Park v. Wilkinson

Minee, J. * This action was brought under Sec. 3511, Rev. Stat. 1898, to determine the adverse claim and quiet title to real property, by the plaintiff. The complaint alleges title in fee and right of possession in the plaintiff, and [283] that defendants claim an interest therein, which is a cloud upon plaintiff’s title. The defendants denied this, and Mima Wilkinson by cross-complaint alleged title in herself, and set up a special defense by cross-complaint, claiming that plaintiff’s ownership of the land should be declared invalid, and that he should be perpetually enjoined from setting up or making any claim to said premises, and that her claim should be quieted. The appellants claim that owing to the faulty description in plaintiff’s deed he should have filed a bill to correct it; that he has made a mistake in his remedy, and that the court erred in discharging the jury after testimony was closed and in trying the case as an equity case, and in making findings correcting the description in the deed. The description of the premises in the complaint reads as follows: “Beginning at the southeast corner of lot 19, Block 2, Five Acre Plat £A,’ Big Field Survey, Salt Lake County, thence north 17.4 rods, to the northeast corner of said lot; thence west along the north line of said lot.33.8 rods; thence up the center of Canyon Creek in a southeasterly general direction to the east line of lot 20 in said block; thence north 4-|- rods, more or less, to the place of beginning.” The only irregularity claimed in the deed is in the second course, it being claimed that the line when run does not reach the center of Canyon Creek, the beginning of the description of the third course, by 66 feet. The description reads: £‘ Thence west along the north line of said lot 33.8 rods; thence up the center of Canyon Creek in a southeasterly general direction to the east line of lot 20 in said block.” The court read into the deed after the words 33.8, the words “more or less to the center of Canyon Creek, ’ ’ and made his decree accordingly. The [284] creet was 66 feet further west from the point indicated bj the call in the deed, and ran southeasterly, or within about 30 feet south of that point. The words used in the deed should be construed according to the intention of the parties mating it, and when the intention of the parties can be ascertained therefrom, nothing remains to effectuate that intention. By the deed Canyon Creet is made the south boundary of the land. The creet is a natural monument. The end of the second call in the deed is not at any monument or state. The beginning of the third call indicates a natural monument, and explains the meaning of the second call, showing that the intention of the parties was to carry the north line to the creet. In a conveyance by natural monuments, distances and quantity being the most uncertain, must yield to the former. “But when there are no natural monuments or lines called for by which the closing line is to be fixed or ascertained, and no line on the ground, it follows of necessity that the survey is to be closed by a direct line between the termini of the lines on the ground, or as fixed by the courses and distances returned to ascertain those termini.” The natural monuments govern and control the other description. Evidently the intention of the parties was that the north line should run to the Canyon Creek, for from its terminus, as described, the boundary runs from “thence up Canyon Creek in a southeasterly direction to the east line of lot 20.” This creek gives the southeasterly boundary line of the land. We are of the opinion that the court correctly carried the north line of the lot to Canyon Creek, and that the Creek was the west terminus of the second call described in the deed. Upon this subject see, Wharton v. Garvin, 34 Pa. St., [285] 340; Chandler v. McCard, 38 Me., 564; Higginbotham, et al., v. Stoddard, 72 N. Y., 94; 2 Devlin on Deeds, Sec. 835. The appellants also complain that after the testimony was taken the court improperly dismissed the jury and made its findings. In the defendant’s cross-complaint equitable relief is asked, and an injunction prayed against the plaintiff. Actions to quiet title or to determine adverse claims under Sec. 3511, Rev. Stat. 1898, may be of a legal or equitable character, depending upon the pleadings. In the present case, defendant, in her cross-complaint, asks for equitable relief. The court heard the case before the jury until the facts were disclosed, and then discharged the jury, and found the issues for the plaintiff. The action was in the nature of one in ejectment. Such are law cases in which a jury may properly be demanded, unless equitable questions are involved. In such cases the equitable issue should first be passed upon by the court, and whenever an issue of fact, as distinguished from an equitable issue, is to be determined, that question should be left to the jury under proper instructions from the court. In Steele v. Boley, 7 Utah, 67, this court said: “Under our system of practice equitable defenses may be interposed in an action of ejectment, and, if the answer contain all the essential averments of a bill in equity, affirmative relief may be granted thereon. The equitable issues should first be passed upon by the court, for upon such determination as to the relief claimed by a defendant will the necessity of proceeding with the action at law depend. In this case the trial of the legal defense to a jury ignoring the equitable defense and cross-complaint was hregular. Sec. 3128, Rev. Stat. 1898. [286] To tbe same effect is Cohn v. Mining Co.., 2 Utah, 171; Donohue v. Meister (Cal.), 25 Pac., 1096; Newman v. Duane, 27 Pac. (Cal.), 66. The question of the construction of the deed in question, and what were boundaries, was a question of law for the court. Where the boundaries were, as shown by measurements, courses, and distances, were questions of fact for the jury. Whether the defendant was entitled to an injunction restraining plaintiff from setting up or making claim to and occupying the premises, was an equitable issue, the granting of which would depend upon the facts. After determining the equitable issue the court should have submitted the case to the jury upon proper instructions. We are of the opinion that the court should have submitted the facts to the jury, and in failing to do so, erred. The cause is reversed and remanded with directions to set aside the judgment and to grant a new trial. BaRtch, C. J., and BashiN, J., concur.