*1 al., et Plaintiffs Alan C. THOMSON Appellants,
George al., et Defendants J. CONDAS Respondents.
No. 12458.
Supreme Court of Utah. 28, 1972.
Jan. Pace,
Lorin City, N. Salt Lake pellants.
Joseph Novak, City, Salt Lake for re- spondents.
HENRIOD, Justice: Appeal judgment from a no cause of court, action in a case tried to the complaint’s main thrust was to estab- “public thoroughfare” by lish a more than continuous use provisions under the of Title 27- 12-89, Utah Code Annotated 1953. Af- respondents. firmed with costs to preliminary significant As a matter pages to note that about 450 and other evidence were utilized in an ef- prove disprove “public fort to that the thoroughfare” lay lay claimed or did not on an abandoned railroad called the bed Road,” “Quarry formerly spur used as a haul rock from a off the railroad’s page main At end of this 450 line. transcript, plaintiffs conceded that there no merit to the asserted in their claim complaint whereupon before 1929 really another material and include matters involved. leave to amend asked doing this, “Lower called the the evidence adverted to road which was dirt purpose con- Road,” ostensibly accurately briefs of both sides for the seem to be Although supported by record, although forming' the evidence. some procedural perhaps as to is related out is some doubt *2 context. was request under granting of such propriety plaintiffs say Here’s what are the facts: case, this nonetheless of the circumstances In quarry there was a stone from It no makes was allowed. the amendment which stone was hauled su- rail. The difference, however. perintendent Snyder’s married sis- witness ter, resulting frequent wagon visits via a is from the record that obvious quarry buildings to the where incident assembling their on plaintiffs, brief the quarry situated, were including the only to their appeal, recited facts favorable superintendent’s house, bunkhouse, stable claims, some of which interests and own shop. and blacksmith On the men- visits with out of context appear to have been tioned the lower road was used. Between say the facts the record. Plaintiffs whole time, IS and 25 men worked there at the with they controverted recite not were two Chinese an- including cooks. Later on court, trial the which operated other man the There Moreover, they disagree. we believe no or obstruction road. The fence of the up clear and con not measure to that do quarry closed down after which one Garn proof uni quantum quality of vincing bunkhouse, egress lived in the with no ex- versally the establishment demanded for road, super- cept a brother of public thoroughfare taking of an or wife, to bought pigs used intendent’s property.1 other’s its at the garbage consume away attempt them owner and drove on This will review writer to witness, being asked) volun- (without parties briefs of the facts One stand, leaving the witness teered as he was urges, with the belief that it be a each will many as 200 that one time were as fair accurate recount their factual at or (without when claims, parenthetically observing saying workers — road was long). facts for The lower prerogative the arbiter how be- egress ingress judicial system to believe disbe in our bent,2— (upper) and 1920. In 1929 a controversial tween 1915 lieve exist, the lower but Quarry Road did the case here as to much as seems be Hackett, Combe, 2. 2d 11 Utah Charlton 1. Petersen v. (1961). necessarily there. The railroad moved out evidence that road was supposed 1924 and The lower road was between 1926. have reached such results. was used one Condas hand, they say On other defendants egress ingress and on there was disagree plaintiffs’ facts, statement of repair road and there was bunkhouse and that, urging in violation of the rule on seen the time. M said he had shed at One review, pellate recited have hunting, persons go squirrel down “in here facts for most more favorable fishing things H said like that.” One themselves, losers, luxury re- road, cars he used the and saw some served to them3 and in violation of he saw parked along the road. said One S placed upon point onus them used at times. built the road Condas Findings the court did not conform gate a stock the west fence with to believable evidence.4 Defendants property comply 1929 to with homestead out facts to the judgment favorable which placed requirements. In 1934 a chain was they may do, say properly upper Quarry Road which across the correct, are presumptively and not shown to At until 1958 or 1959. maintained plaintiffs, be in accepted error re- —also back. time the chain was moved quirements on review. Here are facts *3 been plaintiff had then claims there (Since urged by all of which accurate- upper road travel on the no restriction ly by testimony are shown evidence and (for record, in 1967 until defendants barricaded it much of and which is found in Findings the written refer court: plaintiffs fail to which contention substantiation). any part of the record for complaint only upper Quar- or and use the lower Between 1929 now ry Road was one end issue. At the upper declined and use of case, plaintiffs road has of the were allowed to timely Sheep objection, both clude the road over has increased. travel lower road wag- whose existence was established as a roads. on terminating road 1894 to at from 1898 the facts From abstracted above during only which time use its say con- plaintiffs the trial court had by Snyder’s was witness family, and there an clude that was uncontroverted those connected with the There by public for general continuous use was no as to its from evidence existence than 10 and that facts re- more In 1915 ex- 1898 to 1915. the lower road convincing up quarry, beyond. lated such clear isted but not constitute and Co., Hackett, 389, 4. 3. v. Alta Ditch & Charlton v. 11 Utah 2d 360 Park Canal (1961). it the hill found was there from washed around 1932 to was out “Keep “kept sign it and that spring winter snows Out” was run-off and it, hung periodically large little and that gutted with trenches.” pretty well it, boulder blocked and only lessees the existence the road Evidence of employees and their when its exist- and defendants unclear from 1915 to predecessors their were use allowed to generally ence was established. When pro- County the road. At no time (as did the family into area or went Condas repair upper State ever maintain the homesteaders) in 1925 or spective road, subject attempting of the The they bogged to use the cause of action. down prior found that further to 1931 use alongside road A flooded the creek of the road was intermit- limited to road was full of half the time and the private tent use lessees potholes, of the road was difficult and use employers, by their hunt- marshy an along the occasional because was wet by prede- er or fisherman and defendants’ gate a hoard was line. In 1929 fence sheep operations cessors for from 1928 by Condas placed across the lower by sheep and thereafter the latter in replaced later with a wire which steel was operations immediately fence, until farmer which maintained was South, and that neither road used and for time it was obstructing traffic any boy during period Snyder pigs time padlocked. drove was public thoroughfare, as a that occasion. on the road on one With at all private road- exception occa- times both were used as as to ways. hunters, fishermen, squirrel sioned like, any user evidence is no ample evi We believe there was last 1898 to The rock dence, sup admissible, competent and that quarry about and the from the moved ported (in the trial court event we which only sheep road was used after presumption must that of its affirm) to 1931 the road operations. From 1928 duly supported, correctness was predecessors in defendants’ the find did not sheep they operations, and received
their supported by evidence, ings were not year. in that The homestead their must, plaintiffs’ to recite chose *4 concededly not Quarry Road upper, its contention evidence most favorable to until before a road two favor to the of other evidence exclusion patent, also the Condas the and permissa able which is to review, any in chain appellate concede that from 1934 to 1959 a ble on they relied upon road, event the evidence place in across the
Jgg quarry company that the convincing operated the stranger to clear and busi- awas this, approximately twenty like ness employing in a em- demanded case evidence ployees prior we so hold. quarry when the was taken anoth- over Combe, Petersen v.
