APPEAL from a judgment of the Superior Court of the County of Gila. C. C. Faires, Judge. Judgment reversed and cause remanded, with directions.
Mr. Graham Foster, for Appellant.
Mr. D. E. Reinhardt, for Appellees.
[40 Ariz. 43] ROSS, J.
This suit, in form an action to quiet title, involves a dispute as to the location of the division line between lot owners Trevillian and Rais.
The plaintiff and the defendants deraign title by regular chains from F. L. Toombs and wife and H. H. Bru and wife, or the same common source. The plaintiff's lot is described in the deeds of conveyance, the first in the chain being dated October 14, 1905, as follows:
"Beginning at a point on the southeast corner of Block No. thirty-seven (37), thence westerly along the north side of Cedar Street Fifty (50) feet; thence northerly parallel to High Street one hundred (100) feet; thence easterly parallel to Cedar Street fifty (50) feet; thence southerly parallel to High Street one hundred (100) feet to point of beginning, being a portion of block No. 37, according to the official map of said Townsite of Globe, now on file in the office of the Probate Judge in said Gila County."
And defendants' lots is described in deeds of conveyance, the first in the chain being dated June 30, 1905, as follows:
"Beginning at a point on the north line of Cedar Street and fifty (50) feet westerly from the southeast corner of Block numbered Thirty-Seven; thence westerly along Cedar Street fifty (50) feet; thence northerly parallel to High Street one hundred (100) feet; thence easterly parallel to Cedar Street fifty (50) feet; thence southerly parallel to High Street (100) feet to the place of beginning, according to the [40 Ariz. 44] official map of said Globe Townsite, now on file in the office of the Probate Judge of said Gila County."
These two lots, it is seen, adjoin each other and are on the southeast corner of block thirty-seven. It is undisputed that from 1906 there has been a fence between the two lots which has been recognized and maintained by the owners of lots as the division line. The only dispute is as to who constructed the fence. Plaintiff's testimony is to the effect that immediately after her predecessor in interest purchased her lot, in October, 1905, she started to build a residence on the lot and finished said building in the spring of 1906, at which time she constructed the division fence between the lots on a line pointed out to her by the grantors of both lots. The defendants bought their lot from Lois Parks and W. H. Parks, successors of Toombs et al., on March 23, 1925, and the evidence on their behalf is that the Parks had owned such lot from about 1908 and had built the division fence in question in 1913 or 1914, the fence theretofore existing having been taken down. Defendant J. W. Rais testifying stated that he thought the fence was on the true division line at the time he purchased the lot.
On February 22, 1930, E. T. Stewart surveyed the Rais property and, according to his survey, the line fence that had marked the division between the two lots was some two feet over on the Rais property. After defendants learned this, they tore the fence down and have since asserted ownership up to the line located by Stewart.
The plaintiff had a fence on the east line of her lot and the frontage of the lot from the fence on the east line and the fence on the west line is fifty-two feet.
The case was tried by the court without a jury and resulted in a verdict and judgment against the plaintiff. She has appealed and assigns as reason therefor [40 Ariz. 45] that ...