Appeal from Superior Court, Pima County; Evo DeConcini, Judge.
Judgment reversed, and cause remanded with directions.
Krucker & Fowler, of Tucson, for appellant.
John W. Ross, of Tucson, for appellee.
Don T. Udall, Superior Judge. LaPrade and Levi S. Udall, JJ.,
concur. Chief Justice R. C. Stanford having disqualified himself, Honorable Don
T. Udall, Judge, Superior Court, Navajo County, was called to sit in his stead.
Don T. Udall, Superior Judge.
[66 Ariz. 301] This is an appeal from a judgment in favor of plaintiff awarding him a prescriptive right to the use of a certain roadway across a portion of defendant's land described as the north 12 feet of Lot 1 in Block 1 of Oracle Park Addition to the City of Tucson, Pima County, Arizona, and enjoining the maintenance of obstructions thereon. The case was tried to the court without a jury.
The evidence reveals that plaintiff maintained a home and poultry business on a small tract of land located about 125 feet west of Lot 1 and used such roadway in connection with his business. The plaintiff's property is situated outside the city limits, the south line of which coincides with the north boundary of the City of Tucson, while Lot 1 is bounded on the north by the Tucson City Limits. Lot 2, Block 2, connects the two properties. The roadway in question extends over Lots 1 & 2, and intersects 12th Avenue (also known as "Main Street", and sometimes referred to as "Oracle Road") on the east and 13th Avenue on the west. The defendant purchased lot 1, block 1, together with other lands, by a sales contract from Arizona Building Company, a corporation, on September 25, 1944.
Shortly before the bringing of this action, January 18th, 1945, defendant erected a seven foot wire fence running north and south across the roadway and along the north boundary of lot 1, thus obstructing its free use. The fence also enclosed other lots not involved herein. Prior to the building of the fence this area had been open and unenclosed for many years and the general public had used it indiscriminately and at will. As early as June, 1922, there was a well-defined roadway running east and west across lots 1 and 2. About the same year, plaintiff moved onto the small tract of land and began to use the roadway along with other persons who had been using it before he came there. The passageway across lot 1, where it opened onto Main Street, was a focal point for several roads and trails which fanned out in various directions across the unenclosed land. There are two other ways of ingress and egress to plaintiff's property: one by a wide alley to the west of his property running north and the other by 13th Avenue, a public street, on which plaintiff's property abuts. Plaintiff does not claim "a way of necessity".
The evidence further discloses that prior to the building of the fence in question,
plaintiff never apprised the defendant or his predecessors in interest that he claimed an adverse use to the roadway across lot 1. However, either in the year 1937 or 1938, plaintiff offered to purchase this property from the corporation owning it at that [66 Ariz. 302] time but the sale thereof was refused by the owner. Even then, plaintiff did not assert his right to use the roadway as a private right-of-way. But, in this connection, it should be stated that sometime during one of the years preceding the commencement of this action, the exact time not appearing in the record, plaintiff filled some chuck holes that appeared on the roadway and also hired a man to haul to the roadway certain dirt that had accumulated in plaintiff's field. Plaintiff further testified that either in the year 1937 or 1938 the State Highway Department paved 12th Avenue and proposed putting in solid curbing where the roadway in question intersected said avenue. Plaintiff said he objected to this type of paving going in there and as a result the Highway Department laid a depressed sidewalk at that point instead of putting in solid curbing. The Highway Engineer in charge of this construction denied that anyone had ever protested the methods used in paving this particular street and further stated that a depressed sidewalk at the point above mentioned was a part of the original plan of construction.
The court concluded, as a matter of law, that the use of the roadway as shown by the evidence was adverse for more than ten years, a sufficient length of time to establish a prescriptive right therein in plaintiff for the maintenance and the use of the roadway; that the action of defendant in constructing a fence across the roadway thereby obstructing same was unlawful and an invasion of the vested rights of the plaintiff; that plaintiff was entitled to an order permanently restraining defendant from maintaining said fence across said roadway on Lot 1 in Block 1 of Oracle Park Addition, and directing defendant to remove all obstructions from plaintiff's right-of-way, leaving open for plaintiff's use and convenience and for the use of his agents, employees, and customers, a strip of land at least twelve feet in width along the north side of said lot 1, block 1. Judgment was entered accordingly.
The defendant contends: (1) that before an easement across the land of another can be acquired by prescription, it is necessary that the use be under a claim of right, hostile and adverse to the owner; (2) that the adverse use must be exclusive; and (3) that mere use of a way for the required time across unenclosed land is not sufficient to establish an easement. We will not examine the propositions of law separately, but instead consider them under one heading, namely: Has the plaintiff acquired an easement by prescription to the road which runs across the land of defendant?
The case which seems to be relied upon most heavily by the courts in the Western States in determining whether the elements of prescription are shown by the evidence to be present in a given case, and one which this court will use as a guide in arriving at a conclusion, ...