Respondent brought this action to enjoin the appellants from removing a certain fence and from cutting down certain shade trees which, it is alleged, are on respondent’s property, and which appellants will remove and cut down unless restrained. For the purposes of this decision we shall not refer to the appellant the James Kennedy Construction Company, since that company claims no rights as against respondent.
Respondent, in his complaint, in substance alleged that he is, and for many years immediately preceding the commencement of the action was, the owner of five by ten rods in Lot 2, Block 29, Plat A, Salt Lake City Survey; that said property abuts on Sixth South Street, and the south boundary line thereof is marked by a substantial picket fence which has been “in its present location . . . for more than thirty years last past;” that about one and one-half feet north of said fence there is a row of six shade trees which greatly add to the value of said property, all of which is used for residential purposes; that, unless restrained, appellant will remove said picket fence and cut down said trees, and will construct a permanent cement sidewalk along the south side of said property where said fence and trees now stand; that, by removing said fence and cutting down said trees, respondent will sustain irreparable injury and damage; that appellant claims “some right, title, or interest in or to said property or some part thereof,” which claim, it is alleged, is “unlawful and void.”
Upon the foregoing allegations, respondent prayed judgment that appellant be required to set forth the nature of its claim and that it be “enjoined from cutting down or interfering with said trees and said fence, . . . and that plaintiff (respondent) be adjudged to be the owner of said premises, and that such other and further order in the premises as is just be made.” Appellant, in answer to the complaint, set up> various defenses. It denied respondent’s ownership of the property described in the complaint, and denied that the south side thereof was marked by a picket
Upon substantially tbe foregoing averments, appellant prayed judgment tbat tbe title to tbe strip of ground to which reference has been made as being within Sixth South Street be adjudged to be in appellant, and tbat respondent’s complaint be dismissed. Bespondent filed a reply to tbe foregoing answer in which be set up facts which be claimed constitute an estoppel, and also pleaded the statute of limitations, and claimed title to tbe strip of ground aforesaid by adverse possession.
Upon tbe foregoing issues, a preliminary bearing was bad to determine whether a temporary injunction should issue pending tbe bearing upon tbe merits. After tbe preliminary bearing, tbe district court issued ai temporary injunction pending tbe action. Some time thereafter, by consent of tbe parties, tbe ease was submitted to tbe court upon tbe evidence adduced at tbe preliminary bearing, and tbe court, upon such evidence, made findings of fact; tbe material portions of which are as follows:
“(2) Tbat plaintiff is tbe owner of and in possession of tbe following real property located in Salt Lake City, Utah: Commencing at a point two and one-balf rods west of tbe southeast comer of Lot 2, Block 29, Plat A, Salt Lake City Survey; thence west five rods; thence north ten rods; thence east five rods; thence south ten rods to beginning.
“(3) Tbat tbe south side of said property where said property adjoins said Sixth South Street is marked by a substantial picket fence, and said fence has been in its present location .and has marked tbe south boundary of said property for more than thirty years last past, and located on tbe north side of said fence on said land owned by plaintiff, and about one and one-balf feet from said fence, is a row of poplar*93 trees, about six in number, planted and used for shade trees, •and valuable to plaintiff and to said premises and to said residence located thereon.
“(4) That said defendants have marked said trees to "be cut down, and are intending to cut them down, and also :are intending to cut down said fence, and will cut down •said trees and said fence at once unless restrained by order •of court, and are intending to, and will, unless restrained, lay a cemient sidewalk across the south five or six feet of the •entire' south side of said premises.
“(5) That the value of said trees or the damage done by “the destruction of said fence and the taking of said property for said sidewalk, in case it is so taken, cannot be estimated or determined, and damages will not compensate, and plaintiff has no adequate remedy at law.
“(6) The court further finds that no part of said propr •erty above described or referred to is a part of the public streets of Salt Lake City, and; that defendants, and neither ■of them, have any right, title, or interest therein, or to any part thereof.”
Upon these findings the court also made conclusions of law declaring the respondent to be the owner of the property described in the findings aforesaid; that appellant had no interest therein) and had no right to enter upon the same, ■and that a decree should be entered, enjoining appellant from ■entering upon said property and from removing said fence •and from cutting down said trees, and from interfering in •any way with said premises. A decree enjoining appellant as aforesaid was accordingly entered, from which this appeal is prosecuted.
