*1 thing is a different from the probability certainty without which he substantial James MONROE and M. William the harm in be said to intend cannot Monroe, Evangeline which his act results.”6 Respondents, and to harm which It is this absence of intent or reckless dis- misconduct
renders reckless negligence and regard safety a form and Paula F. Rulon J. HARPER tort.7 not an intentional Appellants. case, the trier of fact present no in acted with could find the defendant acts and their did plaintiff
tent to harm the of Utah. Supreme Court certainty of harm create a substantial not imput intent can be from which a harmful Rather, could determine ed. the fact finder disregard reckless acted in
the defendants which consti safety plaintiff, of the governed by the negligence a form of tutes limitations found year statute of Therefore, 78-12-25(2). and judgment is reversed Court’s on the mer remanded for trial the matter its. prejudice any not is- opinion should subsequent trial. Our
sues of fact at the
that considered
merely
decision
establishes
at this
plaintiff
light
in a
favorable
ex-
hypothesis
stage
proceedings
could consti-
defendant’s conduct
ists that
misconduct or reckless disre-
tute reckless
plaintiff
should have
gard
safety
present
his
given
opportunity
been
theory.
case on such a
CROCKETT, C.J., WILKINS, HALL
f,
player
Torts,
and thus did
p.
constituted recklessness
Comment
§
6. Restatement of
Brown, Wyo.,
year statute of limita-
Danculovich v.
not fall under the one
590. See also
all in their com- assistance often rendered pletion. of 1953, the satisfaction following
In the real estate obligation under plaintiffs’ plain- contract, the lot to Harper conveyed which, deed, the like con- warranty by tiffs of tract, description a the legal contained by Chadwick. prepared lot Subsequently, the died in Harper 1962. Lowe, of & Salt F. Lowe Follett Steven in he owned the remaining parcels of land appellants. for defendants and City, Lake Harper the estate. by were controlled area McDonald, City, Lake for John H. Salt carport a plaintiffs constructed the In respondents. plaintiffs and began using north of their home driveway. road as a the WILKINS, Justice: 1975, defendants, had succeeded who In judg- summary from a appeal Defendants immediately in the lot Harper’s to interest plaintiffs disput- in title to a quieting ment plaintiffs, and by of that owned north property ed of real on the basis strip thereon, a commissioned wished to build boundary by acquiescence. doctrine of survey revealed the survey of lot. (hereafter between the Harper boundary one Edwin B. the of record that feet south of lay average of 17 of undevel- two lots “Harper”) owned several acres markers by line established Chadwick’s Holladay, in the oped in the area known as land years previously. County. approached Plaintiffs Salt Lake purchase parcel offer a with an to Harper quiet to title to brought action Harper one of commissioned property. the parties summary for strip. Both moved the to entire tract LeRoy survey his Chadwick thereof, submitting, support in judgment, it into seven subdividing for of purpose the involved. depositions of individuals various of Depositions submitted in lots. Lake County District of Salt judgment plaintiffs’ summary motion for ground plaintiffs’ motion granted ground in the that stakes were set indicate boundary a undisputed the facts that under at to boundaries points various delineate established, and re- acquiescence was by including the a line by survey, established description their to of formed to be along plaintiffs what claim stakes ap- land. On disputed strip include the boundary line of the the northern the trial court urge defendants that peal, Harper in 1950. they purchased from plaintiffs’ mo- unjustified granting in was property. no longer The stakes are in that those for tion undisputed by par- which remain facts signing of the Immediately following the application of legally justify do not ties plaintiffs and estate contract between real acquiescence. agree, We boundary by began plaintiffs preparation decision. the District Court’s reverse resi- building of their they bought lot Frakes,1 case, recent of Hales During plaintiffs this In the preparation, dence. elements which this Court reiterated between the lengths string stretched proven must be establish alleged northern stakes set They are: inside boundary, planted small orchard visible line marked (1) Occupation up to a serve as (purportedly marked the line so monuments, fences, or definitely by hose bibs line), installed several buildings and orchard, laid a the area to service the permit access line as bound- gravel roadway (2) acquiescence area to During ary portion the lot. the western years (3) long period for a adjoining landowners.2
(4) by foregoing one of We address dispositive. which is only, elements that, the record with from It is clear *3 here, there is no respect definitely by monu- line marked “visible fences, The ments, buildings.” or disputed strip here has trees within boundary. land, supposed but not driveway parallels disputed Finally, mark it. boundary but does not no fence there is Therefore without by plaintiffs. claimed line, can be no visible there judgment of Accordingly, the remanded and the matter is reversed mo- on defendant’s entry judgment. No costs 'summary tion for awarded.
HALL and Justice, CROCKETT, and MAU- Chief GHAN, (dissenting). Justice
It is view that there is sufficient basis our the record to the trial court’s judgment. PICKETT, Plaintiff
Jess W. Appellant, UTILITIES, PACIFIC CALIFORNIA County Corporation, California Iron, political subdivision of the State Respondents.
Supreme Court of Utah.
Pickett, pro W. se.
Jess Id., also, Willilams Fuoco v. at 559. See (Fuoco I), 15 Utah 2d