Wilford N. HANSEN and Vada J. Hansen, husband and wife, Plaintiffs and Appellants, v. John J. STEWART and Alice E.K. Stewart, husband and wife, Defendants and Appellees.
No. 19383.
Supreme Court of Utah.
July 28, 1988.
Rehearing Denied Aug. 26, 1988.
James C. Jenkins, Logan, for defendants and appellees.
ZIMMERMAN, Justice:
Wilford and Vada Hansen brought a quiet title action to settle a boundary dispute with John and Alice Stewart. By stipulation, the only issue presented to the jury was the actual location of a certain corner partially defining the boundary separating the adjoining parcels of land. The jury found in favor of the Stewarts. The Hansens unsuccessfully moved for judgment notwithstanding the verdict or a new trial and then appealed. They challenge various aspects of the way in which the case was tried and the denial of their post-trial motions. We affirm.
The Stewarts purchased a parcel of land in Cache County in 1967. In 1969, the Hansens purchased an adjoining parcel and shortly thereafter claimed that the existing fence dividing the parcels actually encroached several feet onto their property. The Hansens brought a quiet title action, and each party caused the land to be surveyed. The parties then stipulated that the only issue for trial was the actual location of “the Northeast Corner of Lot 12, Block 34, Providence Farm Survey,” which served as a common corner for the two parcels as described in their respective chains of title.
The Stewarts demanded a jury trial. During trial, the parties presented conflicting evidence on the issue, including the testimony of expert surveyors, as well as various maps and deeds. The jury found that the corner was actually located as claimed by the Stewarts. The Hansens’ post-trial motions for a judgment notwithstanding the verdict and for a new trial were denied.1
On appeal, the Hansens raise three claims of error: first, that the pivotal question was one of law, not of fact, and, therefore, should have been decided by the court, not the jury; second, that the court should have given the Hansens’ proffered jury instructions; and third, that a judgment notwithstanding the verdict or, alternatively, a new trial should have been granted.
We first consider the Hansens’ claim that the location of the critical corner should not have been decided by the jury. There is a right to a jury trial on all questions of fact in any action to determine the right to possession of real property. Holland v. Wilson, 8 Utah 2d 11, 14-15, 327 P.2d 250, 252 (1958); see
In the present case, the trial court followed this course. We therefore find no error in the trial court‘s submitting to the jury the question of the actual location of the disputed boundary corner.
The Hansens’ second claim is that the trial court erred by rejecting or modifying several jury instructions which they submitted regarding, inter alia, the allocation of burdens of proof and the relevance of the impact that the jury‘s decision might have on neighboring property owners. The Stewarts respond that the issue was not properly preserved below.
In the present case, the record does not contain the Hansens’ proposed instructions, and it does not indicate that an objection was made to the instructions actually given. After this appeal was taken, the Hansens attempted to correct this problem by supplementing the record pursuant to former
The Stewarts refused to stipulate that specific objections regarding the instructions had been made. The Hansens then sought and were granted a hearing by the trial court. The transcript of that hearing shows that the Stewarts again opposed supplementation of the record. At the conclusion of the hearing, the trial judge did not order supplementation.
Under
The Hansens’ final claim is that the evidence was insufficient to support the verdict and that the trial court erred in refusing to grant a new trial or, alternatively, a judgment notwithstanding the verdict (“j.n.o.v.“). See
On appeal, however, when a challenge is made to a trial court‘s denial of a motion for a j.n.o.v. or a new trial and the challenge is based on a claim that there was insufficient evidence to support the verdict, the different standards governing the trial court in passing on these motions become immaterial because of the differing degrees of discretion we accord trial courts in ruling on these motions. A trial court has some discretion in deciding whether or not to grant a new trial, and we reverse only when that discretion is abused. A trial court has no latitude in passing on a motion for a j.n.o.v.; its decision must be correct. Therefore, an insufficiency-of-the-evidence based challenge to a denial of either motion is governed by one standard of review: we reverse only if, viewing the evidence in the light most favorable to the party who prevailed, we conclude that the evidence is insufficient to support the verdict.3 See King, 739 P.2d at 620, 621; Price-Orem Inv. Co., 713 P.2d at 57-58. Because the Hansens’ challenge to the denial of their motions amounts to an attack on the sufficiency of the evidence, they “must marshal all the evidence supporting
Applying the foregoing standard to the present case, we conclude that the Hansens have not made the necessary showing. During the three-day trial, each side supported its position with deeds, maps, plats, and the testimony of several expert surveyors who had independently retraced the original surveys of the disputed parcels. The Hansens did not object to the admission of any of the material evidence. There were conflicts in the evidence, and as the Stewarts point out, their position was supported in part by the testimony of one of the Hansens’ experts. On the record before us, we cannot conclude that the evidence was so slight and insubstantial that it cannot support the verdict for the Stewarts. Therefore, we find no error in the trial court‘s denial of the motions for a new trial or a judgment notwithstanding the verdict.4
We have reviewed the Hansens’ remaining arguments and find them to be without merit. The judgment is affirmed.
