CALHOUN et al.
MOORE et al
Kramer, Morrision, Roche & Perry, L. V. Rhue, of Phoenix, for appellants.
Fred V. Moore, of Phoenix, for appellees.
Udall, Justice. La Prade, C. J., and Stanford, Phelps and De Concini, JJ., concur.
[69 Ariz. 403] This is an appeal by defendants from a declaratory judgment determining a portion of Twenty-Third Avenue which lies outside the limits of the City of Phoenix in Maricopa County to be a duly established county highway. The roadway involved is a strip one half mile in length running practically north and south between Indian School Road, on the south, and Campbell Avenue, on the north.
In the year 1915, upon application by interested property owners the Board of Supervisors of Maricopa County, proceeding under section 5057, Revised Statutes of Arizona, 1913, Civil Code, now Sec. 59-601, A.C.A.1939, purportedly established a public roadway 50 feet in width along the north-south quarter section line of section 24, township 2 north, range 2 east of the G. & S. R. B. & M., and extending 25 feet on each side of said median line. It appears that the statutory procedure for laying out and establishing this public highway was fully complied with, save and except that the center line of the roadway [69 Ariz. 404] as actually laid out on the ground, used by the public and maintained by the county since that time, is not really upon the quarter section line, but is in truth and in fact 53 feet west thereof at Indian School Road and 24 feet west thereof at Campbell Avenue. In other words the map required by law to be prepared by the county engineer and filed with the county recorder was not a true reflection of the physical facts as they then existed or as they now exist, for there is not now and never has been a roadway laid out and established on the quarter section line.
It further appears from the record that since the highway was established in the year 1915, property abutting the roadway has been subdivided, tracts sold, houses and other improvements erected thereon, many of which improvements on the east encroach more or less upon the road right of way as originally platted. In fact the testimony shows that if a 50-foot highway were now established squarely upon the north and south median line of section 24, some nine houses would have to be moved as well as utility poles, fences, open ditches, hedges, and underground pipe lines.
Some time in 1946, preliminary to paving this county roadway, a survey was made by the county engineer which definitely established that a surveying error had been made in laying out the roadway. However, many of the abutting property owners had been aware of the mistake for some years. In February, 1947, plaintiffs-appellees (being all of the abutting property owners on the east) filed a petition with the Board of Supervisors seeking a declaration that the existing roadway was the true established county highway rather than the 50-foot strip, 25 feet in width on each side of the north and south median line of the section as platted upon the map of record and described upon the minutes of the Board of Supervisors. After due notice to all parties interested, objections were filed by appellants and other defendants below (property owners on the west), a hearing was had and on October 30, 1947, the Board entered an order rejecting what it termed the "petition for alteration of the 23rd Avenue highway" and directed the county engineer to proceed to improve the highway within the right of way as originally platted on the quarter section line.
Shortly thereafter plaintiffs (appellees) filed an action in the superior court to have determined by declaratory judgment the true center line and width of the roadway in question. There were named as parties defendant: Maricopa County, a body politic, its board of supervisors and
county engineer, as well as all of the individual abutting property owners on the west side of said highway. The issues were framed and a trial had where testimony was taken. As highlighting the position of the plaintiffs we quote from the testimony of D. W. Fountain, who had been a resident of the area in question since [69 Ariz. 405] 1912, and had ...