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Show THE DAILY RECORD PAGE FOUR TUESDAY, Al'KII. :M. iff. In The Supreme Court Of The State Of Utah Sec, Max Hunsaker, Kathleen Hunsaker, Susie M. Hunsaker and Rhea H. Beverly, Plaintiffs and Appellants, 1973 April 9, Incorporated, a Utah corporation, Under the provisions of this statute, it should be presumed that a public highway is of the prescribed statutory width unless the contrary is proven. Plaintiffs urge that the highway was established prior to this 1898 enactment, that it was less than the statutory width and came within the exception provided. They contend that the width of the highway was confined to the traveled; path and to sustain their contention they cite their use of the disputed area. L. M, Cummings, Clerk Defendants and Respondents. Rev. Stat. of Utah, 1898, provided: established or used as speh. FILED The State of Utah, by and through its Road Commission, and Pollard 17, The width of all public highways, except bridges, alleys, feet. . . . prolanes, and trails, shall be at least sixty-si- x be so construed as to vided, that nothing in this title shall increase or diminish the. width of either kind of highway already No. 12854 v. 25-1-11- CALLISTER, Chief Justice: 2 this court declared erroneous an instruction to the jury that the owner's continued possession and use of a strip along the south side thereof was conclusive evidence against its dedication for the use of the public as a highway. This court stated that all the circumstances must be considered in determining the extent of a dedication, such as the width of In Burrows v. Guest, Plaintiffs initiated this action to enjoin defendants from constructing a second lane for traffic on 3500 South in the vicinity of 5300 West in Salt Lake County and to quiet title to the disputed area against the claims of the State Road Commission. Upon trial before the court, a temporary restrain- ing order was dissolved, and a judgment of no cause of action was rendered against plaintiffs; they appeal therefrom. the highways in the vicinity of the land in question, the width of highways in the system of which the one in controversy forms a part, and any circumstances of recognition by the owner of the fee and the public of fixed and definite limits. This court observed that the continued use of the land by the plaintiff was not, as a matter of law, inconsistent with the easement created by the right of way as a highway, since the owner of the fee has the right to use the land in any way that is not inconsistent with the requirements of the public. Plaintiffs are the fee title owners of a parcel of land upon which there is situated a building known as Hunsaker Market. The northern boundary of plaintiffs' land is the center line of 3500 South, which is also a section line. The disputed area, which is 16 12 feet wide, is located immediately south of the asphalted traffic lane and north of plaintiffs' store. The State claims a d easement for highway purposes over plaintiffs' land, while plaintiffs urge the easement is confined to one rod and the State must condemn the additwo-ro- In the instant action plaintiffs' use of the area for parking purposes was not inconsistent with the public use of the area for sidewalks, utility tional footage. lines and poles, sewer and water lines, highway drainage facilities, and a shoulder adjacent to the traveled way. Furthermore, the evidence of the use of The record indicates that plaintiffs' building was constructed in the 1920's and that the disputed area was utilized by plaintiffs and their predecessors the disputed area frmthes1920's onward by plaintiffs and their predecessors does not rebut 'thptesiimed statutory width of 66 feet for a highway which was in interest. For many years there were pumps from which gasoline was disin effect at the time of the issuance of the patent in 1908. were removed in the thereafter the area served as a 1950's; tributed; they parking lot for customers of the market. The evidence from the State indicated that it had installed and maintained a highway drain in the area and stacked snow removed from the highway, as well as permitting a sewer line. The exact point in time at which 3500 South became a highway is unknown; however, the record indicates that there was a center line survey made in 1853. The road was first paved about 1915 and was 20 feet wide; in 1956 it was widened to 33 feet. The original patent to plaintiffs' predecessors was issued January 30, 1908, and provided that it was subject to any easement or right of way of the public to use such highways as may have been established according to law over the same or any part thereof. This court.hq reiterated that where the public has acquired the right to a public highway by user, they are not limited to such width as has been actually used. The use carries with it such use as is reasonably necessary for the public easement of travel. In Meservey v. Guilliford4 the court observed that a statute which establishes the width of a highway should be considered as a declaration of the width that is reasonably necessary for the convenience of the public generally. The trial court found that the fence lines in the vicinity enclose a roadfeet in width, the fences being 33 feet from the center line on either side of the road, both to the east and west of plaintiffs' property. The trial court further found that the usual width of highways in the area was 66 feet; and that within the memory of the oldest witnesses, who testified, the fences had existed as now situated. See 1 Elliott, Roads and Streets (4th Ed.), Sec., 430, p. 493; Meservey v. Guilliford, 14 Idaho 133, 93 P. 780 (1908). 