a witness for defendant, testified that he resided in Bingham Canyon from 1873 until the fall of 1882; that he owned and operated the livery stable mentioned; that neither he nor any one connected with the livery stable during that time claimed any title to or interest in the premises in controversy or any part thereof, and that defendant was the reputed owner of the property. The record also shows that T. R. Jones, one of the parties who succeeded to the rights conferred by the Valentine patent, and who was one of the parties through whom plaintiff deraigns its title, sent word to the occupying claimants of the land covered by the patent, before he parted with whatever interest he may have had in the property, that if they would get the land surveyed "he and his partners" would convey to each claimant the amount of ground claimed and occupied by such claimant that was within the patent; "that they (Jones and his partners) did not claim it." In the first count plaintiff claims title to the easterly portion of lot 80, and in the second count it claims ownership in common with defendant to the westerly portion. On January 15, 1907, nearly three years after filing its original complaint, plaintiff filed an amended complaint containing but one count in which it claims to be the sole and absolute owner of all of lot 80, and prays for a decree. quieting its title to all of said lot. Both of these complaints, which were verified by A. V. Anderson as vice president of plaintiff company, were received in evidence. The court found in favor of plaintiff upon the issues presented, and rendered judgment quieting its title in the property. Defendant appeals. Weber & Olson, for appellant. Dey & Hoppaugh, for respondent. MCCARTY, J. (after stating the facts as above). Respondent has filed a motion to In fact, the evidence shows that from 1876 strike from the record certain documents. until the commencement of this action, a pe- consisting of plats, deeds, tax receipts, and riod of 28 years, no one interfered with de- other papers (marked Exhibits A to V) that fendant in his possession and occupancy of were received in evidence, on the ground the land in question. One of plaintiff's pred- "that the same are not authenticated by the ecessors in interest testified that he claimed clerk of the court below nor transmitted by to own the property from 1885 to 1898, when said clerk, nor do the same constitute any he sold it, in connection with the livery sta- part of the transcript certified on appeal by ble mentioned, to plaintiff; but there is no the clerk of the court below." This motion is evidence that he ever asserted or made known followed by another to strike from the record his claim of ownership to defendant or to any the bill of exceptions on the ground that it other person. The land described in the Val- shows on its face that it does not contain all entine patent was not assessed for taxes, nor the evidence received upon the trial; that were any of the parties connected with that certain documents (A to V, exhibits) introtitle ever assessed for land covered by the duced in evidence, material to the considerapatent, prior to the year 1891. In 1891 the tion of the errors assigned, are omitted from entire 40 acres covered by the patent was as- the bill of exceptions and the transcript. It sessed at $160 in the name of Bentley, the appears that each of the documents and papatentee, and others holding undivided inter- pers referred to in the motions to strike was ests therein with him, the total tax being $1.- produced at the trial, shown to and identified 39. The property was sold for these taxes. by witnesses as being the identical instruThe same thing occurred again in 1892. ment or thing that it purported to be, markPlaintiff in no way connects his title with ed for identification by the court stenograthese tax sales. After the year 1892, until pher, and then introduced in evidence. The 1896, no taxes were assessed or levied against references made in the transcript of the prothe land as described and embraced within ceedings to each document, paper, or thing. the Valentine patent. From the year 1878, introduced in evidence as an exhibit are not until 1891, defendant was assessed for and only referred to by their identification marks. paid taxes on real estate in Bingham Canyon, but the name and character of each document but no description of the real estate was giv- or thing marked as an exhibit is stated in en. During these years when the assessor the record. It would be difficult to make a called on defendant for the purpose of assess- record more full and complete in this respect ing his property, defendant, in listing his than the one before us, without reading the property, would point out to the assessor the entire contents of each exhibit, consisting of land claimed and occupied by him. The rec-written or printed matter into the record. ord shows that the assessors, in their assessments of real estate for taxes in Bingham Canyon from 1878 up to and including 1893, did not describe the property, but only gave the