RIO GRANDE WESTERN RAILWAY COMPANY v. STRINGHAM et al.

No. 2211. Decided May 6, 1911. Rehearing Denied May 29, 1911 (115 Pac. 967).

APPEAL AND ERROR-JUDGMENT ON REMAND-CONFORMITY. Where the Supreme Court remanded a cause, with directions to enter judgment awarding plaintiff railroad title to a right of way, a decree adjudging that plaintiff was the owner of a right of way (describing it), etc., conformed to the mandate, though it did not adjudge plaintiff to be the owner "in fee simple" of the right of way described. (Page 237.)

APPEAL from District Court, Third District; Hon. C. W. Morse, Judge.

Action by the Rio Grande Western Railway Company against Thomas B. Stringham and others.

From the judgment, plaintiff appeals.

AFFIRMED.

Van Cott, Allison & Riter for appellant.

A. Duncan and N. W. Sonnedecker for respondents.

MCCARTY, J.

Plaintiff, the appellant, here, brought this action to quiet title to a right of way two hundred feet in width for a railroad track through certain lands belonging to defendants. Judgment was rendered dismissing plaintiff's complaint for want of equity, except as to twelve and one-half feet on each side of the track. To reverse the judgment, plaintiff appealed to this court on the judgment roll. This court reversed the judgment and remanded the cause to the district court, with directions to that court to vacate its conclusions and judgment theretofore made and entered, and "to make conclusions and render and enter judgment award

ing to the plaintiff title to a right of way over the lands in question one hundred feet wide on either side of the center of the track." For a more detailed statement of the facts, we invite attention to the opinion as published in 38 Utah 113, 110 Pac. 868.

On receipt of the remittitur from this court, the district court vacated its conclusions of law and judgment theretofore made, rendered, and entered, and in pursuance of the decision and order of this court found as conclusions of law: "(5) That the plaintiff is entitled to a decree quieting its title to a right of way over the premises described to the extent of one hundred feet on each side of the center of the track." The judgment entered recites, so far as material here, that "by virtue of the law and the matters aforesaid it is hereby ordered, adjudged, and decreed: That the plaintiff is the owner of a right of way over the following described premises, situated in Salt Lake County, State of Utah: (Then follows a description of the right of way in question.) That the title of the plaintiff to such right of way is good and valid, and the defendants are forever enjoined and debarred from asserting any claim whatever in or to said land and premises, or any part thereof, adverse to the plaintiff's said right of way." From the judgment rendered the plaintiff has again appealed to this court.

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Counsel for plaintiff now contend that the court erred in finding as a conclusion that plaintiff is entitled to a decree quieting its title to a right of way over the premises in question. They insist that, under the findings of fact as made and entered in the cause, the court should have found as a conclusion of law that plaintiff is entitled to a decree adjudging it to be the owner in fee simple of a right of way over the premises mentioned. The only question to be determined on this appeal is whether the conclusions and decree of the court below, made and entered, are in conformity with the prior mandate of this court. We think they are. If counsel for appellant thought that this court, in the prior opinion, did not correctly define and determine the extent of appellant's rights to the land

in dispute, or did not fully safeguard its rights as defined and adjudged, they should have filed a petition for a rehearing. This they did not do.

The conclusions of law and judgment having been drawn and entered in conformity with the decision of this court, we are precluded from further considering the case. The former decision became and is the law of the case, and this court, as well as the litigants, are bound thereby.

FRICK, C. J., and STRAUP, J., concur.

STATE v. NELSON.

No. 2179. Decided June 3, 1911 (117 Pac. 71).

1. LARCENY-EVIDENCE-SUFFICIENCY.

Evidence held insufficient

to sustain a conviction of grand larceny. (Page 239.)

2. CRIMINAL LAW-EVIDENCE-DEMONSTRATIVE EVIDENCE. In a prosecution for the larceny of wheat, samples of wheat received by a witness for the state from the sons of the prosecuting witness, as taken from the granary and shed where the larceny was committed, was incompetent as evidence, in the absence of evidence that the sample was in fact taken from the wheat stored on the premises of the prosecuting witness. (Page 244.)

