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Show Page THE DAILY RECORD 3 ment for ingress to and egress from such land to which the road in no way, or otherwise, was appurtenant, must fail. conveyance-wis- e Plaintiffs claim that his conveyance of 15 of the parcel to be used as a roadway, was a conveyance of the fee, is not supported by the record. Appeal from judgments for each of the above plaintiffs, requiring the State Insurance Fund, carrier for Workmen's Compensation claims, to pay a proportionate share of the costs and attorneys' fees in actions brought by plaintiffs against third-part- y tortfeasors, where judgments were recovered and the plaintiffs reimbursed ihe Fund in full for the amounts of awards paid to them from the Insurance Fund, - all of which is provided for and governed Utah Code Annotated 1953, set out at length in McConnell by Title v. Comm, of Finance, 13 Utah 2d 395, 375 P. 2d 394 (1962), a case relied on by appellant in the instant litigation. Reversed, with no costs awarded. 35-1-- MONDAY, FEBRUARY 2, 1970 WE CONCUR: 62, J. Allan Crockett, Chief Justice Pertinent and essential facta may be abstracted as follows: Each plaintiff l)suffered injuries, 2) received compensation from the Fund under the Workmen's Compensation Act (Title 35-U.C.A. 1953) 3) sued and recovered judgment against third-part- y tortfeasors, 4) paid the costs and attorneys' fees incident thereto, 5) returned to the Fund amounts they had received therefrom, 6) but under protest, after refusal of the administrators of the Fund to share in such expenses, 7) all of which occurred before this court's decision in Worthen v. Shurtleff, which required those administering the Fund to shire such expenses in a similar case, but 8) liter the then subsisting governing case of McConnell v. Comm, of Finance wls decided by this court, which case was overruled in a three to two decision in the Worthen case, insofar as it was inconsistent with the latter decision. E. K. Callister, Jr., Justice R. L. Tuckett, Justice on-the-j- ob ELLETT, Justice: (Concurring in the result) 1, concur in affirming the judgment of the trial court for the simple reason that the appellant has not brought before this court the entire transcript of the testimony presented to the trial court. 1 are as follows: While the certificate of the official court reporter states that it is a full, true, and correct copy of all the testimony, counsel informed us that other witnesses were sworn and examined. The only testimony brought before us by the appellant was his own testimony; and since the court is not obligated to believe a party's testimony as against conflicting evidence, we are not able to say that the holding of the trial court was in error. Sullivan v. Turner, 22 Utah 2d 85, 448 P. 2d 907 (1968). That Worthen v. Shurtleff should not be applied retroactively so as :o the plaintiffs here to recover part of their costs and attorneys' fees permit incident to their independent actions against third-part- y tortfeasors. We with this contention. agree An appellate court must assume that the judgment of a trial court is correct and based upon competent evidence unless the contrary is made to appear. Nielson v. Dennett, 22 Utah 2d 166, 450 P. 2d 93 (1969). Since it does not appear from the record that the judgment of the trial court was in . error, we should affirm it. The main point on appeal and our conclusions with respect thereto The McConnell case, saying that the insurance carrier, which w is not a party to the action against the third-part- y tortfeasor, did not have to shire costs and attorneys' fees under the statute, which required full re:m bursement to the carrier! was then the only case interpreting the ict in volved in not only the Worthen case but the instant cases. Under the pirrcu1. circumstances of the instant cases, we see no reason to indulge ihe i.ction thit the McConnell case never really existed, and that therefore fwrhou: my logic' it wis wasted effort, breath and paper. Since the construction of . statute in the light of existing judicial interpretation (the McConnell case; is the precise issue here, we think and hold that espousing such fiction here simply would amount to judicial legislation. To allay any fears as to the In The Supreme Court Of The State Of Utah ,r matter before us, our decision prospectively will be authoritative. We onclude that the following points urged on appeal either are without merit, or are moot because of our decision reflected in the pre ceding paragraph: That plaintiffs are barred by estoppel, limitation statutes failure to pursue administrative procedures, are not the real parties in interest and laches. . A. Norman Grover, etal. , Plaintiffs and Appellants, No. 11472 Oleen Garn, et al. , Defendants and Respondents. Arthur N. Grover Farms, Inc., a corporation. Plaintiff and Appellant, FILED January 29, 1970 L. M. Cummings, Clerk v. Oleen Garn, et al. , Defendants and Respondents. WE CONCUR: FAUX, District Judge: J. Allan Crockett, Chief Justice E. R. Callister. Jr., Justice R. L. Tuckett, Justice ELLETT, Justice: (Concurring in the result) I concur in the result. If the trial court erroneously adjudged that these plaintilfs pay to defendant more money than was required, the only relief would be by appeal in the several actions then pending and not to pay it under protest and later attempt to recover in