valuation. From 1893 until 1900 only the improvements were assessed. The taxes assessed against lot 80, "Smith's Survey" since 1900 have been paid by defendant. The first complaint filed by plaintiff in this action (April 24, 1904) contains two counts. The certificate of the judge to the bill of exceptions recites "that the above and foregoing bill of exceptions contains all of the testimony and all of the evidence given and introduced or offered upon the trial of said cause, and all of the objections and motions made with respect thereto, and all of the rulings of the court upon such objections and motions, and all of the exceptions to such rulings, and particular reference sufficient to identify all of the documentary evidence giv- | The conclusions here reached are fully supen and introduced or offered upon said trial." ported by the following authorities. 3 Ency. It is contended in support of the motions: Pl. & Pr. 430, and cases cited; 2 Spelling First, that as the exhibits were neither incor- New Tr. & App. Pro. § 447, Elliott on App. porated in nor attached to the transcript on Pro. §§ 818, 819; 3 Cyc. 58. Appellant has assigned several errors in appeal, they are no part of the bill of exceptions and cannot be considered by this court; which he assails the findings of fact made second, that the reference made to the ex- by the court and the judgment rendered hibits in the certificate of the judge to the thereon. It is contended that the findings of bill of exceptions is not sufficient to identify | fact are not only unsupported by, but are them, and to prevent this court from being contrary to, the evidence. As we observed in imposed upon by the substitution of docu- the foregoing statement of facts, appellant ments and papers not in the record for those claims that he acquired title to the premises that were received in evidence, and made a in dispute by continuous, open, uninterruptpart of the bill of exceptions. We think the ed, adverse possession of the same for a period of more than 20 years under claim of contention is wholly without merit. title founded upon a written instrument, as provided in sections 2862, 2863, Comp. Laws 1907, which, so far as material here, are as follows: * * "2862. Whenever it shall appear that the occupant, or those under whom he claims, entered into possession of the property under claim of title exclusive of other right, founding such claim upon a written instrument, as being a conveyance of the property in ques** and that there has been a contion, tinued occupation and possession of the property included in such instrument, or of some part of the property under such claim, for seven years, the property so included shall be deemed to have been held adversely, except that when the property so included consists of a tract divided into lots, the possession of one lot shall not be deemed a possession of any other lot of the same tract. In answer to the objection that the exhibits are neither incorporated in nor attached to the transcript, it is sufficient to say that the statute makes no such requirement, and if it did it would require something to be done which, in many cases, would be an impossibility. It is not an unusual thing for exhibits received in evidence in the trial court and used in this court on appeal to illustrate the issues, facts, and questions involved, to consist of maps, documents, and records too numerous and bulky to attach to the transcript. And in some cases exhibits consisting of models made of iron or heavy pieces of timber are brought here as part of the record on appeal. In such cases it would be impossible to incorporate the exhibits in or to make them a part of the transcript. Section 3284, Comp. Laws 1907, among other things, provides that in making up a bill of exceptions "documents on file in the action or pro"2863. For the purpose of constituting an ceeding may be copied or the substance thereof stated, or reference thereto sufficient to adverse possession by any person claiming a land shall be deemed to have been identify them may be made." (Italics ours.) title founded upon a written instrument, As we have observed, the references made in 2. Where it has been prothe bill of exceptions to the exhibits are suf- possessed and occupied in the following ficient to enable this court to readily identify cases. them, and this is all that the statute requires tected by a substantial enclosure. 