APPEAL from District Court, First District; Hon. W. W. Maughan, Judge.

John W. Nelson was convicted of grand larceny and appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

George Q. Rich for appellant.

A. R. Barnes, Attorney-General, for the State.

MCCARTY, J.

The defendant was informed against in the district court of Cache County, Utah, for the crime of grand larceny. It is charged in the information that the defendant stole thirty bags of wheat containing in all sixty-two bushels of the value of $55.95, the property of one J. E. Godfrey. A trial was had, and the defendant convicted of grand larceny as charged in the information. From the judgment rendered on the verdict, the defendant has appealed to this court.

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The evidence such as it is upon which the defendant was convicted was entirely circumstantial. The principal ground upon which the defendant seeks a reversal and the only one we deem it necessary to consider is that the evidence was wholly insufficient to support a verdict of guilty. At the time of the alleged larceny and for several years prior thereto, J. E. Godfrey, the complaining witness, resided at Clarkston, and the defendant resided at Newton, Cache County. The farm at which the larceny was committed was inclosed by a fence, and is situated about three miles south of Clarkston and about two and one half miles. north of Newton. No one lived upon this farm, and the only building thereon was a granary and shed. There is a highway running along the north side and another along the west side of these premises, and the granary is back a few rods from either highway. In the fall of 1909, J. E. Godfrey, the owner of the farm, harvested and threshed thereon about 2500 bushels of wheat. The wheat was sacked and stored in

the granary and shed mentioned. Each sack contained a

little in excess of two bushels. The evidence tended to show that on the night of November 4, 1909, some person with an empty three and one fourth farm wagon drawn by a team of horses came from the town of Newton to the farm, drove in at a gate on the west side of the premises, loaded onto the wagon about thirty sacks of Godfrey's wheat, and then returned with the outfit to Newton. The tracks made by the team and wagon were traced within one block of defendant's residence but no nearer. The tracks made by the horses showed that both animals were shod, with the exception of

the left front foot of the off horse; that is, the off horse carried three shoes only. No tracks of a wagon, empty or loaded, were traced from the Godfrey farm to the defendant's premises; nor was it shown that the defendant was ever seen in the vicinity of the premises where the larceny was committed. On November 5, 1909, at about nine o'clock a. m., the defendant sold and delivered to the Thatcher Milling & Elevator Company, at Logan, Utah, a load of wheat for $55.95. Regarding this transaction, Lee Thatcher, a witness for the state, testified in part as follows: "He (defendant) came in and asked the price of wheat. I told him our price, and he went out considering it, and shortly came up with a load of wheat. He sold the wheat to us. I received it. There was nothing unusual about the defendant that attracted my attention or made me in any way suspicious. He was a regular customer of our mill." The defendant unloaded the wheat at the mill, received his money therefor, and returned with his outfit to a public feed yard, where he stopped and put up his team when he arrived in Logan with his load of wheat. Defendant owned and cultivated a small farm near Newton, and during the summer of 1909 raised thereon about one hundred and sixty-five bushels of wheat, which was threshed in the fall at his home in the town of Newton.

The evidence introduced by defendant tended to show that a small portion of the 165 bushels of wheat was fed to his horses; that he sold thirty-four bushels at Cache Junction to a man by the name of Griffith; that on November 4, 1909, the defendant, aided by his wife and a son, fifteen years of age, sacked and loaded into his wagon sixty-two bushels of wheat-the wheat which he is charged with having stolenand on the evening of that same day started with the load of wheat for Logan; that he went to Logan by way of Benson Ward, stopped all night at the latter place at the ranch of his brother, Edward Nelson; that his object in going by the ranch, which was not out of his way in going to Logan, was to lead back and return to the ranch two of his horses which had gotten out of a pasture at the ranch and gone to Newton that morning, and, further, that the roads were muddy and