99 P. 150 | Utah | 1909
This is an action upon a covenant of warranty. The appellant is a public corporation, and as such held, occupied, used, and sold the premises hereinafter referred to. The evidence tended to establish that the premises in question for many years had been used for public school purposes, but that for ten or fifteen years immediately preceding the transactions involved in this case they had been abandoned for such purpose for the reason that they were more suitable for other purposes, and were held for sale by appellant, and were finally sold by it, as will more fully appear hereafter. The additional fácts necessary to a full understanding of the points raised by appellant are fairly reflected in the findings of the court, as follows: That on the 1st day of July, 1905, the appellant, for a valuable consideration, sold, and by warranty deed conveyed to one Ered A. Rosenfeld, certain particularly described real estate in Salt Lake City; that said deed was in statutory form, and in which the
Counsel for appellant have limited their argument to two questions: (1) That the finding of adverse possession is not supported by the evidence; and (2) that, although it be held that the finding is so supported, the doctrine of acquiring title by adverse possession or by prescription is not applicable to the facts in this case-. . It is therefore asserted that the appellant is not liable to respondent as for a breach of the covenants of warranty. As to the first proposition, it is asserted that the evidence discloses that the officers of the corporation which was in possession of the portion of the ground did not claim any right Or title to the premises on behalf of such corporation, that the possession was a mere passive one, and that such a possession was not sufficient to enable said corporation to acquire title by adverse possession or prescription. ^It may be conceded that a mere passive possession, without intending to claim the property, is insufficient, regardless of the length of time such a possession continues, or however open, notorious, or exclusive it may have been. This is so because such a
The claim that the parties finally settled for an amount less than the actual value of the strip of land, even if conceded, is not necessarily controlling. This fact, if it be a fact, was merely a circumstance to be considered by the court in connection with all the other facts in the case. The corporation could relinquish its claim for any amount which was satisfactory to it, regardless of the true value of the land, and regardless of the character of its title. The fact that the corporation claimed a right in and to property which it would not relinquish except for a valuable consideration was one of the material elements in the.ease. The other and controlling element was whether the claim of the corporation to the premises in question was of such a character that it could, under the- law, successfully resist the claims of all others to the strip of ground of which it was in actual possession. In view of the fact that this
With regard to the second contention, it is asserted that, although it be conceded that both the time during which and the character of the possession were sufficient' when applied to real property generally, nevertheless the doctrine of adverse possession has no application because the property
“No person shall be allowed to acquire any right or title in or to any lands held by any town or city, or the corporate authorities thereof, designated for public use as streets, lanes, avenues, alleys, parks, public squares, or for other purposes, by adverse possession thereof for any length of time whatsoever.”
Under such circumstances, it would seem that, if the property had been owned by a city, the statute of limitations would apply, because the character of the property was not of the class which is excepted by the section above quoted. If therefore the statute of limitations would apply as against a town or city, it must necessarily follow that it also applies as against appellant as a public corporation. While the title to the property was held by appellant for the benefit of the public, the property, nevertheless, was not devoted to a public use in the sense thát it was held in a governmental capacity. Property held in such a capacity may not be sold and conveyed by the body holding the title, but must be devoted to the uses and purposes for which it is intended. This, however; is not the .case with regard to property held for sale, or which is not devoted to any special public use. Such property 'may be sold and conveyed by the corporation at any time as it is not held in a governmental capacity. If therefore it were held to be the law in this jurisdiction (a question we .do not decide) that the statute of limitations cannot be invoked with regard to real property which is held by appellant as a public corporation, while such property is actually used for public school purposes, it nevertheless cannot be held, under the facts in this case, that the statute cannot be invoked as against appellant with regard to the property in question, because the property was not, and for many years had not been, used for such purposes, but was held merely for sale when an opportunity to sell arose, and when the amount offered therefor was satisfactory to appellant.
In view of our statutes upon the subject, and for the reasons above stated, the authorities cited by counsel for appellant have no application, and we need not further consider them.