HUNSAKER v. HARRIS. No. 2071. Decided January 24, 1910 (109 Pac. 1.) 1. FORCIBLE ENTRY AND DETAINER-STATUTORY PROVISIONS. Comp. Laws 1907, sec. 3586, prescribing a special time for taking proceedings for appeal in forcible entry and detainer, is valid. (Page 227.) 2. APPEAL AND ERROR-TIME WITHIN WHICH TO TAKE PROCEEDINGSFORCIBLE ENTRY AND DETAINER. Comp. Laws 1907, sec. 3586, relating to forcible entry and detainer, provides that either party may appeal within ten days from judgment, and section 3587 declares that the provisions of the Code relating to the appeals, so far as not inconsistent with the chapter, shall apply to proceedings thereunder. Held, that the time within which proceedings must be taken was that prescribed in said section 3586, and not the general provision contained in section 3301. (Page 227.) 3. APPEAL AND ERROR-TIME FOR TAKING PROCEEDINGS-DISMISSAL. An appeal in forcible entry and detainer not taken within the time prescribed will be dismissed. (Page 228.) Appeal from District Court, First District; Hon. W. W. Maughan, Judge. Action by Israel Hunsaker against Adolph Harris, Judgment for defendant. Plaintiff appeals. APPEAL DISMISSED. J. D. Call for appellant. T. D. Johnson and C. E. Foxley for respondent. STRAUP, C. J. This is an action brought in the district court for forcible entry and detainer. Upon a trial of the issues a motion of nonsuit was granted and a judgment rendered on the 4th day of March, 1909. The judgment was entered on the day following. It does not appear that a motion for a new trial was made. The judgment of nonsuit, therefore, became final on the 5th day of March, 1909. On the 24th day of June, 1909, a notice of appeal was served and filed by the plaintiff, appealing from that judgment to this court. A motion is here made to dismiss the appeal on the ground that the appeal was not taken within time. By our Code of Civil Procedure the rights and remedies in an action of forcible entry and detainer are defined and the procedure prescribed. It is there provided (section 3586, Comp. Laws 1907) that "either party may, within ten days, appeal from the judgment rendered." It is further provided that execution of the judgment shall not be stayed unless an undertaking, as by that section provided, be made and filed within ten days. By the succeeding section of the forcible entry and detainer chapter it is provided that "the provisions of this Code relating to civil actions, appeals, and new trials, so far as they are not inconsistent with the provisions of this chapter, apply to the proceedings mentioned in this chapter." The Code, relating to appeals in civil ac tions in general (section 3301, Comp. Laws 1907), provides that an appeal may be taken within six months from the entry of the judgment or order appealed from. If the appellant was entitled to prosecute the appeal under the provisions of section 3301, the appeal was taken in time. If he was required to prosecute the appeal under the provisions of section 3586, it was not in time; the appeal not having been taken until 111 days after the entry of the judgment. We think he was required to prosecute the appeal under the latter section and within ten days from the rendition of the judgment, or, at least, within ten days from the entry of it. The manner of taking appeals is statutory. The Legislature fixed a period of ten days within which an appeal may be taken from a judgment rendered in an action of forcible entry and deatiner. It undoubtedly had the power to prescribe such a time. A party desiring 1, 2 to appeal from a judgment rendered in such an action is required to take and perfect it in the manner prescribed by the special statutory provision relating to the subject of forcible entry and detainer. The provisions of the Code as to ordinary cases of appeal, so far as they are inconsistent with the special statutory provisions relating to the subject, have no application to such cases. (Hastings v. Hennessey, 52' Mo. App. 172; Hadley v. Bernero, 103 Mo. App. 549, 78 S. W. 64; Slaughter v. Crouch [Ky.], 64 S. W. 968; Audubon Hotel v. Braunig, 119 La. 1070, 44 South. 