LEWIS et ux.
FARRAH et al
Appeal from Superior Court, Maricopa County; Dudley W. Windes, Judge.
Hess Seaman, of Phoenix, for appellants.
Clarence E. Lott, of Phoenix, for appellees.
Udall, Justice. Stanford, C. J., and LaPrade, J., concurring.
[65 Ariz. 321] For the sake of clarity the parties will be referred to as they were in the trial court. The plaintiffs (appellees) are the owners of a two-acre tract of land located outside the corporate limits of the City of Phoenix, in the SE 1/4 of Sec. 32, Tp. 3 North, Range 3 East. This quadrilateral tract has a 62-foot frontage on North Central Avenue and extends easterly some 1,800 feet to the right of way of the Arizona Canal. The defendants (appellants) own a five-acre tract of land immediately adjoining the land of plaintiffs to the south. There is a citrus grove upon defendants' land, and the north row of citrus trees is located some three feet south of the true boundary line between said tracts. When plaintiffs acquired their property on September 10, 1945, there was no fence marking the boundary between the properties, but from 1929 to 1940, according to plaintiffs' evidence, there was in existence a small ditch running approximately on the east-west boundary line.
A dispute arose between the parties as to the right of defendants to use a strip of land some ten feet four inches in width, extending from west to east along the entire south boundary of plaintiffs' land. Defendants asserted ownership to this strip claiming title by adverse possession or adverse user (it is not clear which) for a period of more than ten years, during which they asserted that they had adversely and openly used this area in irrigating, cultivating, [65 Ariz. 322] and in picking the citrus fruit from their north row of citrus trees. Furthermore,
defendants claimed an easement by prescription to travel with their farm machinery over plaintiffs' driveway along the north line of this tract by adverse user for the statutory period of ten years.
After plaintiffs had procured F. N. Holmquist, a registered civil engineer, to make a survey of their property to establish the true boundary line between their lands and the lands owned by defendants, they erected a two-wire fence on the boundary line thus established. Soon thereafter defendants tore down and removed this fence, and continued to drive upon and use both the driveway and the narrow strip of land here in question, the record title to which was in the plaintiff.
Plaintiffs then brought this action to quiet their title to all lands embraced in the description contained in their deed and to enjoin defendants from trespassing upon their property or using their driveway. Defendants answered claiming an easement as aforesaid, and, by a cross-complaint, sought to establish and quiet their title to said easement of use in and to said disputed area of land.
The case was tried on the merits to the court, without a jury, and judgment was entered in favor of the plaintiffs to all of the lands in question, quieting their title and perpetually enjoining defendants from trespassing upon said premises. Defendants were denied any relief whatsoever upon their cross-complaint. From that judgment defendants have prosecuted this appeal. The sole assignment of error is that defendants claim under the undisputed evidence that they were entitled to have had judgment entered in their favor on their cross-complaint quieting their title to said easements in plaintiffs' property.
Adverse possession is defined by Section 29-107, A.C.A.1939, as follows: "* * * an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another." Hence a claimant relying upon this statute must show such open, notorious, continuous, and visible adverse occupation and use under claim of ownership as would constitute that adverse possession, use, or enjoyment by which either the presumption or the fact of notice and acquiescence upon the part of the title owner would arise to bar his right. Co ...