*1
133
the de-
evidence
sustain
cept make an award Dean, R. H. and Hazel SESSIONS June Respondents. arbitrary and unreasonable. Defendants and capricious, duty to examine the It is our record and to affirm the decision unless Supreme Court Utah. a matter of law that we can 1970. conclusion on the of “available only the wrong work” was conclusion could be drawn * *3 the facts. review,
In instant claimant does not
dispute the facts as found but asserts findings cer-
the Referee omitted from facts, undisputed
tain material which would finding
sustain a avail- that claimant was completely
able for work. This assertion
disregards jurisdiction the limited of this in
court A action. review of the rec- substantial, competent
'ord reveals evidence Henriod, findings opin- sustain the J., decision of concurred and filed
Appeals Review; Referee and the Board ion. such a this court not set aside though
the decision might even we
reached a different result.4 decision of the Board is Review
affirmed. No costs awarded. J., TUCKETT, ELLETT, JJ., concur.
.HENRIOD
Wiesley,
p.
Comm.,
v.
Gocke
at
249 of 18 Utah
2d
of Review of Industrial
1 Utah
2d,
p.
388, 390,
(1954) ;
46 of 420 P.2d.
P.2d 914
Team-
sters, Chauffeurs,
Orange
etc.,
4. Members of IronWorkers Union of Provo
Trans-
Comm.,
portation Co.,
45, 48, 50,
v. Industrial
2d
(1943);
(1956).
years prior to the commencement of this litigation. appellants complain about finding. that á admit retaining wall constructed *2 was, say they there the fence 1963 where remained proof no the fence that (cid:127) Hayes, Pugsley, Philip Pugsley of until 1962.
Watlciss, Cowley, Lake Campbell & Salt permitted be trial court would
City, plaintiffs-appellants. for be fence as erected would find that the to Dansie, Don Ellett & E. Hammill of there was some place unless in the same defendants-respond- Hammill, Murray, for that it had been moved. proof to show ents. ac just of their own Fences do not move cord, thought that the if ELLETT, changed be had been of the fence location Justice: they pre should have tween 1948 and 1962 in 1969 matter was commenced This that effect. some evidence to sented dispute between a involves a plaintiffs appeal from neighbors. The plaintiffs who It was one the himself defendants, ruling in the favor of the re- tore fence and erected down the rul- support the that the evidence will not thought taining testified that he wall. He has reply brief the trial court. No line. He property he erected it on the also this by been filed the prop- purchased that he testified when simply a trial court court does reverse him erty the seller out to in 1961 not an- party does prevailing because the that' he were and where the boundaries failure the appeal, nevertheless swer property frontage to his had a full 40-foot argument, an oral file a or make to brief him. as shown to concurring in his said as Callister City, Logan in the opinion case of Jones neighbor- in the seems that lots It “* ** 169, 428 P.2d 19 Utah 2d feet from all about two hood were least, in- complete to [I]ndicates, survey. present-day' disposition of as this court’s difference to neighbor on the side and their ”* * * appeal. their differ- settled respondents from per- litigation and as to ences avoid The trial court found a they which use the land erected mit acquiescence in that a fence was thought prior to concurring opinion owned the new sur- In his Wolfe vey. stated: appellants brought this action to Under the facts circumstances of
quiet and to title to some two feet of land positive where there is evi- compel respondents to remove dence establishment of the fence garage many years ago which built plus continuing acquiescence there- (sometime prior after, 1948). willing agree I am that “ac- pears been stated: ped established further The trial established that the “ * * * judge in deciding property asserting fence, It long therefore line has not is not the correct acquiescence, should be this matter line, estop- but ap- heretofore statute of limitations quiescence forming fenses erty. as short founded to the as period provided seven long by title for actions our years, real thus of time” by prop- con- de- boundary line, proper in view of their In the King Fronk, later case of own conduct.” Utah 2d Mr. JuStide *3 Henriod in writing for majority of the question, length as to the court said: boundary time by acquies down, Boiled it seems to us that cence es- to be established has never been tablishment definitely acquiescence fixed. The Ekberg case of Bates, P.2d 205, predicated points the existence of out that usually each case must be deter visibly monumented line persisting for mined on its own facts. It was there stat years upwards, least 20 shown ed: specifically or circumstantially, in order to meet or requirements exceed the In the instant case as we acquiring rights prescription.
out period above there was a of actual years (the for more than 7 parade of cases to date period pos- for adverse limitations equity calls on its flex muscles acquired session)-. before pull years below title and under all the circumstances involving rarest of cases shown herein that was a sufficient boundary by acquiescence. length of time to the line so establish visible, marked, There was a precluded from are. it is not the line. true line between the land of the years herein for defendants fully warranted judge was
the trial Utah, Plaintiff The STATE could not holding that the Respondent, line. that' CARLSEN, Craig Defendant costs is affirmed with judgment Appellant. Supreme Court of Utah. J., and CALLISTER TUCKETT, JJ., concur. HENRIOD, : (concurring) Justice and circum-
I direct concur long period of reflect a
stantial evidence
time, beyond prescriptive period, where monumentally
everyone acquiesced in a adjoining prop- separating
visible However, opinion, if the main
erties. Ekberg calling atten-
citing Bates author, Mr. language
tion to of its certain Wade, of Mr. and the concurrence Wolfe, reference
Chief with statute, seven-year possession adverse occupancy pro- seven-year
implies that the do anything to with therein has
vision boundary by acquiescence,
doctrine of I think disagree. bound to
would be simply were statute such
references
observations, suggestions, since *4 justifiably found
period of that case exceeded
the trial court it period. think
20-year prescriptive gratuitous
only confusing to refer to those wholly unauthoritative observations.