Petersen v. Combe ( 1968 )

CROCKETT, Chief Justice

(dissenting).

The main opinion’s commendably candid exposition of the facts makes it unnecessary for me to say anything more about them. My disagreement with my colleagues is in the conclusion to be drawn therefrom. To avoid misunderstanding, I desire to voice my agreement with the following ideas relating to the solidarity of land titles:

The ownership of property as evidenced by duly recorded written documents should be granted a high degree of sanctity and respect. Such ownership should neither be taken nor eroded away by stealth or inadvertence in the use or encroachment thereon by others.

In order for others to acquire rights therein, the adverse use must be done in such a way that the owner knows or should know the right to use his property is being asserted against him. The proof of these facts must be by clear and convincing evidence.

Nevertheless, it is the prerogative of the trial judge to determine whether the tests :above stated have been met; and this includes whether the evidence is , clear and convincing. See Greener v. Greener, 116 Utah 571, 212 P.2d 194; Child v. Child, 8 Utah 2d 261, 332 P.2d 981. The fact that a witness may have an interest may dis? count his testimony if so regarded by. the judge, but it does not discredit his testb mony ipso facto. See Chugg v. Chugg, 9 Utah 2d 256, 342 P.2d 875; Page v. Fed. Security Ins. Co., 8 Utah 2d 226, 332 P.2d 666.

When the facts of this case are surveyed in the light of the traditional rules of review : favorable to the findings of the trial court; and if when so viewed, there is a sufficient basis in the evidence upon which reasonable minds might conclude as he did, the judgment should not be overturned, I am not persuaded that it should be done here.