"[Flor it is a well-recognized rule of law that, on a severance of an estate by a sale of a part thereof, all easements of a permanent character, that have been created in favor of the land sold, and which are open and plain to be seen, and are reasonably necessary for its use and convenient enjoyment, unless expressly reserved by the grantees, pass as appurtenances to the land."
How later courts described this case
- "[Flor it is a well-recognized rule of law that, on a severance of an estate by a sale of a part thereof, all easements of a permanent character, that have been created in favor of the land sold, and which are open and plain to be seen, and are reasonably necessary for its use and convenient enjoyment, unless expressly reserved by the grantees, pass as appurtenances to the land."
- raising the standard as a factor in the creation of easements
- cancellation of deed for fraud or mistake within equity [in personam ] jurisdiction
Written by the judges who cited it.
The opinion
PRATT, Justice
(concurring in part and dissenting in part).
I concur with the principles discussed upon the merits, but invite attention to this dissent as to the motion to dismiss.
A motion for dismissal of this appeal has been interposed upon which the following issue is raised:
Is an appeal within time which is taken within 90 days from the date of entry of a nunc pro tunc order amending the judgment,
but after
90 days from the date of the overruling of the motion for a new trial ?
The factual background for this discussion is as follows:
Among the defendants
in this action
is the Federal Homes Inc.
Of that defendant the findings of fact, conclusions of law, judgment and decree have this to say:
From the findings of fact:
“11. That on or about the 24th day of February, 1943, said Alan E. Brockbank and Gaylie Rich Brockbank conveyed to the
Federal Homes Inc.,
the said lands over which said irrigation ditch and right-of-way passes, and that at the time of said conveyances said Alan E. Brockbank was an officer of the said
Federal Homes Inc.,
to-wit, its President, and during all of the times hereinbefore mentioned he was such officer of the said
Federal Homes Inc.,
and continued to be such officer until the time of the trial hereof.”
“12. The court further finds that at various dates between the 24th day of February, 1943 and the 26th day of March, 1943, said defendants, Alan E. Brockbank and Gaylie Rich Brockbank and the
Federal Homes Inc.,
a corporation, and their agents and servants, entered upon the said irrigation ditch and right-of-way against the will and without the consent of the plaintiffs and filled up and destroyed said irrigation ditch and thereby prevented the plaintiffs from the use thereof and from obtaining water owned by them through the said irrigation ditch and thereby made it impossible for the said plaintiffs to irrigate the crops growing upon the said lands and thereby causing the destruction and loss of said crops for want of water, and on account of said ditch being filled up and destroyed plaintiffs were prevented from planting, growing and
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maturing’ other crops during the crop seasons of 1943 and 1944 and were put to great damage and expense in providing water for culinary and domestic purposes.”
*****
“18. The court further finds that the plaintiffs by reason of the actions of the defendants, Alan E. Brockbank and Gaylie Rich Brock-bank and
Federal Homes Ine.,
a corporation, and of their servants and agents, in filling up and destroying the said irrigation ditch of the plaintiffs and preventing them from conveying water to their lands herein described for the necessary irrigation of their crops and on account of depriving them from the use of said property in the raising of crops during the years of 1943 and 1944 said plaintiffs suffered damages in the sum of $1202.84.”
(Finding No. 19 refers to additional damage.)
*****
“22. The court further finds that at the time of the purchase by the
other individual defendants
of their respective homes from the
Federal Homes, Ina.,
said individual defendants purchased said homes for a valuable consideration and without any notice or knowledge of any claim or interest of the plaintiffs to any right-of-way or irrigation ditch over the property thus purchased.”
From the conclusions of law:
“1. That the plaintiffs, Thomas W. Adamson and Mina Adamson, are
entitled to the judgment
of this court awarding to them damages
against
the defendants, Alan E. Brockbank, Gaylie Rich Brockbank and the
Federal Homes Ine.,
a corporation, in the sum of $1202.84, together with interest thereon from January 1, 1945, at the rate of six percent per annum until the date of' judgment.
“2. That said plaintiffs are further
entitled to a judgment against
the said defendants, Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Ine.,
a corporation, for the sum of $2,000.00 as damages to the land of the plaintiffs described in plaintiff's complaint by reason of the destruction of plaintiff’s ditch and the deprivation of their right-of-way described in plaintiff’s complaint, together with interest thereon at the rate of six percent per annum from January 1, 1945 to the date of judgment herein; provided, that if said Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation, shall within 90 days from the entry of judgment herein repair and reconstruct said ditch and shall cause to be restored to said plaintiffs said right-of-way for said ditch so that said plaintiffs can convey ther water through said ditch and over the said right-of-way for the irrigation of said lands owned by
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the plaintiffs and described in plaintiffs’ complaint, then the said defendants, Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
shall be entitled to be credited upon the amount of said judgment the sum of $2,000.00.
# * * * *
“4. That the defendants
other than
Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation, are entitled to the judgment of this court
dismissing
the plaintiff’s complaint as to .them.”