HALL, C.J., concurs.
STEWART, J., concurs in the result.
HOWE, Associate Chief Justice (dissenting).
I dissent. I believe that the plaintiffs are entitled to judgment as a matter of law.
As the majority correctly states, the only issue at trial was the location on the ground of the northeast corner of lot 12, block 34, Providence Farm Survey. The defendants’ experts concluded that the corner on the ground was 33 feet south of where the plaintiffs’ expert placed it. As the majority correctly observes, the location of an obliterated corner must be determined by technical rules which have been adopted by the surveying profession and by the courts. This is accomplished by giving priority to certain types of evidence over other types. When that is done, as I will demonstrate below, the corner must be located on the ground as a matter of law at the location contended for by the plaintiffs.
As can be seen from the accompanying sketch, the plaintiffs and the defendants are adjoining landowners in lot 12, block 34, Providence Farm Survey. The plaintiffs’ property is described with reference to the northeast corner of lot 12, while the defendants’ property is described with reference to the northwest corner of lot 12. However, the experts for both parties agreed that the two corners should be directly east and west from each other and that for the purposes of this lawsuit, the location of the northeast corner would also automatically locate the northwest corner. The original monument at the northeast corner (if it ever existed) cannot now be found. The southeast corner of lot 12 is marked by a monument, the location of which is not disputed by either party. They also agree on the location of the northeast corner of lot 17, block 8 and that the two points are 2,733 feet apart as shown on the sketch. But because the length (north-south distance) of lot 12 as laid out by the original surveyor is not known, the location of the northeast corner of lot 12 is not readily apparent.
The major difficulty in this case stems from the fact that the plat of the Providence Farm Survey made by the surveyor
Experts for both parties agreed that when a monument has been obliterated, it should be located by following the footsteps of the original surveyor and restoring it where he placed it even though he may have mistakenly placed it at a wrong point. The defendants based their case on the location of the northeast corner of lot 12 largely on the Martineau plat. Their surveyor, relying on the plat‘s scale of five chains to an inch, scaled the east side of lot 12 along the west side of Sixth East Street as shown on the plat and came up with the distance of 1,320 feet. When he measured 1,320 feet north from the southeast corner of lot 12 (the only known point on the ground in lot 12), he arrived at a point 33 feet south of the Larsen fence corner. The Larsen fence corner is the northeast corner of the Larsen tract as shown on the sketch and is the point where the south line of Eighth South Street and the west line of Sixth East Street coincide. The defendants’ expert also relied on the fact that an early deed (1877) conveyed the “west part of the north part of lot 12” and recited that it was 660 feet by 330 feet and contained five acres. The defendants concluded that the “west part of the north part” meant the west one-half of the north one-half, and since lot 12 is undisputably 660 feet wide (east and west), the north half would have to be 660 feet long, or half of 1,320 feet, to make five acres, which is 217,800 square feet or 660 feet times 330 feet.
On the other hand, the plaintiffs’ case rests primarily on the facts that the descriptions in most of the deeds of all landowners in lot 12, past and present, are tied to (or described with reference to) the northeast corner of lot 12 and that everyone has located that corner on the ground at the Larsen fence corner. Some deeds are double-tied, that is, the descriptions are tied to the northeast corner and also to the southeast corner of lot 12, a known and undisputed point on the ground. These deeds show the two corners to be 1,353 feet apart rather than the 1,320 feet which the Martineau plat scaled. The plaintiffs also relied on the fact that all landowners in lot 12 have possessed their tracts and built fences around them in accordance with the measurements from the Larsen fence corner except the defendants’ south line, which was only partially fenced until this dispute arose. That fence was south of where it would run if measured from the Larsen fence corner.
The jury found for the defendants, locating the northeast corner of lot 12 at a point 33 feet south of the Larsen fence corner. While jury verdicts are not to be lightly overturned, when well-recognized rules contained in surveyors’ manuals and in case law are applied, the verdict cannot stand. These rules give priority to lines of possession maintained by landowners on the ground which have been built with reference to the obliterated corner. In the leading case of Diehl v. Zanger, 39 Mich. 601 (1878), the original stakes and monuments set by the original surveyor, Thomas Campau, were obliterated. Twenty-five years later, a city surveyor, after searching for the original stakes and finding none, proceeded to take measurements according to the original plat and to drive stakes of his own. According to this survey, the practical location of the whole plat was wrong and all lines should have been moved between four and five feet to the
The surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. No rule in real estate law is more inflexible than that monuments control course and distance, a rule that we have frequent occasion to apply in the case of public surveys, where its propriety, justice and necessity are never questioned. But its application in other cases is quite as proper, and quite as necessary to the protection of substantial rights. The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and if those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually to be found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known; Stewart v. Carleton, 31 Mich. 270. As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are....
