Hatch v. Adams

329 P.2d 285, 8 Utah 2d 82, 1958 Utah LEXIS 186

• Court: Utah Supreme Court
• Decided: August 25, 1958
• Docket: 8644
• Status: Published

Opinions

WORTHEN, Justice.

We granted a rehearing in this case to permit counsel to fully present their contentions particularly as to evidence offered, and by stipulation received and later stricken by the court. The reader is referred to this case as heretofore reported.¹ In addition a more detailed reference to the testimony offered and stricken will be made.

In our former opinion we observed:

“The trial court upon stipulation of counsel permitted parol evidence to be offered with the reservation by defendants of the right to move to strike. At the conclusion of the taking of testimony the court struck the oral testimony offered by plaintiffs, holding that the agreement was not ambiguous and that parol evidence was not permissible.”

A further review of the record discloses that defendants limited their motion to strike to evidence other than that which tended to show that the water represented by the 7i/fj shares was appurtenant.

It is defendant’s position, with which the trial court agreed, that the evidence proffered by plaintiffs went beyond the issue just stated, seeking to prove by conversations that by the use of the term “appurtenant” it was meant to include the 7\?2 shares of Provo Reservoir water, notwithstanding our statute which declares that when water rights are represented by shares of stock in a corporation said water shall not be deemed to be appurtenant. Plaintiff did not allege mutual mistake or seek to reform the contract to include said stock.

The situation presented to the trial court ■can be demonstrated as follows:

A conveys Blackacre together with the house, barn and other buildings appurtenant thereto. Upon dispute it is proper to prove that a garage, a shed or any other building actually built upon and attached to the land in the usual sense is appurtenant to and part of the realty and passed with the conveyance.

On the other hand, the grantee cannot vary the term used by seeking to prove that by the use of the word “appurtenant” the parties actually intended to include an automobile kept in the garage, or other property as would not in law and in fact be deemed to come within the meaning of the term appurtenant.

There is some confusion in the record as to just what the motion made by the defendants was and what the ruling of the court was. However, the reasonable deduction to be made from the record is that the defendants did not move to strike, and the trial court did not strike evidence pertaining to the issue of appurtenancy.

We must assume that the trial court considered all evidence offered to show that the water represented by the 7^2 shares was appurtenant, and excluded from his consideration only evidence which had the effect of varying the terms of the written agreement. The court resolved the issues in favor of the defendant. The ruling of the trial court is sustained by substantial evidence.

We stated in our former opinion which opinion we reaffirm:

“Plaintiff, in our opinion, failed to establish by clear and convincing evidence that the water in question was appurtenant. * * * ”

As indicated in our former opinion, it is quite impossible to reconcile plaintiffs’ position that it was understood that the stock was to pass to plaintiffs, with the admission contained in the letter from Mrs. Hatch, one of the plaintiffs, to the defendant, Mr. Adams.

Judgment affirmed. Costs to defendants.

McDONOUGH, C. J., and CROCKETT, J., concur.

1 . 7 Utah 2d 73, 318 P.2d 633, 634.