Koller v. Godfrey

----ooOoo----

Evan O. Koller,
Plaintiff and Appellant,

v.

F. Burke Godfrey; B. Lamont Godfrey;
and Burke's Utah Land and Livestock,
LLC, a Utah limited liability company,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981215-CA

F I L E D
December 2, 1999

1999 UT App 346 -----

First District, Logan Department
The Honorable Gordon J. Low

Attorneys:
M. Byron Fisher and Scott M. Petersen, Salt Lake City, for Appellant
L. Brent Hoggan, Logan, for Appellees

-----

Before Judges Greenwood, Davis, and Orme.

ORME, Judge:

Neither boundary by acquiescence nor the public highway issue were mentioned in the pleadings or pretrial order. Yet the parties tried these issues by "express or implied consent" and thus the issues should be "treated in all respects as if they had been raised in the pleadings."(1) Utah R. Civ. P. 15(b).

BOUNDARY BY ACQUIESCENCE

Boundary by acquiescence is a conclusion of law reviewed for correctness, but it is "the type of highly fact-dependent question, with numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts. We therefore overturn the finding [regarding boundary by acquiescence] only if we find that the trial judge's decision exceeded the broad discretion granted." Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998) (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998)). Thus, "[w]e make allowance for the advantages the trial court has because of [its] proximity to the parties, the witnesses and the trial." Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314, 315 (1966).

There are four requirements for establishing boundary by acquiescence: "'(i) occupation up to a visible line marked by monuments, fences, or buildings, (ii) mutual acquiescence in the line as a boundary, (iii) for a long period of time, (iv) by adjoining landowners.'" Orton, 970 P.2d at 1257 (emphasis added) (citation omitted). Boundaries established by deeds do not take precedence over boundaries established by acquiescence. To suggest otherwise is, in essence, to reinstate a fifth requirement--"objective uncertainty"--that was renounced as an element of boundary by acquiescence by the Utah Supreme Court nine years ago. Staker v. Ainsworth, 785 P.2d 417, 421 (Utah 1990). The very doctrine is based, in part, on the reality that deeds may say one thing, while the parties do another. See id.

The trial court's findings establish that the four elements of boundary by acquiescence were met, even though the court failed to specifically refer to the doctrine.(2) "While it is true that [Koller] produced evidence that there had not always been acquiescence in the fence line as the boundary . . . the trial court was not required to believe and accept this evidence as against the evidence adduced by [the Godfreys]." Judd Family Ltd. Partnership v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990). Rule 52(a) precludes us from setting aside such determinations, as the trial court was able to judge the credibility of the witnesses and we are not. See Utah R. Civ. P. 52(a); Orton, 970 P.2d at 1257.

PUBLIC ROAD

Whether a road is a public highway is a mixed question of fact and law and will be reviewed for correctness, see Heber City Corp. v. Simpson, 942 P.2d 307, 309-10 (Utah 1997), but "significant discretion" is given to the trial court in determining the legal consequences of the facts found, because the statute's "legal requirements . . . are highly fact dependant and somewhat amorphous." Campbell v. Box Elder County, 962 P.2d 806, 808 (Utah Ct. App. 1998). The law does not lightly allow the unintended transfer of property from private to public use. Thus, under Utah Code Ann. § 72-5-104 (Supp. 1999), Koller is required to prove: (1) continuous use, (2) as a public thoroughfare, (3) for a period of ten years, see Heber City Corp., 942 P.2d at 310, each by clear and convincing evidence. SeeCampbell, 962 P.2d at 808. Koller failed to meet this burden.(3)

Although the section twelve road was used by a family that homesteaded the property long ago, and the section eighteen road appeared on various maps, this evidence does not meet the burden required for creating a public highway, whether as a "county road" or otherwise. Koller failed to show that the use in watering horses or visiting the homesteaders was not permissive. See id. at 809 (permissive use cannot result in dedication of private property to public). Even if the roads were used by members of the public at some point, the trial court was not convinced that the roads were so used for ten continuous years at any point. See Utah Code Ann. § 72-5-104 (Supp. 1999). We see no error in the trial court's pivotal assessment that "a few . . . wheel tracks in the dirt do not a roadway establish in any stretch of the imagination and particularly in light of the evidence before this Court."(4)

CONTINUANCE

Even assuming a motion for continuance was properly made, "granting a motion to continue a trial is within the trial court's discretion." Holbrook v. Master Protection Corp., 883 P.2d 295, 298 (Utah Ct. App. 1994). See Utah R. Civ. P. 40(b). Koller's counsel had the opportunity to subpoena Mr. Anderson and chose not to do so. In any event, Koller has not convinced us he was harmed by the trial court's failure to hear Mr. Anderson's testimony. As the trial court explained, the testimony of a neighbor or occupant living next to a road is not the kind of competent evidence Koller needed to prove the road was a public highway.

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 
 

______________________________
James Z. Davis, Judge

1. For example, Koller acknowledges in his brief that "the trial court . . . look[ed] beyond . . . the deeds" and "Godfrey argued that a fence constituted the boundary line." While the exact legal terminology was not used, evidence consistent with boundary by acquiescence was presented and argued as an alternative to reliance by the trial court simply on the deeds.

2. Koller makes much of the current status of the fence, stating it was not sufficiently visible. However, the current status of the fence is not controlling. The law merely requires a recognizable physical boundary of any character, which has been acquiesced in as a boundary for a long period of time. SeeOrton, 970 P.2d at 1257; Olsen v. Park Daughters Inv. Co., 29 Utah 2d 421, 511 P.2d 145, 146-47 (1973) (holding that boundary can be of any character including riverbed). In this case, the trial court found that the boundary was marked not only by the fence that had long stood on the property, but also by other physical monuments including an upright railroad tie, a trough, and a square pipe.

3. Koller alleges that had the trial court not excluded a county map or his testimony that the road was a public road, he would have met his burden. Yet the trial court correctly indicated otherwise, stating that a road's presence on a map is not "competent evidence as to what a [public] road is or is not," and that "if it was [a public road] some neighbor living next to it is not the competent evidence you [need to prove it]."

4. While "[a]ll public highways once established shall continue to be highways until abandoned or vacated by order of the highway authorities having jurisdiction over any highway," Utah Code Ann. § 72-5-105 (Supp. 1999), this provision is meaningless in this case, as the road must first be shown to be a public highway, which did not happen here. A private road may be abandoned by non-use, such as by plowing it under.