1. The doctrine in
Stringfellow v. Cain, supra, p.
99 U. S. 610,
reaffirmed.
2. The Probate Court of Utah has jurisdiction to determine the
conflicting rights of claimants to lots forming part of the lands
in that territory entered as a townsite under the Act of Congress
of March 2, 1867, 14 Stat. 541, and an appeal may be taken from the
judgment of that court to the district court within one year after
it has been rendered.
3. A judgment will not be reversed for error in excluding
testimony which is cumulative only if it is apparent that if
received it would not affect the result.
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This, like
Stringfellow v. Cain, supra, p.
99 U. S. 610, was a
statutory
Page 99 U. S. 620
proceeding begun in the Probate Court of Salt Lake County, Utah,
to settle disputes between claimants as to their respective rights
to a lot in Salt Lake City purchased by the mayor of the city from
the United States in trust under the Town-Site Act of March 2,
1867, 14 Stat. 541. As doubts were entertained in respect to the
proper manner of bringing it here for review, an appeal was taken
and a writ of error sued out. For the reasons stated in that case,
the appeal is sustained and the writ of error dismissed.
The controversy arises as to the ownership of the south half of
lot 5, block 76, plat A, and the first question to be settled is in
respect to the jurisdiction of the district court on the appeal
from the probate court. The decision of the probate court was given
Nov. 28, 1873, and the appeal taken Feb. 3, 1874. The territorial
act of 1869, regulating the execution of townsite trusts (Comp.
Laws Utah (1876) 381), provides that if either party shall feel
aggrieved at the decision of the probate court, he may appeal to
the district court "as in other cases." In
Golding v.
Jennings, 1 Utah 135, it was decided that there could be no
appeal from the probate court to the district court in a civil
action, because the probate court did not have jurisdiction of such
actions. Here the probate court had jurisdiction of the suit, and
the right of appeal is expressly given. The difficulty is not as to
the right of appeal, but as to the time within which the appeal is
to be taken. The Civil Practice Act of Utah (Comp. Laws (1876) 492)
provides that an appeal may be taken
"from a final judgment in an action or special proceedings
commenced in the court in which the judgment is rendered, within
one year from the rendition of the judgment,"
and "from a judgment rendered on an appeal from an inferior
court, within ninety days after the rendition of the judgment."
This, we think, governs the present case. The provision in the
territorial act relating to the judiciary, approved Jan. 19, 1855,
fixing the time for appeals from the probate to the district courts
at thirty days, is in conflict with the Civil Practice Act in this
particular, and comes within the repealing clause of the latter
act.
Upon the appeal from the probate court to the district court,
"all the testimony and written proofs adduced, together
Page 99 U. S. 621
with the statements of the parties and the judgment of the
court," were certified up as required by the territorial townsite
law. Upon the trial, the district court decided that the execution
of a deed from Orson Pratt to Brigham Young, which was sent up as
part of the written proofs below, had not been sufficiently shown.
For this reason, the deed was excluded as evidence. The district
court also excluded as evidence the answers of Brigham Young, Jr.,
to two interrogatories which had been propounded to him, and also
the answers of Hamilton G. Park to interrogatories propounded to
him. The same thing was done in respect to the answers of Brigham
Young, Sen., to five interrogatories. The excluded testimony of
Brigham Young, Jr., related to the payment of rent for the premises
in dispute to him as agent for his father, Brigham Young, Sen.,
after the claim of Mrs. Pratt, the appellee, had been filed with
the clerk of the probate court. The testimony of Park related to
payment of rent for the lot by one Ellerbach, as agent of Orson
Pratt, to him as the agent of Brigham Young, Sen., from the fall of
1867 to the spring of 1869. The testimony of Brigham Young, Sen.,
related to his purchase of the lot from Orson Pratt in 1861 or
1862, and he also said that he was the owner of the lot with two
tenants on it. Objections to all the testimony which was excluded
had been taken and entered upon the minutes in the probate
court.
Upon the trial in the district court, the facts were found, and
as a conclusion of law judgment was given in favor of Mrs. Pratt.
Brigham Young, Sen., the adverse claimant, moved for a new trial,
because the findings were against the evidence. This motion was
overruled, and he thereupon appealed to the territorial supreme
court both from the judgment and the order refusing a new trial. A
statement of the case was made on these appeals, which included all
the testimony with the exceptions and the entire record of the
proceedings in the district court. The supreme court affirmed
generally the judgment of the district court.