1. 2. 3. 13 way 66 Utah 91, 98, 99, 12 P. 847 (1886). Jeremy v. Bertagnole, 101 Utah 1, 11 6 P. 2d 420 (1941); Whitesides v. Green, Utah 341, 44 P. 1032 (1896). 4. 5 Note supra. 1, Even without the statutory presumption as to the width of the highway, the evidence in the instant case concerning the location of fences and the usual width of the highway in the vicinity is sufficient to sustain the determination of the trial court. The judgment of the trial court is affirmed. No costs awarded. The trial court ruled that the State had a right of way for highway purwas 33 feet in width across plaintiffs' property. The trial court which poses, concluded that the highway was in existence prior to the issuance of the patent in 1908; that the patent was issued subject to existing right of way for highway purposes; that the law at the time the patent was issued had established a minimum width of 66 feet for highways; therefore, the south 33 feet of the highway as it crossed over plaintiffs' land was, in fact, dedicated to public use. On appeal, plaintiffs contend that thrfre was no evidence that they or their predecessors in interest ever intended to dedicate and abandon to the use of the public the disputed strip: and, in fact, they retained and used the area for service station and parking lot purposes in connection with the business conducted on the WE CONCUR: F. Henri Henriod, Justice Ellett, Justice A. H. J. Allan Crockett, Justice premises. There was evidence of the early origin of the highway which was a connecting route between Salt Lake City and Magna and points west. At one time the highway was designated as pa ft of the Lincoln Highway. Tuckett, Justice R. L. Financing Statements 605 - Properties West, 3190 3500 S. Grngr to MFT Leas; W. machn Thrft; furn 606 - Jobber Sales & 367 Paxtn Ave SLC to Service, MFT Leas; equip - properties West, 3190 3500 S. Grngr to MFT Leas; 607 W. machn 9325 S. 170C Inc., jrdn to "FT Leas; equip; W. 613 - Klub broadcasting Div., 1550 w. 220 N. SLC to Farmrs State' 6U furn Bk; - llexad Ave. Assoc., 2131 Prkway State Bk; to Frinrs SLC furn SLC 686 - Byron A. Young, 2838 LeMay Ave SLC to Vly Bk & 616 - Trst boat to Vly !ik 6: Irst Co; 618 - Harkins Constrctn Co, 10044 S. Elent Dr. Sndy to Cen turv Equip Co; machn 671 - Gene Godfrey, 6441 S. 13lh E. SLC to Foulger Equip Co; comprsr "Brown & iwitchell, Xewhse Bldg SLC to Frst -- rk of it; accnts receiv 560 Secur Trst Co; inven - Wicks "N" Sticks, 6271 Fashion Pi. Mry to Frst City Natnl Bk; Persnl prop 702 - Chatrl Suckchanchai, W. 5275 S.SLC to Wkr Bk & Trst Co; empr 689 - Gordon P. Jensen, Bntfl to Centry Equip Co; tretr 691 - - 123 Portable idea machine Built-i- n 692 - David F. Gage, 3828 S. 2215 E.SLC to Wkr Bk & Trst Co; State 715 Max G. Mry to trlr 694 - Arizona Fuels, Inc., 159 E. 3900 S. SLC to Wkr Bk & Trst Co; trlr 695 - Bill Landures, 7644 W. 3430 S. :gna to Wkr Bk & Trst Co; empr 696 - Niel Richins, 5273 S. 5240 W. Krns to Wkr Bk & Trst Co; empr 699 - Loren D. Lloyd, 470 Wendl SLC to Wkr Bk & Trst Co; empr 716 element finger-ti- p control Weighs less than 20 ounces Automatic sound level control main' tains best record volume Schmidt, 5250 Merchants Inc; - William S. Lanier, 280 to Fidel Indus microphone with icparate k Holds 30 minutes of dictation on idea capsule - Janco Discount, Inc., S. Rdwd Rd SLC to Frst Secur State Bk; inven furn 693 - Arizona Fuels, Inc., 159 E. 3900 S. SLC to Wkr Bk & Trst Co; Easy to Docktr Pet Cntrs; equip 714 3535 Ruset Raymond R. Wiseman, Vly Fr Shop ing Centr Grngr Richard D. McCollln, 65 SLC to Wkr Bk &. Trst Co; boat W. New Norelco 88 play-bac- 704 Belt 6 Nut Co. 65 Senior Wav SLC 697 - Hillview Distributing Co; 555 W. 4500 S. SLC to Wkr Bk 703 boat 615 - Lake view Body Shop, 2400 S. Highway 91 Untfl to Frmrs StJte Bk; empr 670 - Hazel Johnston, 333 Trly to Hallmrk Crds Inc.; Sqr equip 679 Co; 608 - Fabco, .I. 676 - David & Sue Russo, 4076 Acrd Way SLC to Peoples Frst Fast, accurate index . . . idea finder Operates on one inexpensive 9 volt battery S 14 W. SLC Handsome Leather pouch Crdt Co; hhg 721 - Stanley R. 1810 S. Main SLC Margie Jonet to Centry & of Main; hhg Fin Co 722 - Lewis Glen & Bonnie 2819 S. 8950 W. Mgna Campbell, to Genrl Crdt Co; hhg 727 - Hyrum R. Moulton, 6845 Grnfld Way SLC to Aetna Fin Co; hhg 728 - Ricky L. 9th S. hhg SLC Aragon, 415 E. to Aetna Fin Co; KEY BUSINESS MACHINES . 21 KELSEY AVE. Salt Laka City, Utah 84110 TELEPHONE (801) In Ogden Call 397-74- 322-228- 4 j |