From judgment and decree:
“1. That the plaintiffs, Thomas W. Adamson and Mina Adamson, do have and
recover judgment against
the defendants, Alan E. Brock-bank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation, for the sum of $1202.84, together with interest thereon from January 1, 194B, until the date of this judgment, amounting to $1289.01.”
“2. That the said plaintiffs, Thomas W. Adamson and Mina Adam-son, are further
entitled to judgment against
the said defendants, Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation, for the sum of $2,000.00 as damages suffered by the plaintiffs by reason of the destruction of plaintiff’s ditch and by reason of being deprived of said ditch and right-of-way described in plaintiff’s complaint, together wth interest on said sum at the rate of six percent per annum from January 1, 1945 until the date of this judgment, amounting to $2148.50.”
“It is provided, however, in this connection that if the said defendants Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation, shall within 90 days from the entry hereof repair and reconstruct the said ditch and shall cause to be restored to said plaintiffs said right-of-way for said ditch to the said plaintiffs so that plaintiffs can convey their water through said ditch and over said right-of-way, then there shall be credited upon said judgment the sum of $2,000.00.”
*****
“4. It is further ordered, adjudged and decreed that the plaintiffs do have and
recover their costs
herein expended
against
the defendants, Alan E. Brockbank, Gaylie Rich Brockbank and
Federal Homes, Inc.,
a corporation.”
“5. It is further ordered, adjudged and decreed that the plaintiff’s
complaint as to
the First Security Trust Company, a corporation,
Federal Homes, Inc.,
a corporation; Bud Pate and Mrs. Bud Pate, impleaded herein as Bud Tate and Mrs. Bud Tate; F. H. Durfee and Mrs. F. H. Durfee; Ralph Garrett and Mrs. Ralph Garrett; Earl
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Scbow and Edith P. Schow, impleaded herein as Mrs. Earl Schow; Melvin Williams and Theressa J. Williams, impleaded herein as Mrs. Melvin Williams; Lee Kirby and Zelba Kirby, impleaded herein as Lee Kerby and Mrs. Lee Kerby; Ray Curran and Gertrude Curran, impleaded herein as Mrs. Ray Curran; John L. Cyphers and Mary Cypers, impleaded herein as Jack Cyphers and Mrs. Jack Cyphers; Max Nielson and Leah B. Nielson, impleaded herein as Mrs. Max Nielson; Amber Boulter and Ruth M. Boulter, impleaded herein as Mrs. Amber Boulter, be and the same
is hereby dismissed.”
(All italics in the above quoted matter are mine.)
Obviously the inclusion of
Federal Homes, Inc.,
in Par. 5 of the judgment and decree was a clerical error. That paragraph was intended to correspond with Par. No. 4 of the conclusions of law, and when an analysis of the other quotations is made, it shows clearly why such was the case.
The Federal Homes, Inc., was one of the defendants who moved for a new trial. If it thought the action had been dismissed as against it, such a motion was indeed a strange way of evidencing such a thought. The motion for new trial was denied May 17, 1946. On June 12, and 14, 1946, the plaintiffs (Adamsons) served and filed a notice of motion to strike from paragraph 5 of the decree the words
“Federal Homes, Inc., a corporation”
on the grounds of inadvertence and mistake and that it was a clerical error. On the 23d day of June, 1946, an “Order Amending Judgment” was entered correcting the error and directing
“that this order correcting the said judgment and decree and the record thereof be entered nunc pro tunc to appear on the record as of the 29th day of March, 1946, that being the time date when said judgment and decree was originally made and entered.”
This order recites that it appears that this mistake was
“by reason of inadvertence and clerical error.”
The appeal is from the judgment and decree as entered on the 29th of March, 1946, — quoting in particular certain paragraphs — and also an appeal is taken from
“the order and judgment made and entered in the above entitled court and cause on the 23rd day of June 1946.”
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It seems rather obvious that the parties and the lower court have considered this error as merely clerical up and until the motion for dismissal — the defendants by their motion for new trial, the plaintiffs by their motion to strike, and the lower court by the finding supporting the motion to strike.
If just a clerical error, then its correction would not extend the time of appeal; if a substantial error, it would be reasonable to hold that a motion to correct it would have the same effect as a motion for a new trial — extend the time to appeal until it was ruled upon.
It seems obvious that the error is clerical. This shows upon the face of the record. No one has been misled as to that fact.
Attention is invited to the following authorities:
Cullen
v.
Harris et al.,
27 Utah 4 , 78 P. 1048 ;
Cody
v.
Cody,
47 Utah 456 , 154 P. 952 ;
Citizens’ Nat. Trust & Savings Bank of Los Angeles
v.
Holten,
210 Cal. 44 , 290 P. 447 , Sec. XV, 10 A. L. R. 588, 67 A. L. R. 842, and 126 A. L. R. 977; Amer. Juris., Vol. 30, Sec. 111, p. 877.
The appeal should be dismissed.