As we held in
Stringfellow v. Cain, when the supreme
court affirms the judgment of the district court upon findings of
fact made by the district court, the supreme court
Page 99 U. S. 622
in effect adopts such findings as its own for the purposes of an
appeal to this Court. We are therefore to consider the case here
upon the facts found by the district court. These findings show
that Sarah M. Pratt, the present claimant and appellee, and Orson
Pratt, settled on the lot in controversy about the year 1854. Mrs.
Pratt erected a house and fences upon the lot, and the two lived
there until 1861, when they went to the southern part of the
territory. After that for several years, Brigham Young, Sen., had
possession of the lot by his tenants, but in 1867 or early in 1868
he told Mrs. Pratt she might have back the south half, and
accordingly she and her family went into possession on the 12th of
March, 1868, and have occupied it as their home ever since. Orson
Pratt has not lived with his wife, Sarah M. Pratt, since March 12,
1868, and he has five other families, four of which are residents
of Salt Lake City. Mrs. Pratt and her children have supported
themselves by their labor and means since March 12, 1868, and have
put improvements on the lot by repairing the house, fencing,
setting out trees, &c. Mrs. Pratt was the head of her family
for ten years previous to November, 1873. No rent has been claimed
of or paid by her since she went into possession, nor by Orson
Pratt or any agent of his since that time. Orson Pratt has not
supported his wife, Sarah M. Pratt, or her family since March,
1868, and has contributed but a very small amount for that purpose.
The townsite was purchased by the mayor, under the provisions of
the Congressional Town Site Act, Nov. 21, 1871. Young filed his
declaratory statement in the office of the probate clerk, Jan. 13,
1872, and Mrs. Pratt filed hers April 9, 1872.
Upon this state of facts, it is clear that the judgment appealed
from was right unless there was error in the rulings as to the
admissibility of evidence. The original occupancy of Orson Pratt
and his wife was abandoned in 1861. Brigham Young then entered into
possession. It matters not, for the purposes of this inquiry,
whether he purchased the possessory rights of Pratt and his wife or
not. They voluntarily left the lot and he took it. Then in 1868 he
gave back the south half to Mrs. Pratt, and she has occupied
adversely ever since. Under the rule settled in
Stringfellow v.
Cain, this gave her
Page 99 U. S. 623
the right to a conveyance under the trust created by the
townsite purchase.
It remains only to consider the several objections to the
rulings upon the admissibility of the evidence. From what has been
said it is clear that the exclusion of the deed was immaterial. As
Pratt and his wife abandoned the possession in 1861, it is of no
consequence whether Young occupied after that as their vendee or as
an adverse possessor. He was in possession claiming title, and they
were out with no apparent purpose of returning. That is all that is
necessary to make his right good as against their previous
entry.
As to the testimony of Brigham Young, Jr., it related to a
payment of rent by Orson Pratt after this proceeding was begun in
the probate court. Of course, that, under the circumstances, could
have no effect adverse to Mrs. Pratt's title.
As to the testimony of Brigham Young, Sen., it was clearly
immaterial or incompetent. That in respect to his purchase from
Pratt was immaterial because his rights prior to his putting Mrs.
Pratt in possession the second time are not disputed. His statement
that he owned the property was incompetent. That depended upon the
facts, and his statement was no more than an expression of his
opinion.
The testimony of Park, so far as it related to the ownership of
the property, was also incompetent, as it was in reality only an
expression of his opinion. As to the collection of rent from Orson
Pratt, he says his collections were made from T. W. Ellerbach, as
the agent of Pratt, and in the testimony of Ellerbach the same
payments are shown, with the manner of payment and his authority as
agent. No possible harm could have resulted from the exclusion of
this evidence. A judgment will not be reversed for error in
excluding testimony which is cumulative only, if it is apparent
that if received it would not affect the result. In this case, the
rejected evidence was all before the supreme court, and was there
considered. In the opinion, it is in effect said that if the
evidence had been admitted in the court below, and if that court
had given it all the force which could be reasonably claimed, the
result must have been the same. Under these circumstances, we must
consider
Page 99 U. S. 624
the case as coming here from the supreme court, with the facts
found upon all the evidence.
Upon the whole case, we are satisfied with the judgment
below.
Judgment affirmed.
MR. JUSTICE BRADLEY did not hear the argument in this case or
take part in its decision.