101 P. 586 | Utah | 1909
Appellant, a UtaH corporation, brought this action to quiet the title to the following parcel of land, of which it claimed to be the owner in fee, namely: “Beginning at the southeast corner of lot 8, block 107, plat '0,’ Salt Lake City survey, and running thence north 330 feet to the northeast corner of said lot 8, thence west 204 feet, thence in a southeasterly direction parallel to and 33 feet distant from the center line of plaintiff’s railroad track as now constructed thereon, 345-| feet to the south boundary of said lot 8, thence east 104 feet to the place of beginning.” The land above described contains the major portion of lot 8, in block 107, of the original plat of Salt Lake City. A strip four rods in width off the westerly side of the parcel above described extending in a southeasterly and northwesterly direction ever since 1883 has been, and now is, used by appellant, as a right of way upon which is located its railroad track and telegraph poles. West of this four-rod strip, and in the southwest corner of lot 8, there also remained a triangular piece of land which is a part of lot 8. The respondent, in its .answer, disclaimed all right, title, or interest in this four-rod strip, but claimed title to all of the parcel above described not included within said strip, and asked that the title thereto be quieted in it. The question, therefoi’e, is, which one of the parties is the owner of the parcel in controversy?’
Mrs. Huntington died about three years after her husband. After Mrs. Huntington’s death, Julia Huntington Mellon, the daughter of Dimick B. Huntington and one of the
Upon the claim of adverse possession by appellant, the undisputed evidence is to the effect that in 1883 appellant’s'predecessor in title constructed the railroad between Salt Lake City and Ogden, and laid the track on the four-rod strip heretofore mentioned, and erected its telegraph poles about thirty-three feet east of the center of the strip; that in 1885 or 1886 a fence was constructed along each side of the railroad track along the margin of the four-rod strip, so that a right of way was fenced in four rods wide; that in erecting the fence, when it reached the north boundary of lot 8, the fence was extendéd along such boundary to the northeast corner of said lot, thence along the east boundary line thereof to the southeast corner of said lot. Southwest from this corner there was a cattle-guard from which a wing fence was joined to the fence ending at the southeast
Upon substantially the foregoing facts the court entered judgment in favor of respondent, quieting the title of all of the land described in appellant’s complaint to it except the four-rod strip; hence this appeal. Appellant contends that
Referring to tbe paper title, it will be observed that appellant never obtained complete title from any one. While it is true that under our statutes tbe title to real property •upon tbe death of an ancestor vests in bis heirs, yet Such title vests conditionally only, and is subject to
There ’are circumstances present in this case, however, which, to our minds, clearly distinguish it from the cases cited above, and from all others in which the doctrine invoked hy counsel has been applied. It must be remembered that after the conveyance by the Huntington heirs the land was sold to pay the debts of the Huntington estate. One of the grantors in the deed by which a part of lot 8 was conveyed was the administratrix of the Huntington estate. She was thus perfectly familiar with what had been sold. Moreover, the matter was brought to the attention of -the probate court, who was not bound to except any part that had been conveyed hy the Huntington heirs from the sale, any more than the administratrix was bound to do so. All of lot 8 could have been sold. When the administratrix made the exception, which was allowed by the court, is it not reasonable to assume that if it had been intended to exclude all from the administratrix’s sale which had been conveyed by the Huntington heirs the former deed would have been referred to, to which deed the' administratrix was a
We are of the opinion, therefore, that the appellant did not obtain paper title to the parcel in dispute, and hence the court did not err in its conclusions upon this point.
Did the appellant acquire title to the parcel in question by adverse possession? We shall assume that, with the exception of one statutory requirement, the time, character, and manner of appellant’s possession was sufficient to establish title by adverse possession. Section 2866, Comp'. Laws 1907, which has been in force in this state since 1888 (section 3137, Comp. Laws 1888), provides as follows:
“In no case shall adverse possession he considered established under the provisions of any section of this Code, unless it shall he shown that the land has been occupied and claimed for the period of seven years continuously, and that the party or persons, their predecessors, and grantors have paid all taxes which have been levied and assessed upon such land nccording to law.”
Appellant claims that it has complied with the statute and has paid .all of the taxes assessed against the parcel in question ever since it took possession of it in 1884. As we have seen, up to 1896, no mention of this parcel was made by appellant in listing, its property with the Territorial Board of Equalization for assessment. Whether it was or was not assessed to appellant up' to that time is therefore a matter of mere conjecture. From and after 18.96 it was listed by appellant with the State Board of Equalization as a separate parcel of land, and not as being an integral part of the right of way proper. Thus, after that it cannot be claimed that it was assessed by merely referring to appellant’s right of way as such. If, therefore, it had been assessed merely as a right of way, and had not also been assessed by the local assessor as lot 8, there might be some ground for claiming that appellant had paid all of the taxes upon this property, including the parcel in question. But the difficulty is that appellant did not have title to this parcel of ground, and therefore it cannot be said that it was its property. During all of the time since 1873, when Dimick B. Huntington became the owner of lot 8, of -which the parcel in question is ai part, said lot has been' treated as a separate and distinct lot for the purposes of taxation. During all of the time it has been assessed as such, and taxes have been levied and paid thereon by the owners thereof, including respondent.
This doctrine is based upon the theory that the state can require taxes to be paid but once each year, and when paid the claim for taxes is discharged, and a subsequent or second payment is a mere voluntary payment and of no legal effect. This doctrine, however, cannot be applied to the facts in this case. Under the undisputed evidence, either the State Board of Equalization had jurisdiction to malee the assessment for taxation of the property in question, or the county assessor had it. The right- to assess the same property could not exist in both at the same time. We think the power to assess lot 8 was vested in the county assessor, and that the State Board of Equalization had no- jurisdiction over any part of lot 8. except the strip taken and occupied by the railroad company as a right of way. If the railroad company desires to claim title by adverse possession to property other than such as has been used and occupied distinctively for railroad purpose’s, it must prove that it has paid all the taxes 'that were assessed by the local authorities, or show that such assessment was made without authority, or that the taxes levied against the property were void for some other reason. We think no one would seriously contend that an individual might take possession of any portion of the right of way or
Nor is the contention that appellant has acquired title by prescription tenable. It is true that this court has repeatedly held that a right to an easement may be acquired by a continuous use for a period of twenty years. This
We are of the opinion, therefore, that the judgment of the court is right, and it accordingly is affirmed, with costs to respondent.