of $150, so paid as aforesaid, was reasonable; that in negotiating and in procuring the relinquishment aforesaid from said corporation, respondent was necessarily required to employ an attorney, and the services rendered by him were of the reasonable value of $75; that respondent duly notified the appellant of the claim of said corporation to the portion of the premises aforesaid, and demanded from appellant that it comply with its covenants of warranty, which appellant refused to do; that the respondent before the bringing of this action demanded of appellant the said sums of $150 and $75 paid by respondent as aforesaid. Upon the foregoing facts the court based its conclusions of law that respondent was entitled to judgment for the sum of $225, and entered judgment accordingly, from which this appeal is prosecuted.

Counsel for appellant have limited their argument to two questions: (1) That the finding of adverse possession is not supported by the evidence; and (2) that, although it be held that the finding is so supported, the doctrine of acquiring title by adverse possession or by prescription is not applicable to the facts in this case. It is therefore asserted that the appellant is not liable to respondent as for a breach of the covenants of warranty. As to the first proposition, it is asserted that the evidence discloses that the officers of the corporation which was in possession of the portion of the ground did not claim any right or title to the premises on behalf of such corporation, that the possession was a mere passive one, and that such a possession was not sufficient to enable said corporation to acquire title by adverse possession or prescription. It may be conceded that a mere passive possession, without intending to claim the property, is insufficient, regardless of the length of time such a possession continues, or however open, notorious, or exclusive it may have been. This is so because such a possession is not adverse to the rights and title of the real owner. It is not the mere possession that determines the rights of the parties, but it is the character of the possession

1

2

that controls. But how is the character of the possession to be determined? It cannot always be determined from the declarations of the party in possession, because he may not make any, nor are his declarations always conclusive as against one claiming under him. Whenever the possession is of such a character that ownership may be inferred therefrom, then the possession ordinarily may be presumed to be hostile to the rights of the true owner; that is, if a party places permanent structures upon the land belonging to another, and uses the land and structures the same as an owner ordinarily uses his land, then, in the absence of something showing a contrary intention, a claim of ownership may be inferred in favor of the party in possession. The controlling facts in this case are that the corporation which was in possession built a permanent structure upon that portion of the land in question in 1883, and continuously used and treated the land and structure as its own. Moreover, when the respondent directed the attention of the corporate officers to the fact that the building encroached upon respondent's land, they did not admit that the corporation was a trespasser and had no rights in the premises. True, they did not, in so many words, declare that the corporation claimed and held an undisputable title to the strip of ground, but they did in effect say that they desired to defend whatever claim the corporation might have acquired by virtue of its possession and use of the building and ground upon which it stood. Further, the officers of the corporation clearly indicated a claim of right by asking compensation for removing that part of the building extending onto respondent's land. By doing this they virtually denied that the corporation was a trespasser, and this declaration necessarily implied that the corporation was in possession under some claim of right. If the corporation claimed no rights in the premises, then it was a mere trespasser, and was committing a wrong by remaining in possession of land belonging to another. By demanding compensation, the corporation disputed the rights of respondent and made a claim

3

to the premises which could only have been settled amicably by the parties, or in a court of justice in the same way that all disputes are ultimately adjusted. In view of all of the facts and circumstances, the finding of the trial court that the corporation had acquired title by adverse possession or prescription was, in our judgment, justified in view of the ruling announced by this court in Toltec Ranch Co. v. Babcock, 24 Utah 183-191, 66 Pac. 876. The facts, we think, also bring the case within the doctrine announced in the following cases: Talbert v. Singleton, 42 Cal. 395; Wolf v. Baldwin, 19 Cal. 314; Conyers v. Kenan, 4 Ga. 308, 48 Am. Dec. 226; Dean v. Goddard, 55 Minn. 290, 56 N. W. 1060; Hamilton v. West, 63 Mo. 93.

The claim that the parties finally settled for an amount less than the actual value of the strip of land, even if conceded, is not necessarily controlling. This fact, if it be a fact, was merely a circumstance to be considered by the court in connection with all the other facts in the case. The corporation could relinquish its claim for any amount which was satisfactory to it, regardless of the true value of the land, and regardless of the character of its title. The fact that the corporation claimed a right in and to property which it would not relinquish except for a valuable consideration was one of the material elements in the case. The other and controlling element was whether the claim of the corporation to the premises in question was of such a character that it could, under the law, successfully resist the claims of all others to the strip of ground of which it was in actual possession. In view of the fact that this is a law case, and that all the findings of the court are supported by both facts and inferences, we are not authorized to disturb the findings.

4

With regard to the second contention, it is asserted that, although it be conceded that both the time during which and the character of the possession were sufficient when applied to real property generally, nevertheless the doctrine of adverse possession has no application because the property

in question was held by appellant as a public corporation, for a public use, namely, for school or educational purposes. It may be conceded that, as a general rule, adverse or prescriptive rights cannot be acquired as against the sovereign, and further that the ordinary statutes of limitation, unless they contain some express provision to that effect, are ordinarily held not to apply as against a sovereign State. It is further held by some courts that, where they do not apply against the sovereign, they do not apply as against governmental agencies, in so far as such statutes are attempted to be invoked in matters pertaining to governmental duties or affairs. By other courts it is held that statutes of limitation do apply against governmental agencies such as cities, towns, counties, and other public corporations, although such statutes may not apply as against the sovereign State itself. But it is not necessary either to review the authorities, or to determine which one among the various rules adopted by the courts is the most reasonable, in view that the whole matter is regulated by the statutes of this State, as we construe them. Section 2856, Comp. Laws 1907, in substance provides that the State is barred from bringing an action for the recovery of real property claimed by it, unless such action is commenced with seven years. Section 2884 provides that the limitations which apply to actions generally also apply as against the claims of the State. If therefore the statutes of limitation, both with regard to actions for the recovery of real property and the vindication of any other right, are expressly made applicable as against the sovereign State, then there would seem little room left for the contention that such statutes do not also apply as against the agencies of the State. But here again the Legislature has spoken. Section 2866x provides that:

5

"No person shall be allowed to acquire any right or title in or to any lands held by any town or city, or the corporate authorities thereof, designated for public use as streets, lanes, avenues, alleys, parks, public squares, or for other purposes, by adverse possession thereof for any length of time whatsoever."

In enacting the foregoing sections, the Legislature apparently made an exception in favor of towns and cities, but limited the exception to property devoted to the particular purposes named. The phrase "or for other purposes," under familiar rules of construction, must be limited to things ejusdem generis with the property specially named; that is, of the same class or kind. (Nephi Plaster & Mfg. Co. v. Juab County, 33 Utah 114, 93 Pac. 53, 14 L. R. A. [N. S.] 1043.) Even as to the cities and towns therefore the exception only applies to property which is devoted to a special public use. It has frequently been held that an interference with or encroachment upon property devoted to such a use would constitute a nuisance, and for that reason many courts have held that prescriptive rights cannot be acquired thereto or therein. See 2 Dillon, Mun. Corp. (4 Ed.), secs. 669675, where the doctrine is fully discussed. It is obvious, however, that cities and towns may hold real property not specially devoted to public use, and therefore may hold it in a capacity not necessarily governmental. To property so held the exception does not apply. That a public corporation may hold property in the nature of a private, as well as in a governmental, capacity, is a well-reeognized doctrine, and has been adopted by this court. (Odgen City v. Bear Lake, etc., Co., 16 Utah 453, 52 Pac. 697, 41 L. R. A. 305; Ogden City v. Waterworks Co., 28 Utah 42, 76 Pac. 1069; Brown v. Salt Lake City, 33 Utah 222, 93 Pac. 570, 14 L. R. A. [N. S.] 619.) If we should assume, however, that the appellant held the title to property which is exclusively devoted to public school purposes, in a governmental capacity, yet, in view of the facts of this case, the property in question could not be held to come within the class of such property, because it was not so held. Under the authorities last above cited, the property in question would fall within the class which is said to be held in a capacity other than a governmental one. The property in question was not, and for many

6