*1 INVESTMENT UNIVERSAL CORPORA
TION, Appellant, Plaintiff and Kings Ilene
Ronald L. KINGSBURY and wife,
bury, his for herself and as Trus
tee, Defendants and Worsley, Snow Palmer of
Joseph J. Christensen, Lake Salt appellant. Schoenhals, E. L. respondents. fendants and TUCKETT, Justice: appeal deals This claim parties who between the land' parcels of- contiguous ownership of in the dis- were rivets one which City. After a trial court, on the line called for Barrett’s deed and judgment entered trict quiet- the other complaint one was on the fence A line. missing survey disclosed that the south defendants ing title in the plain- property according line of the Barrett property. From *2 in through portion the call the deed ran seeking a a reversal. tiff is here of the Barrett home. here con- property we are parcels The of year the the old In fence between upon Easi front Sixth cerned with each properties replaced by the two was a new Third South between Second Street plaintiff is City. The in upon Streets one. The new fence was built the realty fronting one, of record title owner same line the and Barrett and 27% along and the defendants said street cooperated replace- feet Van Horbeck in its a of title owners of are record ment. The record indicates Barrett that front- plaintiff’s immediately of the continuously south occupied proper- and used the in along The land ing ty fence, the street. feet north of the and that Hor- Van 53% approxi- dispute proceedings is in these occupancy beck and his in successors occu- long, feet mately feet and 120.62 pied immediately four wide property and used the north approximately the comprises which south of the fence. The home south of the the four feet the land embraced within continuously of occupied fence was until 1959 defendants’ record title. building when it was razed and an office parking with a lot established was thereon. Barrett, the Richard One appear It would that from the 1937 until interest, predecessor prop- purchased in the arewe here concerned with arose erty upon in in the home lived predeces- neither the defendants their years. property the for about 31 In No- any sors interest made claim to owner- conveyed land to vember Barrett the ship of the land north the fence. While In the 1937 a Mr. Van Horbeck Barrett testified that he knew that his deed immediately property owned south of the upon called feet fronting Sixth 27% property the Barrett and lived in the home Street, East he he also testified that as- upon property. At which was then the sumed he owned the north that time there was an old fence which fence line. old, years was estimated to be 50 which ran east and homes. appraisal west between After a careful approximately The fence located opinion four evidence we are of the that a clearly boundary by feet south of the line in Barrett’s acquiescence described is deed. In the sidewalk east of shown the old fence line and the trial the.Barrett ELLETT, (dissenting). court should have found.1 facts so Justice bring requirements this case it within the at time in the I do not contend that some boundary by acqui necessary to establish a may an past have been distant there not visible, open, escence: the line must be to the effect acquiescence between owners monuments, by buildings, marked fences or boundary now that the line'was as recognized long a be, may that However years.2 term It the defendants’ con is right to any has had this tention that the location of the true bound predecessor His ary unknown, was not uncertain or in dis land, feet of bought Barrett 27% pute, support and that a do not facts area, of all lots width which by acquiescence that conclusion land went at the time that his and knew only had been fact which established. surveyor’s in the side- only button support seem that conclusion would marked the true walk which testimony aware of Barrett that he was property. specified that the call in the deed to him plaintiff he sold did tes frontage Barrett he sold to feet. When 27% testi- always more. Barrett however, considered feet and no tify, that he the 27% positively boundary. The and stated fied in this case the fence be his south *3 any part of the supporting its he had never had the burden of defendant strip un puted no or of land. that there contention certainty the true and any acquiescence If there par to owners was known boundary between as the true fence line property.3 cels of disputed title to the properties, who owned in someone re- below is the court decision of 1937, con- it was not since prior to remanded case is and the versed to this veyed Barrett to to title quieting a decree directions to enter evidence court heard trial to costs. is entitled Appellant follow- fact the found case and
ing: any dispute between and There was HENRIOD J., and CALLISTER, C. or of defendants in interest predecessors CROCKETT, JJ., concur. 269, Judge, 26, P. 87 31 Utah Pitman, 2. v. 2d 305 Holmes Utah 6 v. 1.Provonsha Carroll, Utah 1009. 486; Motzkus v. P.2d Milliner, Brown v. supra, Carroll, note 1. 3. Motzkus v. oo eo
predecessors in interest uncertainty
There was no as the true line,
location and Mr.
Barrett well that said fence was knew
between 4.1 and S feet South line as de- or
fined rivet the sidewalk. principles
Under established law
findings and the trial court
should be affirmed is no evi- unless there case, I
dence sustain them.1 In this findings I
think the are sustained and so judgment made.
would affirm the CENTERS, INC., SKAGGS DRUG a Dela- Waldo, Jones, McDonough, Holbrook & corporation, Plaintiffs ware Waldo, Lunt, H. R. Bruce C. Jr. Jack Appellants, Fox, Strong, Hafen of Poelman City, plaintiffs-appellants. al., E. Raedel ASHLEY et Defendants Linebaugh, Kent B. defendant-respondent Key Drug. Rexall Faust, E. Salt Lake James fendant-respondent Holladay Warren’s *4 Mangum,
Max K. defendant-respondent Success Haekett, Noble, 1. Charlton De Vas v. 13 Utah 2d