3. Where, although not enclosed, it has been used for in that respect. the supply of fuel or of fencing timber for purposes of husbandry, or for pasturage, or for the ordinary use of the occupant." (Italics ours.) * A map showing the location of the land in dispute, with reference to streets and other properties in the immediate vicinity, and designated in the record as Plat A, was used With the exception of a slight, unimporby both parties at the trial to help illustrate See the evidence given by many of the witnesses. tant change in section 2862, the foregoing This map was marked Exhibit G for iden- has been the law of Utah since 1876. tification. In offering it in evidence counsel sections 1101 and 1102, Rev. St. 1876, secfor appellant referred to the map as Plat Gtions 3134 and 3135, vol. 2, Comp. Laws 1888, instead of Exhibit G. Counsel for respondent and sections 2862 and 2863, Rev. St. 1898. strenuously insist that the map should be stricken from the bill of exceptions, because not identified as the map admitted in evidence. The record shows that after the map was received in evidence counsel on both sides, during the remainder of the trial, repeatedly referred to it as Plat G. The numerous references made in the bill of exceptions to this map as Plat G, and the fact that it is the only exhibit in the case marked "G" for identification, conclusively shows that Plat G and Exhibit G are one and the same The first point to be determined is: Does the evidence show that the appellant's possession of the premises was of the continuous and open character contemplated by the statute? We are clearly of the opinion that it does. The evidence, without conflict, shows that from November, 1876, until the commencement of this action appellant used corner of which was on lot 80 as a yard in connection with his blacksmith shop, one He not only used this building, said lot. which contained two rooms or apartments, as a workshop, but during all these years room. the west, and the mountain which rises abruptly from the creek to the west, formed the westerly boundary of the lot, and we think it may be fairly inferred from the evidence that appellant, during his occupancy of the land, has paid all the taxes that have been assessed against it. occupied it as his residence. The room or apartment on the east and facing the street he used as a blacksmith shop and the back or west apartment as an office and living On this point appellant testified, and his testimony is corroborated by several other witnesses who testified in reference to the same matter, as follows: "I had need of It is contended that because respondent this 25 feet of ground (lot 80) to the south and its predecessors in interest occasionally of my blacksmith shop for repairing wagons, passed over lot 80 in hauling hay to and sleighs, and things like that. I have never manure from the livery stable appellant's had any other place for my blacksmith yard possession was thereby interrupted, and during all of the time I have been in posses- hence not continuous. The Supreme Court of sion there. My residence was in the black- California has repeatedly defined what consmith building. I slept there and batched stitutes "possession and occupancy" under a there. I kept a stove there and had a lot statute which is identically the same as the of coal and firewood on the south line of lot statute of this state. In Coryell v. Cain, 16 80 for heating tires. I left wagons and Cal. 573, Field, C. J., in speaking for the sleighs on lot 80 and did repair work there." court, said: "By actual possession is meant Appellant built an outhouse, or water clos- a subjection to the will and dominion of the et, on lot 80 which was used as an appurte- claimant, and is usually evidence by occunance to his home and blacksmith shop dur-pation-by a substantial enclosure-by culing his occupancy of the premises. By refer- tivation, or by appropriate use, according to ring to the map or diagram in the foregoing the particular locality and quality of the statement of the facts it will be observed property." that the owners of the adjoining property on the north and on the south of this lot have constructed buildings near and in some instances contiguous to the boundary lines thereof, but on no occasion have they, or any of them, so far as shown by the record, ever attempted to encroach upon the property in controversy with their improvements or in any manner interfere with appellant's occupancy of the same, until the commencement of this action. One of these buildings was constructed and maintained by respondent north of and contiguous to lot 80. In fact, the only interest respondent claimed in the west half of the lot prior to the filing of its second amended complaint (January 15, 1907) was the right to use that portion of it in common with appellant. This is manifest from the fact that it is alleged in the original complaint and in the first amended complaint, both of which were verified by A. V. Anderson, vice president and secretary of the company, and who, as shown by the record, has been familiar with the facts and circumstances under which appellant claimed the property since 1898, "that plaintiff is now, and with its grantors and predecessors in interest for upwards of seven years last past has been, the owner in fee simple of the right to use and possess in common with the said defendant, the west half of lot 80." And in the prayer of this complaint it is asked that it be adjudged and decreed to "be the owner in fee simple of the right to use and possess in common with said defendant of the premises hereinbefore described." In 1878 appellant built a fence along the north line of lot 80, extending from a point near the southwest corner of the