HAMILTON et ux.
McDANIEL et ux
Judgment affirmed as modified.
W. H. Chester, of Phoenix, for appellants.
A. H. Mackenzie, of Prescott, for appellees.
Stanford, Justice. Udall, C. J., De Concini and La Prade, JJ., and Lockwood, Superior Judge, concur. Justice M. T. Phelps being disqualified, the Honorable Lorna E. Lockwood, Judge of the Superior Court of Maricopa County, was called to sit in his stead.
[71 Ariz. 372] Action was brought in the superior court by plaintiffs, Fred McDaniel and his wife, appellees herein, for the purpose of quieting title in them to a portion of Lot 19, Block 2 of Mathers Subdivision, Amended, in the city of Phoenix, Arizona. The said Lot 19 measures approximately 150 feet east and west, 50 feet north and south and is the southwest corner lot of the said Block 2, bounded on the west by 13th Street, on the south by Diamond Street, on the east by Lot 13 and on the north by Lot 20.
Facts brought out at the trial indicate that plaintiffs purchased a portion of the said Lot 19 from Frank Randall by deed dated August 25, 1924, which described the land as: "The East fifty (50) feet of Lot numbered Nineteen (19) in Mathers Subdivision, Amended, a Subdivision of Block [71 Ariz. 373] number Two (2), of Mathers Subdivision, according to the official map or plat of said subdivision on file and of record in the office of the County Recorder of Maricopa County, Arizona in Book 9 of Maps, at page 9 thereof. * * *"
The trial court sitting without a jury, made findings of fact and conclusions of law. These findings disclose that there is an alley some 15 feet in width, which runs from Diamond Street northward, comprising the east 7 1/2 feet of Lot 19, and the other lots in that tier as well as the west 7 1/2 feet of Lot 13 and the remaining lots in that tier. Though the facts show that the said alley was, at the time of the purchase by plaintiffs, and still is, being used as a roadway by garbage trucks and for sundry other purposes, it has never been dedicated as such and in fact was only "curbed up" at the Diamond Street entrance in March of 1939. There is no showing of any such alleyway in the plat recorded in the office of the County Recorder, however testimony shows that light and telephone poles have been installed and in use along the alley since 1921, the poles being placed along the western edge of said alley.
At the time of the purchase of the "East 50 feet of Lot 19" by plaintiffs, the vendor Randall showed the plaintiff Fred McDaniel four iron stakes in place on the land which he stated marked the boundary of the tract being sold to them. The land enclosed by the iron stakes extended westerly for a distance of 50 feet, measured from the west side of the said alley and is the parcel of land actually taken possession of by plaintiffs. It will be noted that though described as the "East 50 feet of Lot 19" in the deed, this parcel of land was actually measured from the west side of the alley instead of from the east boundary of Lot 19, as determined by the map and plat thereof. Thereafter, in 1926, plaintiffs built a house on the tract and a picket fence along the boundaries as set out by the stakes on the east, north and west sides thereof.
In 1935, the defendants E. L. Hamilton and his wife, appellants herein, purchased the remaining portion of Lot 19 which was described in their deed as "Lot 19, * * * Except the East 50 feet thereof, * * *." and they thereupon took possession of that portion of Lot 19 lying west of the picket fence built by plaintiffs.
Thereafter, in January, 1948, defendants had their land surveyed, the survey indicating that the west boundary of the property ...