83 P. 566 | Utah | 1905
1. Plaintiff, Crane, is the owner of a parcel of land 25 feet by 165 feet fronting on Main street in Salt Lake City. Defendant, Judge, is the owner of a parcel of land 29.5 feet by 165 feet adjoining on the south thereof. There are substantial business buildings on the east portion of the parcels, on Crane’s called the “Crane Building,” on Judge’s called the “Karrick Building,” both fronting on Main Street; on the west portion of the parcels there is on each a one-story building.^ The north wall of the Karrick building, owned by Judge, at its east end, projects on the Crane Land .35 feet and at the west end .54 feet. The north wall of the one-story building on the Judge land projects on the Crane land .21 feet at the east end of the building, and 1.4 feet at the west end. Crane brought an action against Judge to quiet title to the parcel owned by him,'described as being 25 feet by 165 feet. Judge filed a general denial and a cross-complaint, alleging her ownership of the 29.5 feet by 165 feet; and that there is a conflict between the record description of the north boundary of her land and the north wall of the Karrick building, on the east .35 feet, on the west .67 feet, but alleging that she held such area in conflict, and acquired title thereto by adverse possession; that theye was an agreement between the parties in writing whereby the north wall of the Karrick building, continued in its own direction westerly to the west boundary of the lot, was agreed upon as the true boundary line between said properties; that the lasting and permanent improvements placed on said strip in conflict cannot be removed without irreparable injury, and that plaintiff stood by and saw the Karrick building built upon the lines aforesaid without objection; and praying to have the title to said strip in conflict quieted in her. There was a general denial to the cross-complaint, except an admission that said area in conflict between defendant’s record title and said north, wall was not
2. While counsel for appellant say in their brief the appeal presents but one question, “where is the true boundary line of the properties of the plaintiff and the defendant?” and that “this is the only question in the case,” the claim is made that the north wall of the Karrick building is such line, only because as stated by them, “for the reasons, ad
The statute provides:
“In no case shall adverse possession be considered established under the provisions of any section of this Code, unless it shall be shown that the land has been occupied and claimed for a period of seven years continuously, and that the party or persons, their predecessors and grantors, have paid all taxes which have been levied and assessed upon such land according to law.” (Section 2866, Rev. St. 1898.)
Nothing can be claimed by way of adverse possession because of the erection of the one-story building, for it was built less than seven years prior to the commencement of the action. The stipulation and the evidence show not only that the defendant did not pay the taxes on the strip of ground in question, but also shows affirmatively that the plaintiff did so. While it may seem a harsh rule to apply the requirement of the statute to pay the taxes to this kind of a case, the statute in most positive terms makes such requirement.
Whatever presumption, if any, could bave been indulged, that tbe taxes on tbe strip in question were paid by the defendant because of her having paid the taxes on tbe parcel of land owned by her, has been destroyed by tbe effect of tbe stipulation that she did not pay tbe taxes on tbe strip, but that tbe plaintiff' did; that is, if one who pays taxes on a parcel of land described as 29.5 feet, but which in reality is 29.85 feet, as it is inclosed and claimed, may be said to bave made payment of taxes on tbe land as inclosed, and that tbe description is but identification of tbe parcel, such assertion can no longer be successfully made when -he admits that be paid tbe taxes on only 29.5 feet, and that another paid tbe taxes on tbe remaining .35 feet, or on a parcel which included it. However, on tbe theory that tbe land as inclosed or occupied by tbe wall was tbe parcel as described in defendant’s deed, tbe question of adverse possession becomes of no importance in tbe case.
There remains, then, only tbe other question, was tbe writing heretofore referred to an agreement between tbe parties that tbe wall should be considered tbe boundary line, not only as to the length of tbe building, but also as to tbe extension of such line, in its own direction westerly to tbe west or rear end of tbe premises? We think this must be answered in tbe negative. Prom the reading of tbe instrument it is apparent that tbe parties were bargaining of and concerning, and contracting with respect to, tbe subject-matter of granting an easement whereby tbe plaintiff was privileged to use tbe wall for building purposes, and that they did not contract with respect to or bargain of and concerning any boundary, or that tbe wall should be treated or considered as such. What was said with respect to tbe location of tbe wall pertained to its description and identity, not to its fixing or es
Entertaining the views we do upon the matters presented, it necessarily follows that the judgment of the court below must be affirmed, with costs. It is so ordered.