blacksmith shop to the northwest corner of the lot. This fence he maintained until 1895 when it was destroyed by fire, which also burned down the blacksmith shop. Carr's Fork creek on In Wolf v. Baldwin, 19 Cal. 313, it is said: "Possession which is accompanied with the real and effectual enjoyment of the property" is sufficient. "It is the possession which follows the subjection of the property to the will and dominion of the claimant to the exclusion of others; and this possession must be evidenced by occupation or cultivation, or other appropriate use, according to the locality and character of the particular premises." Baldwin, J., concurring, says: "It must, in other words, be an open, unequiv ocal, actual possession, notorious, apparent, uninterrupted, and exclusive, carrying with it the marks and evidences of ownership, which apply in ordinary cases to the possession of real property." Brumagim v. Bradshaw, 39 Cal. 24; Webber v. Clark, 74 Cal. 11, 15 Pac. 431; Kockemann v. Bickel, 92 Cal. 665, 28 Pac. 686; 1 Cyc. 999; 2 Ency. L. & P. 366. Holtzman v. Douglas, 168 U. S. 278, 18 Sup. Ct. 65, 42 L. Ed. 466, was a case in ejectment. In that case, as here, the defense of adverse possession was interposed. The use made of the premises in that case was somewhat similar to the use made of lot 80 by the defendant in this case. In the course of the opinion the court summarized and commented on the evidence as follows: "It was testified on behalf of the defendants that some time in the latter part of the same year, 1865, one Richard Rothwell, a stonecutter and builder, who owned and occupied an adjoining lot, deposited upon the rear of the lot in controversy some pontoons, which he had purchased from the United States, and which he stored there until he could make some disposition of them; and that he afterwards used a part of this lot for the deposit of stone and marble which he used in his business. He testified that he had deposited three or four wagonloads of * marble there as early as the year 1867, and Moreover we think the facts in the case adverse to the holder of the legal title, and As we have observed, lot 80 was used by We now come to what we deem to be the most difficult question presented by the apDoes the evidence show that peal, namely: appellant had color of title to the premises during his occupancy of the same? Appellant testified that in the fall of 1879 he received a quitclaim deed to the property from James Campbell, through H. Campbell, who, the record shows, was at the time the agent and attorney in fact for James Campbell, with full power to sell and dispose of his real estate, and to execute and acknowledge deeds for the same for him and in his name: that the consideration mentioned in the deed was $55, the amount that he paid Campbell for the land; that he saw H. Campbell sign the deed and duly acknowledge it before a notary public; that the notary public signed the same and put his seal thereon; that it was attested by two witnesses; that he failed to have the deed recorded, and that it was destroyed in the fire that burned down his blacksmith shop in 1895; that the notary public before whom the deed was acknowledged by H. Campbell and one of the subscribing witnesses (giving the name of each) are dead; that he read the deed at the time it was delivered to him by H. Campbell, and that it was in the usual form, "in what they called the legal form in those days." He further testified that he could not give "James the exact language of the deed, but did recollect that in substance it read: to R. D. McDonCampbell, first party, by Hughey Campbell attorney in fact Attention is also invited to the case of Tol- ald, quitclaim deed for certain ground from tec Ranch Co. v. Babcock, 24 Utah, 183, 66 a certain point to the southeast corner, then wherein this Pac. 876, court, speaking running southwesterly to a point (referring through Mr. Justice Bartch, says: "The land to map, exhibit G), then running westerly to was occupied and used the same as other the mountain-going on to the livery ground lands were in that neighborhood. The pos- on the north, then back to point of beginAt the time there were posts session, as appears from the evidence, was ning. open, notorious, uninterrupted, and peacea- there to which this instrument referred. ble, and under a claim of right. It must, One at what is shown on Plat G as souththerefore, necessarily be deemed to have been east corner of lot 8 (lot 81) * and the southeast corner of lot 80 of Smith's sur-, fact heretofore made and filed in the cause, vey on Carr's Fork road, and there was a and to make findings in favor of appellant post at the corner at the junction of Main (defendant), and to enter a decree thereon, Bingham Canyon and Carr's Fork road. The in accordance with the views herein expressdeed referred to these posts and said the ed. Costs to appellant. STRAUP, C. J., and FRICK, J., concur. (48 Colo. 382) GILL v. SCHNEIDER. land went back to the mountain westerly, and it said the ground was 25 feet wide." On cross-examination the witness stated that he