Marazzani v. United States Fuel Co.

This is an action brought by the plaintiff, Bartola Marazzani, against the defendant, United States Fuel Company, a corporation, to restrain it from obstructing a highway across defendant's land, and to require the defendant to remove obstructions placed across the highway, and to enjoin the defendant from interfering with the free and open use of said highway across defendant's land, and also for damages alleged to have been suffered by the plaintiff on account of the obstruction of said highway.

The principal issue raised by the pleadings of the respective parties and to be determined is whether or not a public road existed across defendant's lands at the time and place when and where the same was obstructed. The plaintiff contends that such a public highway did exist, while the defendant denies its existence. A trial was had to the court sitting without a jury, and the court found the issues in favor of defendant's contentions and against those of the plaintiff, and rendered judgment accordingly, from which judgment plaintiff prosecutes this appeal.

The evidence, without contradiction, shows that under date of January 18, 1912, the plaintiff received a patent from the United States government to the following described tracts of land in Carbon county, state of Utah:

"The west half of the southwest quarter and the southeast quarter of the southwest quarter of section 26, and the northeast quarter of the northwest quarter of section 35, in township 15, south of range 8, east of the Salt Lake Meridian, Utah, containing 160 acres."

The evidence also shows without contradiction that Bernard R. McDonald and Mark P. Braffet, the predecessors in title and interest of the defendant herein, received a conveyance of the south one-half of section 27, township 15 south, range 8 east, Salt Lake Meridian, in Carbon county, Utah, from the state of Utah, and that the plaintiff and defendant, respectively, are and were, at the time of the commission of the acts complained of, the owners of these respective tracts of land.

During the year 1914 the plaintiff erected a store and other buildings on his land about 600 or 700 feet north and slightly to the east of the southwest corner of section 26, in said township and range. The lands of both the plaintiff and defendant are located near the mouth of the Miller Creek Canyon. Just prior to the construction of the plaintiff's store coal mines were opened to the west of plaintiff's land, and people settled in the immediate vicinity of said coal mines until at the time of the commission of the acts complained of several hundred people were residing in these coal camps within a distance of 2 or 3 miles from the plaintiff's store building.

The uncontradicted evidence also shows that during the early settlement of the communities of Cleveland, Huntington, and Price a road was used by the settlers up Miller Creek Canyon for the purpose of hauling lumber, logs, sawdust, and, in later years, coal, and also for hauling supplies to ranches and sheep herds which were up in said canyon, and that such road was used continuously for more than 30 years prior to the commission of the acts complained of, and the evidence of witnesses for both plaintiff and defendant is to the effect that only one road led up into the canyon prior to the opening of the coal mines and settlement of the adjacent territory in about the year 1910. At the same time the coal mines were opened up and the mining camps settled a railroad was constructed into the coal camps, and the construction of the railroad and the building of homes of necessity interfered with the wagon road that had theretofore gone up into Miller Creek Canyon.

At the time of the trial and the commission of the acts complained of the plaintiff was renting his store and other buildings to tenants who relied in part upon customers from east and west Hiawatha, some 2 or 3 miles up the canyon, for trade. The old road was the most direct route to these mining camps. A road 3,500 feet longer than the old road claimed by the plaintiff, from plaintiff's store building to west Hiawatha, was in use generally by the public at the time of the obstruction of the road in controversy. It was being compelled to use the longer and more circuitous road, and the inconvenience and consequent loss in the rental value of plaintiff's property constitutes the basis of plaintiff's complaint.

The exact location of this wagon road is in dispute. It is conceded by both parties, and all of the evidence shows, that the road in use prior to the construction of any railroads ran generally in an easterly, or southeasterly, and westerly, or northwesterly, direction. The plaintiff contends that the road ran immediately south of his store building, which is known as the Black Hawk Mercantile Company's store, and thence up the canyon in a westerly direction, while the defendant contends that the old road was some 700 or 800 feet south of plaintiff's store, and ran in a northwesterly direction up the canyon.

If the course of the old road was located as contended for by the defendant, it would be somewhere between 600 and 800 feet south of the point where the obstruction was placed; whereas, if the course of the old road was located as contended for by the plaintiff, the obstruction complained of would be on a detour used since the fall of 1914 and about 200 feet north of the old road; but in either event the construction was on land the title to which was in the defendant.

Some question is raised in the briefs of respective counsel as to whether or not the placing of the obstruction on the detour, which had been used since 1914, and ran north some 200 or 300 feet from what plaintiff claims to be the old road, would be such a deviation from the old road claimed by the plaintiff as to entitle the defendant to be within its rights in closing the same. Suffice it to say that the trial court, as is clearly shown by its findings of fact, did not consider this phase of the case, but found the facts upon the main issue, that is, the location of the old road, and which findings were in favor of defendant's contention. In the writer's opinion, it will not be necessary to consider the matter of the detour in arriving at a proper determination of this case, and, in any event, it would appear that the defendant claims the right to obstruct the old road, as claimed by plaintiff, at places other than the detour.

