WACKER et ux.
PRICE et al
Judgment reversed, and cause remanded with directions.
H. B. Walker and Marshall W. Haislip, of Phoenix, attorneys for appellants.
Hill, Robert, Hill & Price, of Phoenix, attorneys for appellees.
Stanford, Justice. LaPrade, J., concurs. Phelps, Justice (specially concurring). Udall, Justice, (dissenting). De Concini, J., concurs.
[70 Ariz. 100] Action was filed in the superior court by appellants to quiet title in them to Lot 8, Block 31, Grand Avenue Addition to the City of Phoenix, Arizona, on the theory that their lot was being encroached upon by the appellees (defendants) who owned lot 6 but believed that their property, after a survey was made, did not encroach upon lot 8.
The case was tried before the court without a jury, and judgment was rendered in favor of appellees, from which judgment the appellants have appealed to this court.
On May 16, 1944, one Ida Shaw, a widow, gave a warranty deed to these appellants to said lot 8. On February 1, 1945, appellees also received from said Ida Shaw a warranty deed for lot 6, block 31 of said Grand Avenue Addition. The corners of neither of said lots were established by the Grand Avenue Addition map and the dimensions were not established except that most of the lots south of a main street to the north were accepted by owners to be 50 feet in width and it is stipulated that said lots are 50 feet in width. In November, 1946, the appellees secured a building permit to build on said lot 6 and erected a six room modern brick residence thereon.
[70 Ariz. 101] When the two lots were purchased by the respective grantees no buildings were upon them nor were there any fences or other signs showing the location of the lots, except to the south of lot 8 was lot 10 owned by Della C. Newcomb. She had a home upon the lot which was built approximately 20 inches south of the south line of lot 8 and her north line was designated by a fence. Della C. Newcomb bought the premises in 1915 and has lived there since. There was also constructed on lot 10 a garage at the southwest corner of the lot. There was also a fence along the south line
of the Newcomb lot, and at the time of the trial it had been there for 20 years and she claimed that the size of her lot was 50 X 137 1/2 feet. She also claimed that she had her lot surveyed by Holmquist and Robinson in the year 1919.
According to the map of Grand Avenue Addition, which was filed before the addition was taken into the City of Phoenix, (filed of record in 1887) the lots in block 31 alternate, that is to say, the even numbers are on the east side and the uneven numbers on the west side of the block.
Venus McGinnis testified that he owned lot 12 in block 31 and stated that there was a fence on the north side of his lot and on the south side there was a hedge of trees, and when asked how old the trees were he answered: "Ever since -- I don't know, they have been there forever almost." He had two buildings upon his lot.
Chester Adams testified that he lived in the Grand Avenue Addition and that his lot was number 14; that he had lived there for 15 years, but that he did not build the house, it being there before he obtained it.
One of the maps submitted in evidence which shows the fences, hedges and houses upon the lots in blocks 30 and 31, shows a house on lot 16, block 31, but no testimony was offered concerning it.
As to lot 18, block 31, lying to the south of lot 16, the testimony shows it was owned by Louis Radonick and had been owned by him for 20 years; that he had a house upon it and a fence along the north and south sides, the fence having been there for 20 years. He had owned but sold lots 16 and 20, each of which, from the map referred to, have houses upon them.
The next lot owner to the south is Joseph Shaughenessy, who testified that he lived on lot 2, block 30, being south of block 31, for 35 years and had a lot of trees and a fence on the north side of his lot; that the fence had been there for 20 years and the trees five or six years; that he owned lots 22 and 24 in block 31, being to the north of his lot 2, but there is a street (Cedar Street) between lot 2, block 30 and lot 24, block 31. He testified that there was an iron stake in the north corner and there was a line of Tamarisk trees on the north boundary of lot 22. He also testified relative to these two lots: "We have a steel [70 Ariz. 102] stake in the ground at the corner of each lot on the north side and south side."
Appellants contend that appellees claimed an interest in lot 8 which lot appellants claim to own, and the interest was adverse to appellants and the testimony showed that the house constructed upon that portion of lot 8 owned by appellants was an encroachment of 17.20 feet on the east end, or front, of the house, and 16.83 feet on the west end, or rear of the house.
