I cannot join the majority opinion. I would reverse the trial court and direct that it enter a judgment fixing the Warren Canal as the boundary between these two parcels.
As Justice Howe notes, the usual rule is that calls to monuments control over metes and bounds calls. Achter v. Maw,27 Utah 2d 149, 155, 493 P.2d 989, 993 (1979); Scott v. Hansen,18 Utah 2d 303, 306, 422 P.2d 525, 527 (1966); Johnson RealEstate Co. v. Nielson, 10 Utah 2d 380, 382, 353 P.2d 918, 920 (1960); Finlayson v. Denver R.G.W.R., 110 Utah 319, 323,172 P.2d 142, 144 (1946); Park v. Wilkinson, 21 Utah 279, 284,60 P. 945, 946 (1900). Here, appellants and the amicus curiae, the Utah Council of Land Surveyors, contend that the trial court gave preference to the metes and bounds description over the call to a canal. Appellant and the amicus both contend that there is no evidence that a canal ever existed at the point indicated by the metes and bounds description and that the only canal in the area is the Warren Canal. Both argue that the descriptions make perfect sense when read to run to the Warren Canal.
Justice Howe would affirm the trial court by reasoning that the trial court found the metes and bounds to agree with *Page 1028 the call to "a canal." This result is accomplished by suggesting that the trial court found, on the basis of substantial evidence, that there was a canal at the location indicated by the metes and bounds calls, a canal other than the Warren Canal.
The difficulty with Justice Howe's reasoning is that there is absolutely no evidence in the record, apart from the metes and bounds calls in the deeds, that any canal ever existed at the point called to. In fact, the trial judge did not claim to have found that such a monument ever existed. Instead, he stated only that "there is some evidence of a possibility that at one time there was a canal in that area [the area called to]." This is not enough to support a finding that such a canal ever existed, and absent such a finding, the call to a canal must be given preference over the metes and bounds and the boundary must be settled at the Warren Canal.
For these reasons, I would hold that the trial court committed an error of law by preferring a metes and bounds call over a call to a monument. To the extent that the trial court's statement could be construed to be a finding that there may once have been a canal other than the Warren Canal in a location congruent with the metes and bounds description, I would hold that such a factual finding was clearly erroneous. Utah R.Civ.P. 52(a); see, e.g., Grayson Roper Ltd. v.Finlinson, 782 P.2d 467, 470 (Utah 1989); Western Kane CountySpecial Serv. Dist., 744 P.2d 1376, 1377 (Utah 1987).