As Corrected on Rehearing September 17, 1947.
Appeal from Superior Court, Pinal County; James A. Walsh, Judge.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellant.
D. B. Morgan, of Phoenix (Whitney, Ironside & Whitney, of Phoenix, of counsel), for appellee Nutt.
John L. Sullivan, Atty. Gen., and John W. Rood, Asst. Atty. Gen., for State.
Stanford, Chief Justice.
Stanford, Chief Justice.
[66 Ariz. 108] Judgment was rendered in the superior court of Pinal County in favor of defendants, the appellees herein, in an action brought to determine mainly the common corner of sections 25, 26, 35 and 36, township 9 south, range 8 east, said county From the judgment this appeal is taken.
We will hereinafter refer to the parties as they were designated in the trial court, the appellant as plaintiff, the appellee as defendant.
The facts briefly are: The original surveys of the land involved were made by the government in 1883 and 1887. The south boundary of the township in question was surveyed by the government in 1913 at a time when the township lying south of the one herein involved was surveyed. In November, 1939, defendant Nutt acquired section 26 under a state agricultural lease. The latter part of that month he had the section surveyed by Charles H. Robertson. He also cleared the land and fenced it according to the survey; put down a well in the southeast corner and started improving and cultivating the land.
In 1939 one J. W. White commenced developing section 35, which section lies south of section 26 belonging to defendant, but White did not cultivate that part of section 35 lying north of the Santa Cruz River. The Santa Cruz River ran northwesterly through the NW 1/4 of said section 35 of that strip lying north of the river remaining uncleared. Section 31 in township 9 south, range 9 east, which directly adjoins to the east section 36 in question [66 Ariz. 109] herein, was cleared off and developed in the spring of 1940 by one John Dawson.
In the fall of 1940 plaintiff acquired a state lease from the State of Arizona to section 36 heretofore mentioned, and in 1941 cleared, fenced and cultivated same. At the time plaintiff acquired section 36 he had the corners pointed out to him and was advised that the northwest corner, which corners with section 26 of defendant's, should be to the north and west of the point then being used, which was the point located by the Robertson survey.
In 1942 plaintiff received patents from the State of Arizona for 370 acres in section 36, theretofore held under lease, and caused F. N. Holmquist to establish the corners of said section. The Holmquist survey showed the corner of the NW 1/4 of said section 36 to be approximately 110 feet north and 61 feet west of the Robertson corner, which latter corner was established by defendant herein when he took over section 26 in 1939 and made improvements thereon. These improvements included a fence and an irrigation well in the southeast corner. ...