F. M. Holmquist, called as a witness for appellants, testified that he was a civil engineer and had been such since 1909; that he had made surveys of the lots in blocks 30 and 31 of Grand Avenue Addition, and at the request of the appellant had made a survey in January, 1947, of blocks 30 and 31 of Grand Avenue Addition, and the witness testified that he made reference to the original Grand Avenue map recorded in Book 1, page 9 of the records of the County Recorder of Maricopa County, Arizona. Referring to that particular map this question was asked the witness
"Q. Is this map which counsel for the plaintiff has offered in evidence here, marked Plaintiffs' Exhibit 'C' for identification, does that show that lot lines as they are upon the official recorded map of this property? A. As near as you could tell, yes, sir. There may be some slight differences which just couldn't possibly be reconciled. In general they follow very closely.
"Q. You say it follows very closely? A. In general. As regards block 30, I don't know of any real differences -- I mean block 31.
"Q. Block 31 you don't know of any real differences between this and the recorded map? A. That is right."
Harry E. Jones, civil engineer, was called as a witness for appellee and in testifying concerning lot 6 claimed by appellees, he said:
"Q. Now when you made this survey for lot 6 for Mr. Price, I suppose you did examine the ground down to the south part of Block 31? A. Oh, I have been aware
of that situation out there for several years.
"Q. When you prepared this map did you run into any stakes or markers at the corner of these other lots there in the south part of Block 31? A. No, sir, I didn't look for them. I knew where I would find them, I knew they were there. I know Mr. Holmquist has been making surveys out there from those erroneously placed stakes for years.
"Q. And you told Mr. Price there were markers down there? A. We didn't discuss that; he didn't ask me and I didn't tell him. His lot was all in the clear, no encroachments on his lot, no adverse possession, no fences or anything.
"Q. Now on these other lots in that area, did you see these fences and these rows of trees, high trees 20 or 30 feet high? A. I have known of that area they own [70 Ariz. 103] here as I say for 42 years. I have been out there many times. I am thoroughly conversant with it.
"Q. And you have seen those trees for many years? A. Yes.
"Q. In your survey you totally ignored all those? A. I wasn't requested to make a survey of property rights, just Lot 6, Block 31, which I did. Since there were no adverse claims or nothing that would indicate an adverse possession of that particular lot. We weren't interested any further." (Emp. Sup.)
F. M. Holmquist, witness for appellants, under cross examination stated:
"Q. Now getting back to this official map, it has no measurements on it at all. A. No, sir.
"Q. Just state the scale, 300 feet to the inch? A. That is what it says on the map, yes, sir.
"Q. What is the distance shown on the official map from the south line of McDowell to the north line of -- of what used to be Elm Street? A. No distance given.
"Q. Can you give us that distance by looking at the map? A. No, sir, not from this map. I don't have any other records here that would give that.
"Q. Those streets in there, what are those streets? A. Well, they are generally 60 feet. The map doesn't say that, but by collateral evidence they have been determined to be 60 feet.
"Q. And you have generally accepted them as being 60 feet? A. Yes, sir.
"Q. Now granting all these lots in Blocks 33 and 32 and 31 as shown on the official map are 50 foot lots and the streets are 60 feet in width, what is the distance from the northeast corner of that subdivision, 33 feet south of the north line of that quarter section, or the north line of that section, to the north line of Elm Street as shown on the map? A. From the section line or the south line of McDowell.
"Q. The south line of McDowell? A. Each block would be 600 feet, and two blocks would be 1200 feet, plus Madrona Street, would make about 1260 feet to the north line of Elm Street, based on 50 foot lots.
"Q. Then there would be 33 feet north of that line to the center of McDowell? A. Yes, sir.
"Q. Which is the north line of Section 6? A. Yes, sir, based on the assumption.
"Q. Are there any City monuments located along Fifteenth Avenue between McDowell and Roosevelt? A. Yes, sir.
"Q. Did you make any use of any of those monuments? A. I tied into them.
"Q. I didn't understand. A. We tied into them.
"Q. Did you make any use of any of the distances on the City map between those ...