plat “G” as southeast corner of lot 8 (Lot 81) . . . and the southeast corner of Lot 80 of Smith’s survey on Carr’s Park road, and there was a post at the corner at the junction of Main Bingham Canyon and Carr’s Pork road. The deed referred to these posts and said the land went back to the mountain westerly, and it said the ground was twenty-five feet wide.” On cross-examination the witness stated that he did not remember the language of the calls of his deed, but he did insist that “it (the deed) was the same language used them days by (in) quitclaim deeds. Cannot give the language of the description, only mentioning about them posts and running west so many feet. He (Campbell) showed me the lines. All that I remember is it was the usual form them days, the names of the parties, the description of the property, and they showed me the boundaries, and the posts were there. Q. You cannot give us either in words or substance the description as it appeared' on that paper, can you? A. Not exactly; I could not.” Other witnesses who were familiar with the premises in 1887 and for many years thereafter, testified to the existence of the posts referred to by appellant in his testimony as being mentioned in the deed.

Counsel for respondent insist that this evidence was insufficient to prove the contents of the deed, and that, therefore, appellant wholly failed to show that he held possession and occupied the property in question under claim of title founded upon a written instrument as required by the provisions of the statute hereinbefore mentioned. The trial court evidently took the same view. In this we think the court erred. To hold that the evidence in this case was sufficient to prove the contents of the deed, which, 6 as we have stated, was made and executed nearly thirty years before the evidence was offered would, in most cases, exclude secondary proof of the contents of a lost deed. This same question was before the Supreme Court of Illinois in tbe case of Perry v. Burton, 111 Ill. 138, and tbat court, in tbe course of a well-considered opinion, said:

“A witness testifying to the contents of a lost deed is not expected to be able to repeat it verbatim from memory. Indeed, if he were to do so, that circumstance would, in itself, be so suspicious as to call for an explanation. All that parties, in such eases, can be expected to remember, is that they made a deed, to whom and about what time, for what consideration, whether warranty or quit claim and for what property. To require more would, in most instances, practically amount to an exclusion of oral evidence in the ease of a lost or destroyed deed.” (Italics ours.)

See also, Parks v. Caudle, 58 Tex. 216; Eming v. Diehl, 76 Pa. 374; Scott v. Crouch, 24 Utah, 377, 67 Pac. 2068.

Tbe judgment is reversed with directions to tbe trial court to set aside its findings of fact heretofore made and filed in tbe cause, and to make findings in favor of appellant (defendant), and to enter a decree thereon, in accordance with tbe views herein expressed. Costs to appellant.

STRAUP, O. J., and PRICK, J., concur.