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Cook v. Stevens

Supreme Court of Arizona

April 4, 1938

IRA D. COOK and ELMA COOK, His Wife, Appellants,
v.
ROBERT STEVENS, Appellee

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Mr. V. L. Hash, for Appellants.

Messrs. Cunningham & Carson, for Appellee.

OPINION

[51 Ariz. 468] LOCKWOOD, J.

Ira D. Cook and Elma Cook, his wife, hereinafter called plaintiffs, brought suit in the superior court of Maricopa county against Robert Stevens, hereinafter called defendant, to quiet title to the north half of the northwest quarter of section 33, township 1 north, range 1 east of the Gila and Salt River base and meridian, claiming that defendant was unlawfully occupying a certain portion of said premises, being all that part lying between the south boundary thereof and the St. Johns canal, amounting to approximately 15 acres. Defendant answered, alleging that on the 19th day of April, 1910, he had made application for a homestead of the south half of the northwest quarter of section 33 above, and that patent was thereafter and in due course issued to him to said land; that he went into possession of the [51 Ariz. 469] property and immediately constructed a fence inclosing the premises on the lines then established as the boundaries thereof by certain surveys, except on the north boundary. The reason that he did not follow along the north boundary with his fence was that there existed an irrigation ditch, known as the St. Johns canal, which entered his premises on the eastern side, passed diagonally across until it reached the north boundary some 1,000 feet west of the eastern boundary, and then crossed such north boundary into the north half of the northwest quarter aforesaid, and curved in a northwesterly direction through such north half; that the north half at the time was occupied by one Yeager, plaintiffs' predecessor in interest, and that by agreement with Yeager, defendant occupied that portion of the north half of the northwest quarter of the section aforesaid, which was south of the St. Johns canal, while Yeager occupied that portion of the south half of the northwest quarter which lay north of the St. Johns canal, and in accordance with such agreement, defendant built a fence including that portion of the north half of the northwest

Page 1101

quarter lying south of the St. Johns canal, but excluding from the fenced area that portion of the south half of the northwest quarter lying north of the St. Johns canal; that in the next year defendant moved his house on the portion of the north half of the northwest quarter fenced by him as aforesaid, and ever since that time has been in open, notorious, adverse, and peaceable possession of all of the premises inclosed by the fence aforesaid, cultivating, using, and enjoying the same and paying taxes thereon; and that all the predecessors of the plaintiffs in the north half of the northwest quarter aforesaid have acquiesced in such possession by defendant; and that by reason thereof plaintiffs' claim, if they have any, is barred by the statute of limitations.

[51 Ariz. 470] The case came on for trial before the court sitting without a jury, and the court made findings of fact, including among them the following:

"4. That at the time defendant Robert Stevens went into possession of the south half of the northwest quarter of section 33, township 1 north, range 1 east of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, the said north half of the northwest quarter of said section 33 was occupied by one Mr. Yeager, who was with his wife the owner thereof.

"5. That the exact location of the boundary line between the said north half and the said south half of said northwest quarter of section 33 was at said time uncertain; that said Mr. Yeager and said defendant Robert Stevens verbally agreed upon the location of a fence and defendant Robert Stevens erected a barbed wire fence along said line, so agreed upon between himself and said Mr. Yeager and ever since has maintained the same upon the boundary line described in paragraph 7 hereof.

"6. That defendant Robert Stevens has been in peaceable, open, notorious and adverse possession of said south half of the northwest quarter of said section 33 in township 1 north, range 1 east of the Gila and Salt River Base and Meridian, in Maricopa County, Arizona, for more than twenty-five years and by virtue of said adverse possession is now the owner in fee simple thereof to the said fence and boundary described in paragraph 7.

"7. That the north boundary line of said the south half of the northwest quarter of section 33, township 1 north, range 1 east of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, is hereby described as follows: (giving survey in accordance with the fence line claimed by defendant)."

As conclusions of law from the foregoing findings, the court found:

"2. That defendant is entitled to judgment in this action by reason of the fact that he has been in open, notorious, peaceable and adverse possession of the [51 Ariz. 471] south half oft he northwest quarter of section 33, township 1 north, range 1 east of the Gila and Salt River Base and Meridian, Maricopa County, Arizona, for more than twenty-five years, the north line of which said south half of ...


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