Olsen v. Swapp , 535 P.2d 1233 ( 1975 )

ELLETT, Justice:

Plaintiff filed her suit in the District Court of Davis County seeking to enjoin Bountiful City, its officers and agents, from entering upon property she occupied under a claim of right for the purpose of building a sidewalk. From an adverse decision the plaintiff appeals.

The plaintiff owns and occupies a home on the corner of Third North and Main Streets in the City of Bountiful. The City seeks to construct a sidewalk along the south boundary of the plaintiff’s property upon a strip of property to which the plaintiff claims ownership. The City claims the property as a part of the street.

The first owner of the plaintiff’s property was William Walton, who received his title thereto from the Probate Judge in 1872. The property he then received was described as “Block 53, Plat A in the town of Bountiful.” There has never been any other description of the property in any instrument of the title. In fact when plaintiff got title to the property on November 25, 1940, it was designated as “Lot 1, Block 53, Plat A, Bountiful Townsite Survey.”

The only record of a plat of Bountiful City is the one in the office of the County Recorder. It has been there since the memory of man runneth not to the contrary. It forms the basis not only of the claim of the plaintiff, but also of all other described property within Plat A of the City. The plat clearly shows that the five-foot strip of land in dispute belongs to the City.

Plaintiff has never paid any taxes on the strip, and she has her full depth of land as called for in her deed beginning from the north line of the strip. She cannot obtain land by adverse possession against the City.

The north line of the street in question is a straight one except that plaintiff alone would make a five-foot jog in it as it passes her property.

While there is now no record available as to when the plat was filed or recorded, nevertheless the fact that it is in the office where it should be and has been used for such a long time, without being questioned by anyone prior to this plaintiff, gives evidence as to its verity. The fact that it is on the wall instead of in a drawer is of no importance. We presume the territorial officials acted properly and in accordance with the laws in force at the time. The trial judge in this case was entitled to find that the plat on the wall was correct and was the official plat of the City.

It is to be noted that a resurvey was made of Plat A in 1927. Insofar as it relates to Block 53 (in which plaintiffs property is located) there is apparently no dispute as to the actual location of the boundaries of Third North Street as it relates to the south boundary of the plaintiff’s property.

Neither plaintiff nor her predecessors in interest ever paid any taxes on the disputed strip. In fact, no tax has ever been levied on it since it is a part of the street owned by the City.

It is interesting to note that while plaintiff claims that there is no official plat to locate the street of Bountiful City, still she has to rely on that very plat to locate her own land. The plaintiff has the burden of establishing her title to the disputed strip of 'land, and she cannot rely upon any infirmity in that of the City. This burden she has not met. If she is permitted to prevail in this suit, she will get an undeserved additional five feet of land over that which is called for in her deed.

The judgment of the trial court is affirmed. No costs are awarded.

HENRIOD, C. J., CROCKETT, J., and NELSON, District Judge, concur. MAUGHAN, J., does not participate herein.