By referring to the issues presented by the pleadings and the findings as the same appear in" the foregoing statement, it is apparent that the findings do net respond to the issues. All that the court in effect found is that the title to the five hy ten rods described in his complaint is in respondent; that the south side of the tract is marked by a picket fence which has been there for more than thirty years; that a little to the north of said fence are certain shade trees
“That, when the title to said lands shall be held by the corporate authorities of any town or city, all lands designated for public use by such corporate authorities as- streets, lanes, avenues, alleys, parks, common public grounds, shall vest in, and be held by, the corporate authorities, and shall not he claimed adversely hy any person or persons luhatso-ever/J (Italics ours.) (Comp. Law’s 1876, p. 383.)
The title to all the public streets and grounds is therefore in Salt Lake City, the appellant. Nor is it disputed that the street in question was in fact platted before the land in question was patented to the mayor of Salt Lake City in trust and for the use of those who occupied or claimed particular parts of the platted, portions of said city. The act, therefore, by its terms prohibited any person from claiming any portion of any platted street by reason of any fact or condition that arose or existed prior to or at the time the patent to the land was issued. Any right, therefore, if any there be, to any portion of any street, must rest upon some claim or right which was initiated after the patent was issued as aforesaid. Now, under the evidence in this case, it seems to us several matters are established beyond all question. For example, the evidence is undisputed that the blocks as originally surveyed and platted were intended to
In the case at bar appellant proved that in establishing the boundaries of Block 29, in which the property in question is located, the city engineer attempted to do so partly from monuments which were taken as some of the monuments of the original survey, and which were found in the intersections of streets some distance from the block in question, 'and partly from the fences and improvements found on the surface of the ground in said block; that in doing so it was established that in allotting the block in question its full 660 feet, and in giving respondent his full five by ten rods and allowing 132 feet for Sixth South Street, respond-onas fence was something over six feet in the street on the •east, and something over seven feet therein on the west line of his property, and that the strip in question is in excess of the ten rods to which respondent is entitled under the ■calls in his title papers. While respondent’s counsel in their brief and argument dispute appellant’s claims in this regard, yet appellant’s evidence, as already stated, is clearly to that effect, and is not met by any positive evidence to the •contrary. The actual location of the south boundary line of the block in question was therefore one of the principal issues in the case. If the boundary line is at the point where respondent’s fence is standing, then there can be no question concerning respondent’s right to an injunction. If, however, the boundary line is where it is claimed to be by appellant, namely, about seven feet north of respondent’s fence, then respondent must establish his right to the strip of ground which would then be in Sixth South Street upon other grounds. The court made no findings with respect
From anything that is said above, we do not wish to be understood as holding that, as a matter of fact, the original south boundary line of Block 29 may not be where respondent’s fence line is located, but what we hold is that the court has not so found. It may also be that, if the boundary is not so far south as the fence, the city may nevertheless have regarded and; treated said fence as marking the boundary line between respondent’s property and the north boundary of Sixth South Street for such a length of time or under such circumstances as will prevent it from disputing said boundary line at this late date. As the findings now stand, however, a legal conclusion to the effect just stated cannot be based thereon. It may also be that, if it be found that the original or true south boundary line of Block 29 is not as far south as respondent’s fence now is, he nevertheless may be entitled to the strip1 of ground for other reasons, as, for example, under his pleas of adverse possession or estopi-pel. But whether respondent may be entitled thereto for the reasons last stated or not, is not before us, and upon that phase of the case we express no opinion. All that we now hold is that, as the findings now stand, they do not respond to the issues, nor, for the reasons stated, do they support the judgment entered in this case. Nor is the finding that, in case said fence is removed and said trees cut down, the damages resulting to respondent’s property cannot be estimated, supported by any evidence.
In conclusion we desire to state that in view that this case was finally decided upon the evidence adduced at the preliminary hearing for a temporary injunction, and that the issues were apparently not fully tried out, and because of the very incomplete state of the findings when compared with the issues presented by the pleadings, it might be unfair to both parties if we either attempted to make findings or directed what they should be.
In furtherance of justice, therefore, and in fairness to the parties and to the trial court, we have concluded to reverse the judgment and to remand the cause for a new trial. Such is the order. Appellant to recover costs on appeal.