Olsen v. Swapp

¶1(dissenting).

¶2I dissent. A prior decision of this court, Hall v. North Ogden City,1 dealt with a fact situation very similar to the case before us. That case sets forth a rule which should be the guide in arriving at a decision here. The rule enunciated is as follows:

Since the lands in controversy have been in the peaceable, notorious and open possession of the plaintiffs and their predecessors for many years, in order to prevail, the town must show some right or title to these lands under proceedings of the Federal Townsite Act of 1867, or a dedication of such lands to the public for the use of streets by the owners thereof under such Act. So our first problem is to determine who became the owner of such lands through the Townsite Act.

¶3The plaintiff’s chain of title dates back to the year 1872 when the property was conveyed by the Probate Judge of Bountiful Townsite to William Walton. The property was acquired in 1898 by plaintiff’s father who built a home upon the property and thereafter owned and occupied it as a residence for more than 47 years. Plaintiff was born while her parents occupied the home, and she continued to live there until her marriage. The record discloses that for a period of approximately 70 years the disputed strip was in possession of the plaintiff and her predecessors. During that occupancy a fence was built along the southern boundary of the property and upon the disputed strip of land. A hedge grew along the fence and a cement walk also occupied a portion of the strip. A gate occupied a part of the disputed land and remnants of the gateposts still exists there.

¶4When the plaintiff filed her suit seeking injunctive relief, the defendants answered denying generally that the plaintiff was entitled to the relief sought, neither Bountiful City nor the other defendants filed a counterclaim nor asked for affirmative relief. Nevertheless, the court below went beyond the issues raised by the pleadings and the pretrial order and granted judgment in favor of Bountiful City- as follows :

That Bountiful City is the owner of each and every portion of 3rd North Street, Bountiful City, which is described as follows:

Commencing at the Southeast corner of Block 53, Plat .“A”, Bountiful Town-*1236site, which said Southeast corner is North 24.75 feet and West 49.5 feet from a survey monument located at the center of the intersection of 3rd North Street and Main Street, Bountiful City; running thence West along the South Line of Block 53 396 feet; thence South 49.50 feet to the North line of Block 44, Plate “A”, Bountiful Townsite; thence East along the North line of said Block 44 to a point 24.75 feet South and 49.50 feet West of said survey monument; thence North 49.50 feet to the place of beginning.

¶5Defendant Bountiful City claims title to the disputed strip under and by virtue of a copy of a plat which hangs on the wall of the county recorder’s office. The copy of the plat in the form of a blueprint was unrecorded and unauthenticated, and the only claim of its being genuine stems from the fact that it is hanging on a wall in the recorder’s office.

¶6At the outset Bountiful Townsite resulted from a grant by Congress under the law known as “The Townsite Act” and laws adopted by the Territorial Legislature of Utah, which provided regulations for the disposal of townsite lands. The rules and regulations are contained in Sections 1166 and 1178 of Compiled Laws of Utah, 1876. Section 1175 of that Act provides in part as follows:

. the corporate authorities in cases where the lands shall have been entered by them, and the judge of probate, in cases where the lands shall have been entered by him, shall cause the same to be surveyed and laid out into suitable blocks and lots, and shall reserve such portions as may be deemed necessary for public squares, school houses or hospital lots, and shall cause all necessary streets, roads, lanes and alleys to be laid out through the same, a plot of which, properly certified, shall be recorded in the recorder’s office of the county in which the same may be situated; .

¶7Insofar as I have been able to determine those provisions have not been changed or altered. A plat to become official and entitled to be relied on should have met the standard provided for in the act. The holding of the majority that a reference to a picture on the wall of the courthouse was sufficient to establish title and ownership in the City enunciates a strange and new concept in that area of the law pertaining to land titles.

¶8Bountiful City should not be permitted to take the property in question without compensation.