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Show FRIDAY. JAM'AKY 22, IWt TNI iAILY RECORD In The Supreme Court CM The State Of Utah IN THE SUPREME COURT OF THE STATE OF UTAH -- .SKI: of Ut-i!:- ooOoo No. 120C1 , l'Jui.V.iff ,u (1 Respondent, FILED January 20, .V'n Rcburt 0'dorwond, Defend jnt and Appellant. 1971 L. M. Cummings, Clerl CALt.lSTFR, Chief Justice: :i of t o.bb'.ry. a jury verdict, of the M. Riding and his wife, ci Ji.wtlry, war robbed by three men, armed with aims, of a sum in excess of $20. 000 in cash and jewelry. Both of the Ridings testified that they had an opportunity to observe defendant and another participant in the tobbery on two pievious occasions, specifically, on each of the two days prior to thf. cs;mc, when the men came into the shop, first to inquire about i ijtcli repair, &m1 the next d.iy to leave the watch. The Ridings identified the victims testified that the defendant at he trial. On hcid a them by members of the of to shown observed group they photographs On A. ..just 27, 1969, the Merit. ' CleaTfield Police Department and that they had identified defendant by his picture. A policeman, Sergeant Green, testified that he investigated the robbery and presented photographs to the Ridings on several occasions in groups of eight to twelve pictures. Counsel for defendant conducted a thorough cross -- examination of Sergeant Green to discover the pror.durt which culminated in th. photographic identification of defendant. On Appeal defendant asserts that it constituted prejudicial error to admit testimony concerning the extrajudicial identification. Defendant concedes that no objection was made to this testimony; neithex did he move to strike the testimony nor in any other way invoke a ruling of the trial court on the admissibility of this testimony. Furthermore, in State v. Owens this court held that such evidence was admissible on the issue of identification. Defendant contends that the trial court committed prejudicial error when it permitted Lt. Lyle Wood, a policeman, to testify as to an admission allegedly made by deiendant. After the preliminary hearing, defendant and Lt. Wood were returning by automobile to Salt Lake City. According to Lt. Wood, (.'elendant turned to him and voluntarily stated: "The charges against m? in S?1t Lake and Bountiful are bum raps. Your charge is the only one that may be good. In th instant cane, a review of the record clearly substantiates that defendant's guilt was conclusively proven by competent evidence and that he was trial. Finally, defendant challenges for the first time the sufficiency of the criminal complaint and warrant of arrest; he asserts that neither states any fart to support the proposition that defendant committed the crime charged. Section 77-16- U.C.A. 1953, provides: -2. 's trill court decreed that Cf.-bct-l cf the water Creek no to the Defendants make attack that belonged plaintiff. upon portion of the decree. In :heir brief as to "The Relief Sought on Appenl" they Jtate that they: proprietors, Merle cross-examinati- on not deprived ct a fair This suit arose from a controversy between the parties over the use of culinary water from a common scarce known as Corbett Creek in Divis County. It appears that in about 1950 pater families, John Hill (now deceased), and the defendant, William Marcus, worked together in con structing a pipeline to convey the water from Corbett Creek in a common pipe to a point of division, and thence in separate pipes to their respective resi dences. Plaintiff contends that this was a project of John Hill and that Mr. Marcus was simply his employee: whereas, defendants say thru it was done under permission given by John Hill to William Marcus to construct the pipeline for their mutual benefit which was accomplished and that there in thus established an easement over the Hill property. Plaintiff's evidence is that after the death of John Hill in 1961, Mr. Marcus became very possessive about the pipeline and their property; that he excavated it with heavy machinery; proceeded to install a plastic pipeline to his home; to claim and take substantially all of the water from Coxbett Creek; and to exercie dominion over plaintiff's land, even though he had never been granted by the plaintiff any permission, license or easement for its use. The Defendant appeals from his conviction, upon irr.. PAGE SEVEN. two-thir- c-- f ds seek reversal of judgment as it pertains to a restraining order prohibiting said defendants from exercising a right ts cf easement across the land of to remove cf the water of Corbett Creek, or, plaintiffs-responden- one-thi- rd that failing, a new trial. The right sought by the defendants to maintain a pipeline across the plaintiff's land would be an easement, and thus an interest in land. It being without dispute that there has been no written conveyance, the defendants' claim would normally be defeated by the Statute of Frauds. 