There seems to be no dispute, and the court found, that the defendant corporation placed guards and obstructions across the road, claimed by the plaintiff to be a public highway, in the winter of 1919, and that it claims the right to continue such obstruction, not only at the detour, but on the other parts of what plaintiff claims to be the old road. The question to be determined is, Did it have such a right? If the trial court's findings of fact as to the location of the old road are to be sustained, there is no serious or tenable contention that the judgment could be otherwise than as rendered.

Numerous witnesses testified in this case. The plaintiff called 25 and the defendant 14. Not all of these witnesses testified as to the location of the road in controversy up Miller Creek Canyon, but the greater number of them did testify as to some fact connected with the location of the old road. To set out in detail the testimony of all, or the greater number of these witnesses would be to extend this opinion to needless length, and would serve no useful purpose. The witnesses who testified as to the location of the old road, on the part of plaintiff, with the exception of the witness S.R. Gordon, gave evidence tending to show the location of the road, as contended for by plaintiff, and many of them were quite positive that plaintiff's contention was correct. Defendant's witnesses, as well as S.R. Gordon, who was called by plaintiff, gave evidence tending to support defendant's contention, and many of them were equally positive that the old road was located as contended for by defendant. In a case such as this it is not at all unexpected to find witnesses honestly mistaken as to the location of an old road running over an open, unsettled, and, for the most part, unfenced flat covered with sage brush. This is particularly so after the lapse of years and the construction of a railroad that interferes with the usual course of travel. All of the witnesses, however, seem to agree that prior to the interference of the course of the old road by the construction of a railroad there was only one road up the canyon, and that the travel for the most part followed the course of this road. The road seems to have been quite well traveled, and a number of the witnesses located portions of the old road with respect to the topography of the country. It was not until in recent years that any material changes were made in the road. At the conclusion of the evidence the trial judge, upon stipulation of counsel for the respective parties, went over the lands concerning which evidence was offered. That the trial judge had the right to apply his observations thus made to the evidence offered seems to be well settled whenever the matter has been before the courts, and, in reason, the law could not well be otherwise. It seems to the writer that this is a case that comes squarely and peculiarly within the oft-expressed opinions of this court that the findings of fact made by the trial judge in an equity case will not be disturbed, unless it is made to appear that such facts so found are against the preponderance of the evidence. In this case there is a direct and irreconcilable conflict in the evidence. The trial judge not only had the opportunity of observing the witnesses and their demeanor while on the witness stand, but he had the additional and not less important opportunity of comparing the facts testified to by the various witnesses with an inspection of many of the facts concerning which evidence was offered, as shown upon the ground. A number of witnesses testified that deep ruts were worn in the soil and rocks where the old road was located. While it is true that some time had elapsed since the old road was interfered with, it is reasonable to suppose that indisputable evidence of the course of the old road which has been used for more than 30 years still existed upon the ground, and that the trial judge saw and considered the same in arriving at his conclusions. The writer is clearly of the opinion that the finding of the trial court, as to the location of the course of the old road, is amply supported by the evidence, and that the same should remain as found.

From what has been said it follows that plaintiff's assignment of error that the location of the old road, as found by the trial court, is not supported by sufficient evidence and is contrary to the preponderance of the evidence should be decided against plaintiff's contention.

The trial was had upon the issue of the location of the old road, and for the most part the arguments of counsel in their respective briefs are confined to this question. The trial court found, however, that the road claimed by the plaintiff was constructed by the defendant and was first traveled in the fall of 1913, and the detour in the fall of 1914, and that they were in general use by the public from the date when first traveled up to December 15, 1919, when it was effectually barricaded and obstructed by the defendant. Some question, however, is raised by the briefs of counsel as to whether or not the acts of the defendant in constructing and permitting the use of the road, as found by the trial court, did not constitute a dedication. Counsel for the plaintiff assume that the defendant was responsible for the closing of the old road, regardless of where it was located, and, having closed the old road and opened a new one, it should not be permitted to now contend that the new road as found by the trial court to have been constructed and used between the fall of 1913 and the winter of 1919 was not dedicated as a public road. The difficulty with this contention is that there is absolutely no evidence that the defendant had anything to do with the obstruction of any road, except in the barricading of the road in December, 1919. The evidence all shows, and the court found, that the Utah Railway Company, in 1913, obstructed the old road, and there is nothing in the evidence tending to show that the defendant has any relation to the Utah Railway Company. In the writer's opinion there is not sufficient evidence to support a finding that the new 1 road was dedicated by the defendant as a public highway, either under the common law or under the provisions of section 2801, Comp. Laws Utah, 1917. It may further be observed that, conceding a road once existed over defendant's land, no court, so far as the writer is aware, has gone so far as to hold that, when a road is obstructed by a person other than the owner, such owner is under any obligation to provide a new road across his land some 600 to 800 feet distant from the old road.

The plaintiff, having failed in his contention as to the location of the old road and his right to use the road in question, disposes of the case, and it is not necessary to consider plaintiff's other assignment of errors.

For the reasons stated, the judgment of the trial court should be, and the same is affirmed. Defendant to recover costs.

WEBER, C.J., and CHERRY, J., concur.

THURMAN, J., being disqualified, did not participate herein.