Holbrook v. Carter

CALLISTER, Justice

(dissenting).

The trial court determined that for' approximately 15 years and continuing unto the date hereof, the plaintiffs have held the subject real property openly, notoriously and adversely unto all the world including defendants, have planted crops and cultivated the same thereon, fenced the same, have affixed signs from time to time to the fence containing the wording “No Trespassing,” “No Hunting,” “Private Property,” and equivalent wording, and have paid all the property taxes assessed on the property during said 15 years. The court held that the plaintiffs had perfected title to the property adverse to all the world and particularly to the defendants and therefore quieted title in the plaintiffs.

Since the trial court found that plaintiffs’ possession was adverse to their co-tenants, this c^nirt will not disturb such finding unless it was clearly against the weight of the evidence or unless the court has misapplied the principles of law or equity.

This case appears to fall clearly within the rule of law approved in McCready v. Fredericksen, 41 Utah 388, 398, 126 P. 316 (1912):

When one enters avowedly as tenant in common with others, his possession is the possession of those others,, so long as the tenancy in common is not openly disavowed. Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to exclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant to him. He must, in the language of the authorities, “bring it home” to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner.

The trial court in effect determined that the acts and conduct of plaintiffs could not be reconciled with the legal presumption that what plaintiffs did was for the benefit of their co-tenants, the Ehlers, as well as for the benefit of themselves. The record substantiates that the acts of the plaintiffs in interest have consistently been acts *292of complete ownership and meet the test laid down in McCready v. Fredericksen.1 The trial court could properly conclude that plaintiffs’ conduct over a period of 15 years indicated an intent to oust the co-tenants of their rights or rebut the presumption that the plaintiffs acted for the benefit of their co-tenants. This being so, this court will not disturb the trial court’s finding that plaintiffs’ possession was adverse to their co-tenants.2

The trial court should be affirmed.

CROCKETT, C. J., and HENRIOD, J., having disqualified themselves do not participate herein.

. See Clotworthy v. Clyde, 1 Utah 2d 251, 254, 265 P.2d 420 (1954).

. See Heiselt v. Heiselt, 10 Utah 2d 126, 130, 349 P.2d 175 (1960).