did not remember the language of the calls of his deed, but he did insist that "it (the deed) was the same language used them days by (in) quitclaim deeds. Cannot (Supreme Court of Colorado. July 5, 1910.) give the language of the description, only 1. PAYMENT (§ 70*)-EVIDENCE-RECEIPTS. mentioning about them posts and running west so many feet. He (Campbell) showed me the lines. All that I remember is it was the usual form them days, the names of the parties, the description of the property, and they showed me the boundaries, and the posts were there. Q. You cannot give us either in words or substance the description as it appeared on that paper, can you? A. Not exactly; I could not." Other witnesses who were familiar with the premises in 1887 and for many years thereafter, testified to the existence of the posts referred to by appellant in his testimony as being mention In an action for damages for breach of a contract to cure, receipts given to plaintiff for payment of money paid for the anticipated cure were admissible in evidence as tending to prove payment of the consideration to the defendant. [Ed. Note.-For other cases, see Payment, Cent. Dig. § 211; Dec. Dig. § 70.*] 2. PHYSICIANS AND SURGEONS (§ 13*)—CONTRACT TO EFFECT CURE-BREACH-EVIDENCE. Where plaintiff sought damages for breach of an alleged contract to cure her, claiming that the promise to cure was absolute, receipts of payments by plaintiff to defendant written on the back of cards on the reverse side of which was defendant's name, followed by the words "The electro biologist-can cure any and all chronic diseases," etc., were admissible as tending to corroborate plaintiff's claim that the promise was absolute. Counsel for respondent insist that this evi- [Ed. Note.-For other cases, see Physicians dence was insufficient to prove the contents and Surgeons, Cent. Dig. §§ 18-20; Dec. Dig. of the deed, and that, therefore, appellant | § 13.*] wholly failed to show that he held posses- 3. TRIAL (§ 296*) — INSTRUCTIONS - CURE BY OTHER INSTRUCTION. sion and occupied the property in question under claim of title founded upon a written instrument as required by the provisions of the statute hereinbefore mentioned. The ed in the deed. trial court evidently took the same view. In this we think the court erred. To hold that the evidence in this case was insufficient to prove the contents of the deed, which, as we have stated, was made and executed nearly 30 years before the evidence was offered would, in most cases, exclude secondary proof of the contents of a lost deed. This same question was before the Supreme Court of Illinois in the case of Perry v. Burton, 111 Ill. 138, and that court, in the course of a well-considered opinion, said: "A witness testifying to the contents of a lost deed is not expected to be able to repeat it verbatim from memory. Indeed, if he were to do so, that circumstance would, in itself, be so suspicious as to call for an explanation. All that parties, in such cases, can be expected to remember, is that they made a deed, to whom and about what time, for what consideration, whether warranty or quit claim and for what property. To require more would, in most instances, practically amount to an exclusion of oral evidence in the case of a lost or destroyed deed." (Italics ours.) Parks v. Caudle, 58 Tex. 216; Eming v. Diehl, 76 Pa. 374; Scott v. Crouch, 24 Utah, 377, 67 Pac. 1068. The judgment is reversed with directions to the trial court to set aside its findings of An instruction began "if you find" instead of "if you find from the evidence." Other instructions told the jury that they must believe from a preponderance of the evidence all the facts on which plaintiff could recover, and if they did not so believe from the preponderance of the evidence she could not recover, and another stated that the burden of proof was on of the evidence, and unless they believed from plaintiff to sustain the issue by a preponderance a preponderance of the evidence that plaintiff had sustained damages as stated, they must find understood that they must find the facts from for defendant. Held, that the jury must have a preponderance of the evidence, and the error in the first instruction was not ground for reversal. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 705-718; Dec. Dig. § 296.*1 4. APPEAL AND ERROR (§ 701*)-REVIEW-INSTRUCTIONS-PRESENTATION OF EVIDENCE. If appellant desires an objection to an instruction because not based on evidence to be considered on appeal, it should appear in the abstract that evidence omitted did not relate to the matter covered by such instruction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2934; Dec. Dig. § 701.*1 5. TRIAL (§ 261*)-REQUESTS-REFUSAL. It is not error to refuse to give several requested instructions as a whole where a part of them were erroneous. [Ed. Note. For other cases, see Trial, Cent. Dig. § 660; Dec. Dig. § 261.*] 6. APPEAL AND ERROR (§ 1002*)-CONFLICTING EVIDENCE. The court will not review a verdict based on conflicting evidence. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |