3. ADVERSE POSSESSION-HOSTILE CHARACTER OF POSSESSION-EVIDENCE. Evidence, in an action on a covenant of warranty, considered, and held to warrant the finding of the trial court that a corporation had acquired title by adverse possession or prescription to a part of the land conveyed under the covenant of war ranty.1 (Page 9.)

4. APPEAL AND ERROR-REVIEW-FINDINGS OF COURT-SUFFICIENCY OF EVIDENCE. On review of a law case, where all of the findings of the court are supported by both facts and inferences, the appellate court is not authorized to disturb the findings. (Page 9.)

5. ADVERSE

BE

POSSESSION-AGAINST WHOM PRESCRIPTION MAY CLAIMED "FOR OTHER PURPOSES." Comp. Laws, 1907, section 2856, provides that the state is barred from bringing an action for the recovery of real property, unless such action is commenced within seven years. Section 2866x provides that no person shall be allowed to acquire any right or title in or to any lands, held by any town or city "designated for public use as streets, lanes, avenues, alleys, parks, public squares, or for other purposes, by adverse possession for any length of time whatsoever." Section 2884 provides that limitations which apply to actions generally also apply as against the claims of the state. Held, that the phrase "or for other purposes," in section 2866x, must be limited to things ejusdem generis with the property especially named, and that the city board of education may lose title to property by adverse possession that is not used for school purposes, but held for sale as business property." (Page 10.)

6. MUNICIPAL CORPORATIONS-PROPERTY-PURPOSES FOR WHICH ACQUIRED. A public corporation may hold property in a private, as well as in a governmental, capacity." (Page 11.)

APPEAL from Third District Court, Salt Lake County. Hon. M. L. Ritchie, Judge.

Action upon a covenant of warranty. From a judgment for plaintiff, defendant appeals.

1 Toltec Ranch Co. v. Babcock, 24 Utah 183-191, 66 Pac. 876. Nephi Plaster & Mfg. Co. v. Juab County, 33 Utah 114, 93 Pac. 53, 14 L. R. A. (N. S.) 1043.

Ogden 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.

AFFIRMED.

Messrs. Moyle & Van Cott for appellant.

C. S. Varian for respondent.

APPELLANT'S AUTHORITIES.

In order that possession may be adverse it must be under a claim of title exclusive of any other right. (McCracken v. San Francisco, 16 Cal. 591; Unger v. Mooney, 63 Cal. 586.) Adverse possession to perfect the bar of the statute must be occupation under claim of title with knowledge and acquiescence of the other party. (American Company v. Bradford, 27 Cal. 360-66; Foulkner v. Rondoni, 104 Cal. 140-46; Dignan v. Nelson, 26 Utah 186; Colvin v. Republican Valley Land Association [Neb.], 36 N. W. 361; Ewing v. Burnet, 11 Peters 41; Probst v. Presbyterian Church, 129 U. S. 643; Compiled Laws of Utah 1907, sections 2864 and 2866; English v. Openshaw, 28 Utah 241; Salt Lake Investment Co. v. Fox, 32 Utah 301; Allen v. McKay & Co., 70 Pac. 8; Sedgwick and Wait on Trial of Title to Land, sec. 729; Jackson v. Thomas, 16 Johnson 293.) A title by adverse possession cannot be acquired against the appellant, it being a public corporation and holding said property in trust for school purposes. (Board of Education v. Martin [Cal.], 28 Pac. 799; Charlotte v. Pembroke Iron Works, 82 Me. 391; Ballard on Real Property, vol. 1, sec. 31.) Section 1912 of the Compiled Laws of Utah, 1907, constitute the Board of Education, a body corporate. See also sections

1892 and 1893.

RESPONDENT'S AUTHORITIES.

Where there has been an actual possession, and the occupant has acted from the beginning as owners do, there is a just presumption that he was holding as owner, and inconsistently with the idea of title in any other than himself.

(Davis v. Bowmar. 55 Miss. 671-742; Sedgwick & Wait on Title to Land (2d Ed.), sec. 758; Brummagin v. Bradshaw, 39 Cal. 46; Brown v. Volkening, 64 N. Y. 82; Toltec Ranch Co. v. Babcock, 24 Utah 191-2; Talburt v. Singleton, 42 Cal. 395; Newell on Ejectment, 429, sec. 2; Wolf v. Baldwin, 19 Cal. 314; Angel on Limitations [6 Ed.], sec. 390; Needham v. City, 7 Utah 319.) Intention to claim as owner in derogation of the rights of the true owner need not be expressed but may be inferred from the manner of occupancy. (Convers v. Kenan, 4 Ga. 308, 48 Am. Dec. 226; Dean v. Goddard, 55 Minn. 290.) And permanent valuable improvements made upon the land and used by the claimant would tend to show an intention to hold adversely. (Hamil ton v. West, 63 Mo. 93; 1 Am. & Eng. Ency. of Law [2d Ed], p. 826.)

The Board of Education held the property in its proprietary capacity with the power of alienation and was subject to all the liabilities of private ownership. (Compiled Laws of Utah, sections 1912 and 1913; Hoadley v. San Francisco, 50 Cal. 265; Wood on Limitations [2d Ed.], sec. 53; Dillon on Municipal Corporations [3d Ed.], sec. 688; Sedgwick & Wait on Trial of Title to Land [2d Ed.], 611, sec. 753-A; Shelby Co. v. Bickford, 102 Tenn. 395, 52 S. W. 772; School Directors v. George, 50 Mo. 194; Cincinnati v. Evans, 5 Ohio St. 594; Hartman v. Hunter [Ohio], 46 N. E. 577; Cincinnati v. First Presbyterian Church, 8 Ohio 299; May v. School District [Neb.], 34 N. W. 377; Bannock County v. Bell [Idaho], 65 Pac. 710; Kennebunck Port v. Smith, 22 Maine 445; Evans v. Erie County, 66 Pa. St. 222; Johnson v. Black, 103 Va. 477; Metropolitan R. R. v. Dist. of Columbia, 132 U. S. 11-12; Boone v. Burlington R. R., 139 U. S. 693. See also 19 Am. & Eng. Ency. of Law [2d Ed.], p. 191; Ogden City v. Bear Lake R. W. W. & I. Co., 16 Utah 453; Ogden City v. Water Works Co., 28 Utah 42.) The statute of limitation applies to actions brought by or for the State in the same manner as to actions by private persons (Compiled Laws of

Utah, secs. 2856-2884.) No distinction is found in most of the decisions, under such a statute, between the actions brought in the State's sovereign capacity and those brought in its private capacity; but all are alike held to be within its terms. (Schneider v. Hutchinson [Ore.], 57 Pac. 324; Directors v. George, 50 Mo. 194; Green v. Irving, 54 Miss. 450; People v. Rector Trinity Church, 22 N. Y. 44; Wyatt v. Tisdale, 97 Ala. 594, 12 So. 233; Price v. Jackson, 91 N. C. 14; Atty.-Gen. v. Cooper Co., 152 Mass. 447, N. E. 605.)

As the exemption of the municipal corporation is based upon the exemption of the sovereign, it would seem that the waiver by the State extends to its creature. But there is a line of authority, as in California, holding that such statutes have no application concerning property held by the State without power of alienation-that is to say, for public purposes only. (Hoadley v. San Francisco, 50 Cal. 265; People v. Pope, 53 Cal. 437.)

FRICK, J.

This is an action upon a covenant of warranty. The appellant is a public corporation, and as such held, occupied, used, and sold the premises hereinafter referred to. The evidence tended to establish that the premises in question for many years had been used for public school purposes, but that for ten or fifteen years immediately preceding the transactions involved in this case they had been abandoned for such purpose for the reason that they were more suitable for other purposes, and were held for sale by appellant, and were finally sold by it, as will more fully appear hereafter. The additional facts necessary to a full understanding of the points raised by appellant are fairly reflected in the findings of the court, as follows: That on the 1st day of July, 1905, the appellant, for a valuable consideration, sold, and by warranty deed conveyed to one Fred A. Rosenfeld, certain particularly described real estate in Salt Lake City; that said deed was in statutory form, and in which the

grantor covenanted that it was lawfully seized; that it had good right and authority to convey; that the premises were free from incumbrances, and it warranted the title as against claims generally; that thereafter on the 3d day of July, 1905, the said Rosenfeld, by warranty deed, duly conveyed the premises in question to the respondent; that at the time the premises were conveyed by appellant to Rosenfeld there was situated on the westerly end thereof a portion of a two-story brick building, covering a space of ten and one-half by sixteen feet, which building was claimed and occupied by a certain corporation; that the premises had been used, held, and occupied by said corporation "continuously, openly, notoriously, peaceably, and adversely against all the world, under claim of right for more than twenty years next preceding the 1st day of July, 1905, for educational and charitable purposes;" that said building had been erected more than twenty years prior to the 1st day of July, 1905, and had stood upon the place mentioned above during all of said time; that during all of said time no taxes had been assessed or levied for any purpose against said building or ground upon which said building was standing; that on the 12th 12th day of February, 1906, the respondent negotiated a sale of the premises conveyed by appellant appellant to Rosenfeld, and by him conveyed to respondent, to one Doyle, but that said Doyle refused to complete his purchase of and to accept the property aforesaid, without the relinquishment of the right of the corporation aforesaid to the portion of the premises upon which said building stood, and of which said corporation was in possession and occupation, as aforesaid; that said corporation claimed title and right to said premises by prescription; that the respondent, in order to make and complete the sale of said premises to Doyle, and to clear the same from the claim of said corporation, was compelled to pay and did pay to said corporation the sum of $150, for the relinquishment of its right and claim in and to said premises, after which payment said corporation relinquished its right to the same to Doyle; that said sum