We believe operator. er In addition to work- the men and the (1968) 2d ing quarry, superin- the there were the therein, leading particularly the cited cases tendent and his wife and two Chinese Blunt, case of Morris v. 49 Utah working boarding cooks house. dispositive of (1916), are very recent also the case stant case. See The road question was used to service Bohman, Harding 26 Utah quarry workmen to travel (1971), this court. to and from quarry it. also Visitors “public case on a This is a bottomed used the road. One witness testified that thoroughfare” thesis and is not to be con- quarry year he worked during fused either with an “easement” or a 1915. After the railroad re- tracks were “right way” moved, case. quarry stone was hauled from the
by the use of trucks. The road and the CALLISTER, J.,C. TUCKETT by side, railroad were side after CROCKETT, JJ-, concur. removal of the tracks a roadbed was used for vehicular travel for
ELLETT, (dissenting) : Justice higher reason that was sub- I dissent. ject boggy condition of old road in wet weather. quarry company quitclaim A obtained a deed to a November Much testimony was directed the facts operation by company was in 23, 1931, case after date October prior superintendent to 1894 when the inter- predecessor to a was issued girl married a lived near- who my opinion est defendants. by. marriage superintend- Prior to the only testimony patent is that relevant after ent and workmen from the with aban- question legal which bears on their musical instruments come would that Sum- That shows donment. frequent home of the bride-to-be on oc- County B road receives Class mit still casions. money on money on the receives old .4 of .8 a mile on the road and
It is difficult to find witnesses who have along mile the old railroad bed. knowledge years ago. of occurrences 80 However, proposi- the brother This of the bride testified case is concerned above, question and it is without tion of whether road was established
134 1116, 1, 25, R.S.U.1898, is- prior to the defendants’ land Ch. Title Sec. across was, provided: it If it is patent thereto. of suance extensively it was used important not how highways All once must established so used at all afterwards it or whether was highways continue to be until abandoned legally abandoned.1 it not long as was county of order the board of commis- Statutes, 2477, 43 S. Revised U. Section county of sioners in which are reads: 932, after I860 in force U.S.C.A. situated, law, § operation by judg- of of way the construction right for of “The competent ment of a of jurisdic- (cid:127) lands, reserved not public highways over 27-12-90, tion; . . . U.C.A. [Sec. uses, hereby granted.” public for 1953, Replacement practically Vol. has language.] identical required no time limit There was high- a establishing for Revised Statutes appears It thus ten for more than terri- depend upon way, and so it would years prior to the issuance determine wheth- or state statutes torial old road was used to service established not a road had been er or upon The burden be would defendants stat- was no public lands.2 There across five-year period prior to to show that for a establishment regarding ute in Utah 1911 it was after road was established 1886, 12 Chapter prior to when (highways worked, neither travelled nor or that it had enacted, reading: legally been The defendants abandoned. highway neither, be shall 2. . . . A did think the is still so I Sec. aban- as taken dedicated deemed and in existence. public when use of the
doned use the road was The fact that uninterrupted- continuously and has been adjoining railroad a the old over thoroughfare ly upon effect the existence bed has no substance, same period years. ten [In my opinion did In U.C.A.1953, Replace- 27-12-89, as Sec. complaint at all. need to amend their ment Vol. Condas, 3.] ux. 76 case of Sullivan et v.
[*] [*] [*] [*] [*] [*] P. 954, (1930), said: used for worked or 6. A road not Sec. change made of to be a also is ceases period of five the road. Whatever by Chapter the course of
highway. [Eliminated slight and did change was made of Utah Laws 1911.] Williams, Cal.App.2d N.M. Stephens, 2. Wilson v. 1. Ball v. Stephens, (1939) ; foot Ball supra. note materially change or affect of its location highway or
course of the continuity change
nor break
travel or use. [Citation omitted.]
However, are plaintiffs did amend and *6 opinion a decree deter- my entitled to is a
mining that the lower road
highway. judgment of the
I would reverse the for a and remand the matter
lower court
determination of the boundaries road, together with the assessment any, may damages, if
of such of defendants’ reason
have sustained
terference, right to use any, if their award costs to
the road. I would
pellants. al., et Plaintiffs
Ronald BRADSHAW Appellants, CITY, municipal corporation,
BEAVER al., Respondents. et Defendants
No. 12524.
Supreme Court of Utah.
Jan.