891; Saxton v. Curley, 112 Ill. App. 450; Getty v. Miller, 10 Colo. App. 331, 51 Pac. 166.) The appeal not being in conformity with such provisions, it follows that we have no jurisdction of the case, and that the appeal must therefore be dismissed, with costs. Such is the order. FRICK and MCCARTY, JJ., concur. 3 APPEAL MURPHY v. PAUMIE. No. 2075. Decided January 24, 1910 (109 Pac. 10). AND ERROR-TIME FOR TAKING PROCEEDINGS-DISMISSAL An appeal in forcible entry and detainer not taken within the time prescribed will be dismissed. (Page 229.) Appeal from District Court, Third District; Hon. T. D. Lewis, Judge. Action by C. E. Murphy against C. Paumie. Judgment for plaintiff. Defendant appeals. DISMISSED. C. S. Patterson for appellant. James Ingebretsen for respondent. STRAUP, C. J. This is an action of forcible entry and detainer. The judgment was rendered and entered in the district court on the 29th day of January, 1909. It is not made to appear that a motion for a new trial was made. An appeal to this court was taken from the judgment on the 20th day of July, 1909. A motion was made to dismiss the appeal on the ground that it was not taken in time. On authority of the case of Hunsaker v. Harris (just decided) 109 Pac. 1, 37 Utah, 226, the motion is granted. The appeal is, accordingly, dismissed, with costs to respondent. It is so ordered. FRICK and MCCARTY, JJ., concur. YOUNG v. HYLAND. No. 2047. Decided January 27, 1910 (108 Pac. 1124.) Where the owners of ad 1. BOUNDARIES-ACQUIESENCE-EFFECT. joining lands occupy their respective premises up to a certain line, which they recognized and acquiesced in as the boundary line for a long period of time, they and their grantees may not deny that the boundary thus recognized is the true one.1 (Page 234.) 2. BOUNDARIES-ACQUIESENCE-EFFECT. The practical location of a boundary line may be established either by an express agreement or by acquiescence without surveys, and the practical location so fixed may be in accordance or in conflict with a prior or subsequent official survey, and, when a tract is laid off into city lots, the land 1 Holmes v. Judge, 31 Utah 269, 87 Pac. 1009; Moyer v. Langton, 37 Utah 9, 106 Pac. 508; Rydalch v. Anderson, 37 Utah 99, 107 Pac. 25. owners may subsequently adopt a line as the boundary line, and recognize it as the boundary line. (Page 234.) 3. BOUNDARIES-ACQUIESCENCE-EFFECT. Where a boundary is open and visible, marked by monuments, fences, or buildings, and is knowingly acquiesced in for a long term of years, the law will imply an agreement fixing the boundary as located, and will not permit the parties or their grantees to depart from such line.2 (Page 235.) 4. BOUNDARIES-ACQUIESCENCE-CONSTRUCTION OF DEED-LAND CONVEYED. A deed of a part of a lot in a designated survey, which describes the part as beginning at a point eighty-nine and seventy-six hundreths feet west of the southeast corner of the lot, and running thence west to the line of a street, thence north thirty-four and sixtenths feet, thence east a specified distance, and then south to the place of beginning, makes the south line of the tract conveyed the south line of the lot, and the boundary line between the lot and the adjoining lot as established by acquiescence is the boundary of the part of the lot conveyed. (Page 237.) 5. BOUNDARIES-ACQUIESCENCE. Where, as between adjoining landowners, a practical boundary line was agreed on or acquiesced in for a long time, and all persons interested occupied up and claimed to the line, the line as between the landowners was the boundary line; and neither of the landowners or their grantees could depart therefrom and claim beyond it. (Page 237.) Appeal from District Court, Second District; Hon. J. A. Howell, Judge. Action by Joseph T. Young against Elma Hyland. Judgment for defendant. Plaintiff appeals. REVERSED AND REMANDED FOR NEW TRIAL. J. D. Skeen for appellant. C. R. Hollingsworth for respondent. STRAUP, C. J. This case arose over a disputed boundary line. The ap pellant, who was the plaintiff below, owns a parcel of land in Ogden City, situate in the southerly portion of lot 10, 2 Holmes v. Judge, 31 Utah 281, 87 Pac. 1014. |