RALPH V. MEAD and HOPE M. MEAD, His Wife; JOHN A. SIMPSON and GRACE P. SIMPSON, His Wife, Appellants,
LOUIS G. HUMMEL, Appellee
APPEAL from a judgment of the Superior Court of the County of Pima. J. C. Niles, Judge. Judgment affirmed.
Mr. John W. Ross and Mr. Joseph H. Shifman, for Appellants.
Messrs. Hummel, Hummel & Wyatt, for Appellee.
[58 Ariz. 463] LOCKWOOD, C.J.
Louis G. Hummel, called plaintiff, brought suit against Ralph V. Mead and [58 Ariz. 464] Hope M. Mead, his wife, John A. Simpson and Grace P. Simpson, his wife, and various other parties, to quiet the title to certain real estate in Pima County and to enjoin defendants from trespassing on said property. Defendants answered and set up, in substance, that they had a right of way over the property involved in the complaint as though it were a public street or highway, and prayed that the court declare it to be subject to use as such by defendants and the general public. The case was tried to the court sitting without a jury and it found as follows:
"1. That plaintiff is the owner in fee simple of the real property in plaintiff's complaint and hereinafter described, and that defendants, and none of them, have any right, estate, interest or title whatever in or to said real property;
"2. That all of the allegations of plaintiff's said complaint are true and plaintiff is entitled to relief in accordance with the prayer thereof with the exception only that plaintiff has failed to prove, and he is therefore denied, any money damages by reason of defendants' acts of trespass upon said real property."
and rendered judgment accordingly.
We must assume of course that the trial court found every controverted issue of fact necessary to support the judgment in favor of plaintiff. Considered thus, the evidence shows the following facts: In 1922 Emma Hummel, the wife of plaintiff, acquired a tract of land situated on the northeast corner of Speedway and Country Club Road, in Pima County, Arizona. It was two hundred and sixty-four (264) feet in frontage on Speedway, and a sufficient amount on Country Club Road to make the entire area approximately ten acres. Just to the east of this property was what is known as Jones Addition. This had been regularly laid out with certain properly dedicated streets, one of them being Fairmount Avenue, [58 Ariz. 465] which was sixty feet in width, and ran in an easterly and westerly direction, abutting on the eastern line of plaintiff's property. Plaintiff had visited the property at the time it was acquired in 1922 and then noticed various auto tracks upon it, but nothing to indicate that Fairmount Avenue, in Jones Addition, was being used as a street through his property to Country Club Road. Nor did he thereafter have any knowledge such was the fact until sometime in 1940 when, for the first time, he revisited the property.
Some time in 1936, one C. B. Perkins, who was a realtor in Tucson, or Peter R. Kelly, who was Perkins' salesman, came to plaintiff and said he had a buyer for some of the land above referred to. After some discussion a price was agreed upon and plaintiff agreed to pay a commission if a sale was consummated. Some time thereafter Kelly took to plaintiff a written agreement of purchase and sale, describing the premises as follows: "N. 1/2 of parcel 2 of N.W. 1/4 of N.W. 1/4 Section 4, Township 13 South, Range 14 East G. & S.R.B. & M., Pima County, Arizona," and following immediately thereafter "N.E. Cor. Country Club & Fairmount Ave." It was the testimony of Kelly that these last words were on the contract at the time it was exhibited to, and signed by, Hummel. The latter, however, stated as follows:
"A. That is my signature, yes, I signed that. I doubt if that Country Club Road and Fairmount Avenue was on that when I signed it.
"Q. It has been changed, you think, perhaps?
"A. Yes, I think it has. I would say it was changed because there was no reference made -- at least, I wouldn't refer to Fairmount Avenue, I would refer to a ...