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Gusheroski v. Lewis

Supreme Court of Arizona

April 2, 1946

GUSHEROSKI et ux.
v.
LEWIS et ux

Appeal from Superior Court, Maricopa County; Howard C. Speakman, Judge.

Judgment affirmed.

H. M. Van Denburgh and Kramer, Morrison, Roche & Perry, all of Phoenix, for appellants.

Hess Seaman, of Phoenix, for appellees.

Stanford, Chief Justice. La Prade and Morgan, JJ., concur.

OPINION

Stanford, Chief Justice.

[64 Ariz. 193] Appellants were the owners of Tract F consisting approximately of five acres and [64 Ariz. 194] appellees were the owners of Tract G being of similar size. The land lay side by side, the appellants' property being north of appellees' five acres. The lands are on North Central Avenue, North of Phoenix near the Arizona Canal. Complaint was filed in the superior court by appellees alleging a controversy between the two owners over a strip of land lying between the two tracts and asking for a restraining order, temporary and permanent, preventing appellants from interfering with appellees or their employees while going upon the

Page 391

land to cultivate and irrigate same, and for a declaration of an easement. There is a vacant piece of land between the two tracts, but there is no boundary line or fence maintained between the two tracts and in the cultivation of the north row of citrus on Tract G, belonging to the appellees, they had for over ten years past driven their cultivating equipment on the southern portion of Tract F. This has been done in connection with both cultivation and irrigation of the north row of citrus owned by appellees.

A survey of Tract F established that the recorded plat was substantially correct. The strip over which appellees were given perpetual easement in Tract F is a wedge shaped piece of land approximately one foot in width at one end and seven feet at the other and about one quarter mile in length. The evidence further disclosed that it was impossible for each of the parties to cultivate their trees without encroaching on each other's property at the time the machinery was turned around. It was also made to appear that appellees and their predecessors in interest, during a period in excess of 29 years, and during a period in excess of 17 1/2 years of actual ownership by the appellee Adah I. Lewis, have been cultivating, using and enjoying the disputed ground continuously, openly, notoriously and without interruption, either verbal or physical, under claim of right inconsistent with and hostile to the claim of all others. While no fence existed between the properties, after each cultivation a ridge or embankment was constructed and reconstructed all through the years, keeping appellees' irrigation water off of appellants' land, and appellants' irrigation water off of appellees' ground; and when appellants' predecessors in interest cultivated and irrigated the area south of their south row of trees and in such cultivation and irrigation broke down said ridge or embankment, they, in turn, reconstructed same, it being accepted and acquiesced in by all parties in interest during all of said time that each owner had the right to so destroy and reconstruct said embankment between said two tracts of land for the necessary and proper cultivation of their respective tracts of land.

The appellee Mrs. Lewis (formerly Mrs. Zimmer) testified that she and Mr. Zimmer bought their tract of land in 1927; that they looked at the tract G in 1926 prior to purchase from a Mr. Nelson and [64 Ariz. 195] his wife, then the owners. She testified that the following conversation occurred while looking over the land:

"A. Well, I said to Mr. Nelson, 'Where is the boundary line of this property here. If we buy it what would our boundary line be?' He says, well, he says, 'It is right straight through between these two rows of trees. It runs that halfway between the two rows of trees. It has always been considered halfway between the two rows of trees.'

"Q. And you and Mr. Zimmer always claimed that to be your property line? A. Yes, sir.

"Q. No one ever disputed it up until the present time? A. Never."

Mrs. Lewis further testified:

"Q. * * * Now, from the time you purchased that property did you cultivate it right up to the present time? A. We certainly did.

"Q. And what was necessary to be done in order to cultivate that property? A. Well, when you come north across, why, you got up to this, where the ground there is in condition now, you have to turn around because we could not go on the other man's place and turn in, and we turned on that road there and cultivate, use their ground, cultivate their ...


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