# Adamson Et Ux. v. Brockbank > Utah Supreme Court · October 3, 1947 · 112 Utah 52 URL: https://www.frixlaw.com/law-library/cases/3986921 ## Case - **Full name:** ADAMSON Et Ux. v. BROCKBANK Et Al. - **Court:** Utah Supreme Court - **Decided:** October 3, 1947 - **Citations:** 112 Utah 52; 185 P.2d 264; 1947 Utah LEXIS 100 - **Precedential status:** Published - **Opinion:** Concurrence by Wolfe - **Judges:** Pratt, Wolfe, Latimer, Medonough, Wade - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3986921 ## Opinion text WOLFE, Justice (concurring). I concur in the order denying the motion to dismiss on the ground that the amendment to the judgment changed the substance or character of the judgment. I am not prepared to say that the time for appeal would not have run from the date of the overruling of the motion for a new trial, had not the motion to amend the judgment been timely made and especially when made within 90 days of the date of the overruling of motion for a new trial. As stated by Mr. Justice Pratt in his dissent, it should have been obvious to the appellants that the clerical error introducing a substantial inconsistency in the judgment was an inadvertence. I am not prepared to say that they could have used it as a means of indefinitely postponing the running of the time to appeal. But in this case they knew that *88 there was a motion to eliminate the mistaken inclusion of Federal Homes, Inc., among the list of defendants in regard to which the complaint had been dismissed and that the motion was granted. I think they may have reasonably relied on a conclusion that the alteration was one which changed the character of the judgment and that we would so find. It certainly did that on the face thereof, even though the defendants must have appreciated the fact that inclusion of Federal Homes, Inc., among the list of those in regard to whom the complaint was dismissed was an obvious mistake. I prefer to lean in favor of rulings which preserve the right, of appeal rather than those that take it away, when there is doubt. In that part of the prevailing opinion which treats the application of the factors to be taken into consideration set out in Sec. 476, page 2977 of the Restatement of the Law of Property, in determining whether an easement should be implied, I point out that it is not necessarily meant that in each case each factor from (a) to (h) both inclusive will play a part. Consideration of some of the factors may result in a conclusion that they are not helpful in a particular case. The list is given in an attempt to present a fairly complete roster of factors which may in various cases come into play. The opinion itself recognizes that, for in the instant case it omits mention of factors (b), (d), and (f), which I agree have no applicability to this case. The majority opinion states that the trial court could have rescinded the quitclaim deed on either the ground of mistake or fraud. As an abstract proposition this may be correct, but I think it unnecessary to consider the ground of mistake. In this case the court found that Brockbank realized that Adamson was not aware that the quitclaim deed would in legal effect relinquish all his right to the easement, but that he (Adamson) only intended it to have a limited effect; that Brockbank must have known that Adamson did not know that it would have that effect. Since the deed was given for Brockbank’s benefit for a limited purpose and without consideration to Adamson, there was placed upon *89 Brockbank a duty not to take advantage of his realization of the impression under which Adamson was laboring. Brockbank was placed by these circumstances in a relationship to Adamson which invested him (Brockbank) with a duty to disclose the full import of a quitclaim deed. I see no objection to the theory of the main opinion that an announcement by Brockbank that his sole intention was to straighten out boundaries was a statement of a fact — his state of mind — which he intended Adamson to act upon, and that Adamson in relying on that fact did act upon it, and so if Brockbank had any further intention, he fraudulently misrepresented the fact of his state of mind. I assume that the result would be the same in this case had there been a consideration of $10' for the quitclaim deed. This case is to be remanded for further proceedings as to the matter of damages. As to the. elements of damage the opinion advances certain advice and guides to the lower court in order that they may be fixed in view of several possible contingencies which may be contained in that judgment. I agree with that part of the opinion, but I add the following by way of supplementation to which the main opinion makes allusion. When a farmer purchases land he can either farm it or rent it to tenants. In either case he will receive a return on his investment. When for a substantial period of time he is precluded from using his land, he thereby fails to receive a return on his investment. He is entitled to compensation for this loss. On the other hand, some wrong-doers might permanently destroy a part of his land, which would immediately entitle him to compensation for the resulting loss in value. (In this case the $2,000 mentioned in the prevailing opinion.) He would thereby receive back a part of his capital investment. The court does not award him compensation for annual loss of income in the future because he can reinvest the compensation for the permanent injury to his land, and this new investment will afford him earnings in the future in place of those he lost by the destruction of his land. And by giving him legal interest on the damages *90 from the date of deprivation he will be compensated as if he had had the money invested. But in this case if the easement is restored the plaintiffs should be reimbursed for the loss occasioned by this enforced idleness in place of the element of permanent loss. The following distinction should be pointed out: Where an easement is quite obviously permanently destroyed at the outset, as would be the case where a substantial building is erected across the way, the easement owner would be obligated to mitigate his damages by promptly realizing whatever he could on his property, as by selling it or putting it to a new use. He could not leave it idle to pile up damages. In the case before us, however, plaintiff apparently did not know that the obstruction would not be removed, and could not be expected to sell his land, though if he could have rented it at a reduced rate, he should have done so. What is the measure of damages for the loss resulting from the enforced idleness of the land? Since its purpose is to provide an appropriate annual return on the value of the landowner’s investment, it would seem this could best be done by allowing legal interest on the value of the land with water for the period during which plaintiffs were denied the use thereof less the profits, if any, made on the land without water during that period. However, the cases indicate that the injured party is allowed the fair rental value, rather than interest, for the period during which the use of the land was denied. So, in Gila Water Co. v. Gila Land & Cattle Co., 28 Ariz. 531 , 238 P. 336, 337 , where defendants wrongfully diverted water from the plaintiffs’ land, the court said: «* * * where land is prepared for growing crops but the same is not planted and cultivated by reason of the wrongful act of another, the measure of damages in such case is the reasonable rental value of the land during the time the land was prevented from being cropped by reason of such wrongful act.” To like effect or Dilday v. David, et al., 1939, 178 Ark. 898 , 12 S. W. 2d 899 ; and Ft. Worth & D. C. Ry. Co. v. Speer, Tex. Civ. App., 1919, 212 S. W. 762 . *91 If the further taking of testimony reveals that the land had any rental value during the period the easement was obstructed, that should be deducted from the fair rental value of the land with water. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3986921. Public record. Not legal advice.