dissenting.
I do not join the main opinion because it departs from the rules of appellate review which preclude this Court from substituting its judgment for that of the trial court.
The main opinion rejects out of hand the Findings of Fact, Conclusions of Law, and Judgment of the trial court simply by stating that the “issues can be resolved as a matter of law.” I cannot accept that ipse dixit.
The stance taken by the main opinion ignores the fact that judgment in an action to quiet title cannot be entered without the taking of proof. U.C.A., 1953, 78-40-13 specifically so provides, as follows:
When the summons has been served and the time for answering has expired, the court shall proceed to hear the cause as in other cases, and shall have jurisdiction to examine into and determine the legality of the plaintiff’s title and of the title and claims of all the defendants and of all unknown persons, and to that end must not enter any judgment by default against unknown defendants, but must in all cases require evidence of plaintiff’s title and possession and hear such evidence as may be offered respecting the claims and title of any of the defendants, and must thereafter enter judgment in *590accordance with the evidence and the law. The judgment shall be conclusive against all the persons named in the summons and complaint who have been served and against all such unknown persons as stated in the complaint and summons who have been served by publication. [Emphasis added.]
The trial court accordingly set this matter for trial, at which time the Bambergers presented their evidence of title and possession. The evidence consisted of the pleadings, depositions, exhibits and affidavits. The Schulders offered no evidence or counter-affidavits, notwithstanding the fact that they raised the following affirmative defenses in their Answer: 1) that the Bam-bergers’ possession was with their consent; and 2) that the Bambergers' payment of taxes duly assessed against the property was “voluntary,” the implication being that they paid them for the benefit of themselves and the Schulders as well.
The record before us contains substantial evidence to support the conclusion of the trial court that the Bambergers’ possession of the property was open, notorious, continuous, exclusive and adverse to the Schuld-ers, and that the Schulders knew, or reasonably should have known, of the adverse claim of the Bambergers. Specifically, the Bambergers’ possession of the property dates back to 1911, without objection by the Schulders, and they have paid the taxes thereon for a period of 40 years, and presumably since 1911. The Schulders did not assert any claim to the property, nor did they pay or offer to pay any taxes thereon; in fact, there was no contact of any kind between the Bambergers and the Schulders for at least 40 years. The Bambergers alone defended their title to the property against the county assessor to protect it against forced sale. Persons acquainted with the property sought out the Bamber-gers as the sole owners thereof for the purpose of adjusting mining claim boundaries. Russell G. Schulder, the original co-tenant of Ernest Bamberger, did not assert any claim to the property from the date of its acquisition in 1911 until the date of his death in 1926. The administrator of his estate did not list the property as an asset of the deceased in the inventory of other real property filed in the probate of his estate. However, the subject property was listed as an asset in the estate of Ernest Bamberger.
Faced with the foregoing state of facts, coupled with the failure of the Schulders to offer any evidence whatsoever in support of their affirmative defenses, or to otherwise explain that the Bambergers’ exclusive possession of the property over a period of 68 years was not adverse to their interests, it was reasonable and proper for the trial court to conclude that the conduct of the Bambergers was such as to place them on notice of the adversity of their claim so as to invoke the running of the statute of limitations. Although the statute of limitations does not run between co-tenants unless and until there is manifested a determination on the part of the one in possession to exclude the other co-tenants,1 the facts of this case clearly meet that standard.
As was stated by this Court in Toltec Ranch Co. v. Babcock:2
The land was occupied and used the same as other lands were in the neighborhood. The possession was open, notorious ... and under claim of right. It must, therefore, necessarily be deemed to have been adverse to the holder of the legal title, and such long-continued possession may be deemed to have been adverse, though not in character hostile. Where one is shown to have been in possession as owner for the period of limitation, apparently as owner, and such possession is not explained or otherwise accounted for, it will be presumed to have been adverse. [Emphasis added.]
An owner is bound to know of the adverse conduct of his co-tenant. As was stated in Alaska Bank v. Linck:3
The owner need not actually know about the presence of an adverse possession; what a duly alert owner would have *591known, the owner is charged with knowing, and where possession is otherwise proven, courts generally recognize that community repute as well as physical visibility is relevant evidence that the true owner has been put on notice. [Emphasis added.]
I would affirm the judgment of the trial court.
STEWART, J., concurs in the dissenting opinion of HALL, C.J.. Memmott v. Bosh, Utah, 520 P.2d 1342 (1974).
. 24 Utah 183, 66 P. 876 (1901).
. Alaska, 559 P.2d 1049 (1977).