Bonner v. Sudbury

417 P.2d 646, 18 Utah 2d 140, 1966 Utah LEXIS 412

• Court: Utah Supreme Court
• Decided: July 28, 1966
• Docket: 10298
• Status: Published

Opinions

CROCKETT, Justice:

Plaintiff sued to prevent the defendants from using the dead end street, called McClelland Street, which runs north from 1041 East Sixth South in Salt Lake City. After a trial the District Court found that it had been used as a public street for more than the ten years and hence under Sec. 27-12-89, U.C.A.1953, is deemed to have been dedicated to public use and gave judgment for the defendants.¹ Plaintiff appeals. .

The street, or perhaps more properly-called an alley, is only ten feet wide. From the point at 1041 East Sixth South it runs north 165 feet, then makes a right angle to the west for 47 feet, and thence again north 150 feet, where it dead ends. Defendants Sudbury and Davis own homes facing on Sixth South on opposite sides of this street and use it to get to the rear of their homes. Plaintiff owns the fee title to the street in that area. He and others who own property to the rear, and who own easements therein, use it as a means of access to their homes.

Plaintiff challenges the finding that the street in question is a public street as not being supported by the evidence. In considering that problem it is our duty to analyze the evidence and whatever reasonable inferences may be drawn therefrom in the light most favorable to the findings and judgment.²

These facts emerge as tending to do so: the official records of the city show the area in dispute to have been platted as a public, street since at least 1915; the City has paved it; and has placed and maintained a. regular public street sign at its entrance from Sixth South. It is not shown on the plat nor the assessor’s roll as belonging to the plaintiff, and the records show that he has not paid any taxes on it for at least 25 years. A number of witnesses who lived there stated that they have over a period of years seen postmen, milk trucks, delivery trucks, children going to and from school, and various others using the street. Although there has never been much traffic there due to the fact that it is a narrow dead end alley, the fair inference from the evidence is that it has been used by anyone who so desired; and that there has been no substantial interference therewith for at least 25 years and in fact “since the memory of man runneth not to the contrary.”

In addition to the evidence just recited, there are direct statements in the testimony relating to the public use of the street.

Mr. Guy Kidder, who lived across the street:

Q. From your house or from your knowledge in the neighborhood, have you had occasion to see children or the general public using McClelland Street?

A. Yes.

* * * * * '!-

The defendant, George W. Sudbury:

Q.. Now, have you had occasion to see the general public using McClelland Street?

A. On many occasions. (Emphasis' added.)

i¡i íjí " í¡< %

We do not' burden this opinion with more extensive quotation of the testimony. However, in fairness it should be stated that upon further examination, the witnesses just referred to particularized as to the classes of persons just mentioned above who used the street. Yet, in our judgment it can be said advisedly that the trial court could reasonably regard their further answers as not contradictory of, but rather as consistent with their statements that the public used it. The testimony of one credible witness, if believed by the court or jury, is sufficient upon which to base a finding of fact. In the face' of the testimony just quoted above, and especially considered in conjunction with the facts recited herein, we are at a loss to understand how it can reasonably be said that there is no substantial evidence to support the findings and judgment.

In connection with this review we deem it appropriate to note our agreement that the dedication of one’s property to a public use should not be regarded lightly and that certain principles should be adhered ■ to. The presumption is in favor of the property owner; and the burden of establishing public use for the required period of time is on those claiming it.³ The-mere fact that members of the public may use a private driveway or alley without interference will not necessarily establish it as a public way; nor will the fact that it was shown on the public records to be a public street; nor even that it had been paved and sign-posted as a public street by the City. We have no doubt that each of those various facts, if considered separately, could be rationalized as not proving a public street. But all of the facts should be considered together; and where there is dispute about whether a public use is established, determination of the facts and resolution of the issue is primarily the responsibility of the trial court.⁴ Resolution of such an issue cannot rest entirely upon what the owner says was his intent.⁵ In case controversy arises he can 'always avow that his intent was in accord with his interest.

When the various favorable aspects of the evidence are so considered in the aggregate, with the purpose in mind of sustaining the findings and judgment, the situation disclosed impresses us as being about as substantial in support of them.as ever will be found where there is any controversy at all.

In conformity with the time-honored rules concerning the prerogatives of the trial court and the solidarity of the judgment, it is affirmed.⁶

McDonough and tuckett, jj., concur.

1 . That statute provides that “A highway shall be deemed to have been dedicated and abandoned to the use of the public when it has boon continuously used as a public thoroughfare for a period of ten years.”

2 . Staley v. Grant, 2 Utah 2d 421, 276 P.2d 489.

3 - See Harkness v. Woodmansee, 7 Utah 227, 26 P. 291.

4 . See Thompson, Real Property, VÓ1. 2, : § 525.

5 . We so state notwithstanding' statement in Morris v. Blunt, et al., 49 Utah 243, 161 P. 1127.

6 . See Charlton v. Hackett, 11 Utah 2d 389, 360 P.2d 176.