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Drane v. Avery

Supreme Court of Arizona

May 14, 1951

DRANE et al.
v.
AVERY et al

Rehearing Denied June 14, 1951.

Reversed and remanded.

V. L. Hash and Virginia Hash, Phoenix, for appellants.

Cox, Lockwood & Lockwood, Phoenix, for appellees.

Stanford, Justice. Udall, C. J., and Phelps, De Concini and La Prade, JJ., concur.

OPINION

Stanford, Justice.

[72 Ariz. 101] This action was brought by plaintiffs, (appellants herein) in the superior court, asking for a mandatory injunction for injury allegedly resulting from defendants' obstruction of a public street, and also asking damages in the sum of $ 1,000 sustained as a result thereof

The street in question, which we shall refer to as Fourth Street, is located in the Alhambra Amended Subdivision, northwest of the city of Phoenix, Arizona. It runs in a northerly direction, forming the east side of a triangle bounded on the southwest by Grand Avenue, a four lane highway running in a northwesterly direction, and on

Page 445

the north by the Grand Canal, which at that point runs in a somewhat westerly direction. Fourth Street intersects Grand Avenue at the southernmost corner of the triangle and extends to, but not across the canal at the northeast corner thereof, forming a dead-end street or a "cul-de-sac" some 200 yards in length.

The undisputed facts brought out in the trial court show that the land within and surrounding this triangle area was subdivided in 1895, that the map or plat recorded at that time, and still of record, designates Fourth Street as a roadway, 66 feet in width within the said subdivision. The plaintiffs are owners of land abutting Fourth Street on the east, and land belonging to defendants abuts the same on the west.

For a number of years, possibly since the subdividing but undisputedly since 1905, the only part of Fourth Street used as a public way has been the eastern portion thereof, averaging approximately 25 to 35 feet in width. It appears that a row of trees and a fence have bordered this strip on the west for some years, and since 1945, defendants have placed various structures [72 Ariz. 102] on the unused portion of the street, west of the fence, including, among other things, a bath house, a cess pool and butane tank for use in connection with a trailer court. Additional facts brought out at the trial also indicate that the portion of the street in use is only 10 to 15 feet wide in places, due to the meandering path of the trees and fence, rendering it almost impassable at times.

Plaintiffs brought suit asking (1) that a mandatory injunction be issued requiring that all "barriers and obstacles" be removed from the roadway and that defendants be forever barred from obstructing the said road; and (2) that plaintiffs recover $ 1,000 damages as compensation for injury to their premises.

The case was tried without a jury, and at the close of plaintiffs' case, defendants made their motion for judgment. The motion was granted and judgment entered thereon. From this judgment and from an order of the court ...


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