ETZ et ux.
Rehearing Denied September 25, 1951.
Judgment reversed with directions.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix for appellants.
W. F. Dains, Curtis E. Weland, of Phoenix for appellee.
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concur.
[72 Ariz. 229] This is an appeal from the judgment of the trial court and from an order denying appellant's motion for a new trial.
The cause was tried to the court without a jury upon a complaint to quiet title which must be construed under the evidence presented by plaintiff-appellee as being intended to state a claim of title by adverse possession against defendants-appellants to a strip of land three feet wide lying north of the north boundary line of Lot 10, Norma Place in Phoenix. The parties will be hereinafter referred to as plaintiff and defendants as they appeared in the trial court.
The pleadings are a bit confusing, in that, they allege that plaintiff is the owner in fee simple of Lot 10, Norma Place, according to the map or plat thereof, etc., and that the north boundary line of Lot 10 is three feet north of what defendants now claim is the north boundary line thereof along which they constructed the fence in question. Plaintiff alleges that up to September 25, 1948, she and her predecessors in interest had been in actual, open, exclusive and notorious possession of Lot 10 under a claim of right as against defendants (owners of Lot 12) and all the world during that period, exercising dominion over it and enjoying and using the same. (Incidentally the evidence shows plaintiff has owned and been in possession of Lot 10 since 1925 or 1926). She further alleges defendants claim some interest in this threefoot strip of land and that such claim is without right or foundation and they have no estate, right, title or interest therein.
In her first cause of action she asked that defendants and each of them be barred and forever estopped from having or claiming any right or title to said strip of land.
In her second cause of action she reincorporates the above allegations therein and further alleges that defendants, without her consent and over her protest, wrongfully and unlawfully entered and trespassed upon the three-foot strip of land on the north side of her premises and built a fence thereon which obstructs the ingress and egress of her tenants to her apartments located along the north boundary line of Lot 10. She asked damages therefor and for the removal of the fence and restoration of said land to her. Defendants denied all of the above allegations except that they claim title to the three-foot strip of land in question.
At the close of all of the evidence the court took the matter under advisement and thereafter entered judgment in favor of plaintiff and against defendants and each of them, finding that plaintiff is the owner of Lot 10, the north line of which is established [72 Ariz. 230] by the survey of Lot 12 on September 2, 1948, by F. N. Holmquist, acting for defendants Etz. This survey established the boundary line between Lots 10 and 12 to be along the line upon which defendants constructed the fence here involved and which approximately coincides with the original survey as shown by the map or plat of Norma Place. The judgment further found defendants to be the owners of Lot 12. It then found that plaintiff and her predecessors in interest had used a part of Lot 12, Norma Place, three feet wide lying north of the entire boundary line of Lot 10 for a period of more than 20 years and concluded as a matter of law that plaintiff had acquired an easement for the use of said strip of land. The court thereupon entered its order and decree establishing an easement in favor of plaintiff for the use of the three-foot strip of land on Lot 12 of Norma Place lying north of the north boundary line of Lot 10 extending along the entire length of said lots.
On her second cause of action judgment was entered against defendants ordering and directing them to remove the fence now encroaching ...