2 Defendants concede the validity of those propositions of law generally, but seek refuge in exceptions wherein courts have held that easements may come into being and be enforced where there has been an oral or implied agreement which has been relied upon and acted upon in performance thereof so that the elements of estoppel are made out. They cite and rely on that doctrine as stated in 1 Thompson, Real Property, Sec. 356 (Perm. Ed. 199): Under the equitable doctrine of part performance, a verbal agreement for an easement has been enforced by some courts. This doctrine applies to all cases in which a court cf equity would entertain a suit for specific performance if the alleged contract had been in writing. If expenditures be made in permanent improvements inuring to the benefit of a licensor under an express oral license given by him, then such license becomes irrevocable, and, if it relates to the use or occupation of real estate, it becomes an ... easement.' have no disagreement with the foregoing 'statement of law as it might be applied under proper circumstances. But the difficulty with the position essayed by the defendants here is that they have not established the foundation prerequisite to the avoidance of the State of Frauds even under the just-quottext statement. There would have to be findings that there was such an agreement; and that there had been part or full performance in reliance therecn. On these matters the evidence is in dispute, and the trial court found against the defendants' contentions. Under the traditional rules of review: that where there is conflict in the evidence we accept it in accordance with the findings of the trial court; and if when so viewed, there is any substantial basis in the evidence to Bupport the trial court's findings they will not be disturbed, the defendants' contention fails. We ed or irregularity in or want or absence of any proan inforceeding or statutory requirement, prior to the filing of No defect Affixmed. mation or indictment, including the preliminary hearing, shall .'.unblitutc prejudicial error and the defendant shall be conclusively presumed to have waived any such defect, irregularity, want or absence of proceeding or statutory requirement, unless he shall before pleading to the information or indictment specifically and expressly object to the information or indictment cn such ground. Costs to plaintiff (respondent). WE CONCUR: E. R. Callister, In accordance with the foregoing provision, defendant has waived the Jr. , Chief Justice R. L. Tuckett, Justice to the alleged defect, since he failed to assert his objection prior to pleading information. TV c judpmcnt of the trial court is affirmed. F. Henri Henriod, Justice WE CONCUR: A. H. Ellett, Justice R. L. Tuckett, Justice Albert Nolan Belt, Plaintiff and Appellant, F. Henri Henriod, Justice v. Wtrlla, petscnally, Albert Nolan Belt, the plaintiff herein, appeals from au guardian for the estates of ! her Patncii Ann Hill, D- - U re. - r.' t. CKC'.KEli. J t. "MAiuiey i. - ! S r d At pellan' s. '!: On October 14, 1968, the plaintiff entered a plea of guilty to the charge of issuing a fraudulent check in the sum of $10 in violation of Section U.C.A. 1953. Thereafter, on October 28, 1968, the court placed plaintiff on probation without the imposition of sentence, one of the conditions being that plaintiff serve six months in the Weber County 76-20-- No. 11939 FILED Jamary?0, '!;it L. M. Cummings, Clerk of his petition for a writ of habeas corpus. r.d children, minors, Pl.iintiff and Respondent, 20, 1971 TUCKETT, Justice: J. Allan Crockett, Justice O-oil- FILED January John W. Turner, Warden, Utah State Prison, Defendant and Respondent. A. H. Ellett, Justice. No. 11936 1971 L. M. Cummings, Clerk 11, lf jail with the proviso that the term be reduced to approximately if the plaintiff were a model prisoner. After the plaintiff's release from confinement and while he was still on probation he violated the order placing him on probation by leaving the state of Utah without permission. On September 25, 1969, the plaintiff was brought before the court to answer ; for the alleged violation. The plaintiff admitted violating the order of pro bation and the court revoked the order and sentenced the plaintiff to serve a one-ha- |