Diehl v. Zanger, 39 Mich. at 605-06 (emphasis added). More recently, in Wacker v. Price, 70 Ariz. 99, 216 P.2d 707 (1950), the court, after citing with approval and quoting from Diehl v. Zanger, supra, stated:
[S]ince it has always been the rule that courts must resort and be bound by the best evidence available, it follows that the boundaries fixed by the property owners themselves in the absence of the inability of surveyors to definitely fix the monuments from which the original survey was made must control and that the city surveyor nor any other surveyor has any authority to establish new boundaries which must of necessity affect the property rights of all property owners concerned where they cannot establish title by adverse possession.
Wacker v. Price, 70 Ariz. 99, 216 P.2d 707, 711-12 (1950); see also James v. Hitchcock, 309 S.W.2d 909 (Tex.Civ.App.1958); Westgate v. Ohlmacher, 251 Ill. 538, 96 N.E. 518 (1911); Trotter v. Stayton, 41 Or. 117, 68 P. 3 (1902).
Applying the law of the cases1 just discussed to the instant case, it is clear that the best evidence as to where the original monument marking the northeast corner of lot 12 was located is the lines of possession of the various landowners in lot 12 who have occupied their land and built boundary fences with reference to that corner at a time when the original monument was presumably in place. When that is done, the plaintiffs’ contention as to where the monument was located must be upheld. That location is in harmony with all of the lines of possession and boundary fences of the property owners in lot 12 which front on the west side of Sixth East Street. When the plaintiffs’ contention is adopted and followed, no lines of possession will be disturbed except the boundary between the plaintiffs’ and the defendants’ properties which is in dispute in this lawsuit. That boundary, however, has only been partially marked and was obviously incorrect since it ran on a diagonal instead of straight east and west as called for in the defendants’ description. On the other hand, if the defendants’ contention is adopted as to the location of the obliterated monument, all property owners along Sixth East Street must shift south 33 feet. Since this would put boundary lines through existing houses, both parties agree that this is not practical and that instead the description of each property owner would have to be reformed to conform to the defendants’ contention as to the location of the corner. This will mean, however, that the plaintiffs who front on the north boundary of lot 12 will be shorted 33 feet. A 33-foot strip of “no-man‘s-land” will be created at the top
Not only does the best evidence support the plaintiffs’ theory as a matter of law, the defendants’ theory as to the location of the corner is seriously flawed. First, the defendants’ expert placed the northeast corner of block 34 and the northeast corner of lot 12 at points 33 feet apart. The very Martineau plat upon which he relied showed the two corners to coincide. The Martineau plat also showed Eighth South Street to be 66 feet wide, but all the evidence was that it has always been only 33 feet wide. The Martineau plat also showed Eighth South Street running east of Sixth East Street, but everyone agreed that it never has run east of Sixth East Street and that all of the land there is in private possession and ownership. The Martineau plat contains no measurements or distances upon it except for the streets, and the defendants’ contention that the east line of lot 12 should extend only 1,320 feet because it scales that distance on the Martineau plat cannot stand against the practical location on the ground by the various property owners who have occupied and fenced 1,353 feet. If indeed Eighth South Street should contain 66 feet as the Martineau plat shows, the plaintiffs correctly argue that it is equally plausible that the present 33-foot road is the south half of that road and the other 33 feet lie north and not south of that road because block 8 undisputably measures 27 feet longer than 1,320 feet.
In summary, the best evidence obtainable unmistakably places the northeast corner of lot 12 at the point contended for by the plaintiffs. The lines of possession and boundary fences observed and established by the various landowners over a period of many years are silent witnesses of the location of the corner at the Larsen fence corner. These landowners have occupied 1,353 feet along the west side of Sixth East Street. This evidence must prevail over the Martineau plat, which contains no measurements or distances upon it except for Eighth South Street, and all parties agreed that Martineau may have prepared the plat without actually going over the ground. When the Larsen fence corner is adopted as the northeast corner of lot 12, no boundaries will be disturbed except the one in dispute in this case and no reformation of deeds will be required by other property owners in lot 12. No strip of “no-man‘s-land” will be left, and all property owners, including these plaintiffs and defendants, will have all the property their descriptions call for. The mischief pointed out by Justice Cooley in Diehl v. Zanger, supra, will be avoided:
Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true to the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity.
I therefore would reverse the judgment of the trial court and direct judgment to be entered in favor of the plaintiffs.
DURHAM, J., concurs in the dissenting opinion of HOWE, Associate C.J.