Mawson v. J. G. Investment Co.

464 P.2d 595, 23 Utah 2d 437, 1970 Utah LEXIS 706

• Court: Utah Supreme Court
• Decided: January 29, 1970
• Docket: 11658
• Status: Published

Opinions

HENRIOD, Justice:

Appeal from a judgment for defendant in an action wherein plaintiff sought removal of a fence erected by defendant on the East boundary of a parcel deeded and used as a roadway. Affirmed, with costs to defendant.

The findings of the trial court, supported by the record, show that plaintiff acquired three lots alongside the roadway, together with Ys of the latter, all of which had been deeded to plaintiff’s predecessor, then to plaintiff, the 1/5 interest “to be used as a roadway.” This roadway abutted a number of lots to the North and South, and obviously the conveyances of fractional interests thereof to abutting lot owners was intended to be used and was used only for ingress and egress to such lots. They were conveyances of roadway rights, not fee rights, sort of in the nature of dominant estates to which the fee, including underground rights, — in minerals, for example, . — was servient. Plaintiff’s right to use the roadway was for such purpose of ingress to and egress from any property which he owned along the roadway. Hence his claim in this action that because he had acquired land to the East and beyond the described roadway, he could use such easement for ingress to and egress from such land to which the road in no way, conveyance-wise or otherwise, was appurtenant, must fail.

Plaintiffs’ claim that his conveyance of Ys of the parcel to be used as a roadway, was a conveyance of the fee, is not supported by the record.

CROCKETT, C. J., and CALLISTER, and TUCKETT, JJ„ concur.