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Butler v. Quinn

Supreme Court of Arizona

September 17, 1932

TEXANA BUTLER, R. B. BUTLER, VIVIAN BUTLER JONES, Wife of BENNETT JONES, VERDIE BUTLER and MYRTLE BUTLER, Appellants,
v.
A. M. QUINN and LLOYD THOMAS, Appellees

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgement affirmed.

Messrs. Clark & Clark, for Appellants.

Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellees.

OPINION

LOCKWOOD, J.

This is an action by A. M. Quinn and Lloyd Thomas, hereinafter called plaintiffs, [40 Ariz. 447] against Texana Butler, R. B. Butler, Vivian Butler Jones, Verdie Butler and Myrtle Butler, hereinafter called defendants, to enjoin the latter from obstructing and blocking a certain alleged private lane in section 32, township 3 North, range 3 East, Gila & Salt River base and meridian. The case was tried to the court without a jury, and judgment was duly rendered declaring, among other things, a certain portion of said section to be a private way for the use and benefit of the owners of part of the land in said section, and enjoining defendants from maintaining any structures obstructing the use and occupancy of such lane, and from said judgment this appeal was taken.

There are some three assignments of error, one based on the admission in evidence by the court of a certain map, and the other two being in effect that under the facts appearing in the record and the law applicable thereto plaintiffs herein were not entitled to the relief given.

There is comparatively little dispute in regard to the facts that we consider necessary to a proper determination of the case, and we state them as follows: In 1910 S. T. Butler and his wife bought certain property described in the deed to them as "all of the north one-half of the southwest quarter of Section 32, Township 3 N., Range 3 E., being 80 acres more or less." The south one-half of the southwest quarter was then and later owned by various persons. In 1920 Butler died intestate, and his estate was in the process of being probated. About that time the various owners of the southwest quarter of section 32 aforesaid apparently decided that their lands had been so subdivided that it would be inconvenient in the future to describe them by government survey or by metes and bounds in each deed, so they employed a surveyor to survey said southwest

Page 251

quarter and the subdivision thereof, and on the twenty-sixth day of [40 Ariz. 448] April 1921, the owners of all the various plots of ground located in the south one-half of said southwest quarter and Texana Butler, the surviving wife of S. T. Butler, who had been appointed as administratrix of his estate, signed an agreement which reads as follows:

"State of Arizona

"County of Maricopa. SS.

"Know All Men by These Presents:

"That the S. T. Butler Estate, Robert P. Tribble, Russell McDaniels, J. M. Ruggles and Sarah C. Ruggles, his wife, Isaac H. Kipp and H. Elizabeth Kipp, his wife, A. J. Powers and Ada A. Powers, his wife, D. E. Nelson and Ella H. Nelson, his wife, Jack Tharpe and Mabel Tharpe, his wife, N. A. Gardner and Rose A. Gardner, his wife, Wilber P. Etris and Margaret Etris, his wife, Samuel Schumacker and Lillie Schumaker, his wife, and Lee Cockrill being the owners, severally, of all the southwest one quarter of Section 32, T. 3 N., R. 3 E., G. & S.R.B. & M., have caused said property to be surveyed, subdivided and platted and have mutually agreed that the property interests of the above named parties are as shown on the accompanying plat and in accordance with the following:

S.T. Butler Estate

Tract 'A'

Robert P. Tribble

Tract 'B'

Russell McDaniels

Tract 'C'

Isaac H. & Elizabeth Kipp

Tract 'E'

D. E. & Ella H. Nelson

Tract 'G'

Wilver P. & Margare Etris

Tract 'H'

Samuel & Lillie Schumacker

Tract 'I'

Lee Cockrill

Tract 'J'

Jack & Mable Tharp

Track 'K'

N.A. & Rose A. Gardner

Track ...


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