a new action under some theory of money had and received. the trial court did not order excess payment and the However, same was voluntarily made, then I do not think paying under protest was of any effect. Each plaintiff should have refused to pay to the defendant more than that which was due, and if an action was required to settle the dispute, the time for that action was before the plaintiffs parted with the money. This case involves the sale and purchase of the Arthur N. Grover dTy farm in Oneida County, Idaho. The purchasers were Oleen Garn and wife, their two sons and their wives. The land, approximately 1, 300 acres, had been raised, over many years, by Mr. and Mrs. Grover and family from sagebrush status to a very productive dry farming operation. On March 3, 1963, the farm was transferred by Mr. and Mrs. Grover from their personal ownership to and made the assets of the newly formed Utah corporation, Arthur N. Grover Farms, Inc. Mrs. Grover (Estella V.) became vice president, holding 45 shares of stock; their daughter. Fay G. Wight, became president, with one share of stock; and Arthur N. , the with 45 shares of stock. father, became secretary-treasure- r, A contract (Exhibit 3) dated the 1st day of October, 1964, appears to cover the sale and purchase alluded to above. The seller is shown to be: Arthur N. Grover Farms, Inc. By: Estella V. Grover if Utah 2d 80. 426 P. 2d 223 (1967). c i ms id not to say tna: mere cannot be decisions that have retroactive effect in a given set of circumstances. T. 19 Aiv.r A. Mawaon, Plaintiff and Appellant, v. FILED J. G. Investment Co. , a No. 11658 January 29, 1970 corporation, Defendant and Respondent. L. M. Cummings, Clerk HENRIOD, Justice: Appeal from a judgment for defendant in an action wherein plaintiff sought removal of a fence erected by defendant on the East boundary of a parcel deeded and used as a roadway. Affirmed, with costs to defendant. The findings of the trial court, supported by the record, show that plaintiff acquired three lots alongside the roadway, together with 15 of the latter, all of which had been deeded to plaintiff's predecessor, then to plaintiff, the 15 interest "to be used as a roadway." This roadway abutted a number of lots to the North and South, and obviously the conveyances of fractional interests thereof to abutting lot owners was intended to be used and was used only for ingress and egress to such lots. They were convey-ant- es of roadway rights, not fee rights, sort of in the nature of dominant estates to which the fee, including underground rights, - in minerals, for example, - was servient. Plaintiff's right to use the roadway was for such purpose of ingress to and egress from any property which he owned along the roadway. Hence his claim in this action that because he had acquired land to the East and beyond the described roadway, he could use such ease Vice-Preside- nt Attest: Arthur N. Grover SecretaT y The Garns signed as the buyers. In the contract the buyers agree to pay to the seller for the land, some water stock and some Taylor Grazing permits the sum of $186, 535 in annual installments of one-ha- lf the income of the farm with a minimum of $10, 000, the balance to draw interest at the rate of 3 per annum. These payments were to be made to Mr. and Mrs. Grover for their personal use. Seller and buyers received their copies of the contract and deeds were deliver by the Grovers, with a signed escrow agreement to the First Security Bank of Utah, Brigham City. On December 31, 1965, a Norman Grover, a son, representing himself as a stockholder in the Grover Corporation, started a class action in the District Court in and for Box Elder County, Utah. The defendants were the Garn family and the Grover Corporation. The action sought to have the contract nullified and to have the farm restored to the Grover Corporation. On February 21, 1966, Arthur N. Grover Farms, Inc., started an action in the same court, civil case No. 10081. The Garns were mad. defendants and were charged with breach of the contract of October 1, 19b4. Termination of the contract and money damages were sought because ot the breach. Many pleadings and cross and counter pleadings were thereafter filed in both cases and many hearings were held. Prior to the 20th day of September, 1967, either by order or by stipulation, the two cases were consolidated for trial. The result was to align the Grovers against the Garns and vice versa. The case proceeded to trial which began nn May 6, 1968, and continued with recesses and trial days until July 17 of that year. The court issued memorandum decisions on October 2, 1968, and on December 18, 1968, formal findings, conclusions and judgment were made and entered which resulted generally in favor of the Garns and against the Grovers. Of particular importance are the conclusions of law that: ... the said Arthur N. Grover, Inc. is but the instrumenwhich the said Arthur N. Grover and Estella V. through tality convenience for transacted their business . . . that Grover, the corporate veil be pierced . . that the said Arthur N. Grover Farms, Inc. , Arthur N. Grover, individually, and Estella V. Grover, individually, are bound as a corporation and as individuals by their contract entered into on the 1st day of October, 1964, and they are estopped from declaring said to be of no force and effect . . . that defend- contract ... i |