Smith v. DeNiro

HENRIOD, Justice:

Appeal from a quiet title judgment based on a boundary by acquiescence. Reversed, with no costs awarded.

This suit questions ownership of a strip of land, called the Gordon Mill Race, situate between the parties’ properties which was used for over 50 years to transport water, but which use was abandoned in 1966. Both parties claim title on the theory mentioned, but the evidence reflects no common grantor, no payment of taxes by anyone, and no acquiescence by anyone owning the disputed property, save some disinterested cows that at times have browsed the mill race, subject of this suit, whose interests were but pastoral, not proprietary. Salt Lake City used the mill race, and it is not shown whether as fee owner or by easement, or otherwise. The mill race appears to be a no-man’s land, whose owner is no party to this litigation. This hiatus, which cannot be reconciled by the record, is evidenced by the fact that title'insurers were unwilling to cover it with title insurance. The theory of this case offends against the elementary principle that without contiguity there can be no boundary by acquiescence.¹

Someone will have to find the record owner or sue the whole world to establish ownership in the subject property, a waterway used as such since almost the Crusades. We would abuse our prerogative were we to assume the role of Lloyds of London in this most troublesome case. Some years ago we had to remand a boundary case for similar reasons of uncertainty.²

It is difficult to understand the position taken by the dissent which urges a superior title by virtue of possession. That is not the theory of this case. The theory and judgment here are based on boundary by acquiescence, as is abundantly clear by the findings of fact upon which the judgment was based. The dissent is based on a so-called memorandum decision informally signed a week earlier. It is clear from this record that the trial court abandoned that memorandum because the matter of possession was not clear in the record and both parties conceded that no taxes had been paid by anyone, both of which circumstances were the gravamen of the memorandum abandoned by the trial court. It is not for this court to adopt the theoi’y set forth therein and depart from the theory of boundary by acquiescence adopted officially by the trial court based on its finding of such boundary agreement. I have no quarrel with the proposition expounded in the dissent that as between two persons, neither of whom has title, the one in possession can prevail over one not in possession. But that is not the case here, as a casual perusal of the transcript in this case clearly will reflect.

CALLISTER, C. J., and TUCKETT, J., concur.

1 . Fuoco v. Williams, 18 Utah 2d 282, 421 P.2d 944 (1966).

2 . Dragos v. Russell, 1 Utah 2d 385, 267 P.2d 775 (1954).