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Salyer v. Schmitt

Supreme Court of Arizona

June 11, 1951

SALYER et al.
v.
SCHMITT et al

Judgment affirmed.

Croaff & Croaff, of Phoenix, for appellants.

Robert R. Weaver, of Phoenix, for appellees.

Udall, Chief Justice. Stanford, Phelps, De Concini and La Prade, JJ., concurring.

OPINION

Udall, Chief Justice.

Page 117

[72 Ariz. 175] The sole issue presented on this appeal is whether there is evidence to sustain the trial court's judgment entered in this possessory action determining that a certain frame barracks-type building situate on a lot described as Lot 4, Block 8, Harbert's Subdivision, an addition to the city of Phoenix, was a part of the realty rather than personal property.

Joe L. Schmitt and Helen Schmitt, his wife, plaintiffs-appellees, brought this action against defendants William Salyer and Esther Salyer, his wife, and the Young Women's Christian Association, a corporation, primarily to recover possession of Lot 4, supra, and the buildings situate thereon, although other additional relief was sought. The case was tried to the court sitting without a jury and at the close thereof plaintiffs withdrew their claims against the defendant YWCA. Judgment was thereupon entered for plaintiffs granting them immediate possession of said property and every part thereof as against defendants Salyer, but denying the other relief prayed for. The Salyers have appealed from this judgment and the denial of their motion for a new trial.

Although the record is devoid of many material facts, it appears that about a decade ago the city of Phoenix was engaged in the construction of the Marcos de Niza housing project and certain frame barracks-type buildings had to be moved to make way for the new construction. The YWCA was orally advised by a single member of the Phoenix Housing Authority that if it would remove the buildings, paying all expenses incurred, the city would give to the YWCA some of these buildings for use in its recreation program. No formal action was ever taken validating or attempting to validate the giving away of these buildings in this manner. The building involved in the present suit is one which was moved onto the lot in question at 1452 West McKinley street by the YWCA with the city's "permission". The city at that time believed that the lot belonged to it because of delinquent and unpaid taxes and street improvement assessments. It later developed that the city was mistaken -- the lot did not belong to it. Apparently it was understood that the YWCA might later remove the building from Lot 4 to a more permanent location if it so desired. The YWCA later was forced to abandon its recreation program because of a shortage of supervisory personnel, and it has never attempted to move the house from the lot.

Thereafter, although exactly when is not shown by the record, the YWCA gave its permission to the defendants Salyer to move into the building and to occupy it as a residence. Salyer, who was a city employee, agreed to repay the YWCA for its costs of moving the building. According to Salyer's testimony he did contribute to the YWCA some $ 15 per month for a [72 Ariz. 176] period of nearly a year, in addition to making some needed repairs to the building. Salyer, like the YWCA, has never attempted to move the house elsewhere.

Plaintiffs in March of 1944 acquired a treasurer's tax deed to Lot 4 and thereafter brought an action to quiet title to the premises. Named as defendants in this suit, along with the original record owners, were the State, the county of Maricopa, and the city of Phoenix. While the defendants Salyer were then living on the premises they were not made parties to the suit. Judgment was entered in October of 1945 quieting their title.

Plaintiffs' title to Lot 4 is not now in dispute. The building, over which this controversy arose, rests upon concrete piers or blocks upon the premises. The record does not disclose just when or by whom utility connections were made to the city water and sewer systems, although it is undisputed that such connections were made prior to plaintiffs obtaining their tax deed. Likewise the record is silent as to when the building was placed on the lot, but it does show that the treasurer's deed ...


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