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Reese v. De Mund

Supreme Court of Arizona

June 16, 1952

REESE et al.
v.
DE MUND et al

Judgment reversed.

Robert R. Weaver, Phoenix, for appellants.

Lewis, Roca and Scoville, Jack Choisser, City Atty., Laurence H. Whitlow, Asst. City Atty., Phoenix, for appellees.

Barry, Superior Court Judge. Udall, C. J., and Phelps and De Concini, JJ., concurring. La Prade, Justice (specially concurring). Note: Justice R. C. STANFORD, having disqualified, Superior Court Judge RALPH BARRY of Maricopa County was called to sit in his stead.

OPINION

Barry, Superior Court Judge.

[74 Ariz. 141] This is an appeal from an order of the superior court dismissing the amended complaint of appellants, hereinafter called plaintiffs, and from a judgment entered pursuant thereto in favor of appellees, hereinafter called defendants. The motion to dismiss was based upon the ground that the complaint did not state a claim against defendants or either of them.

Page 285

The complaint alleges in substance that plaintiff Reese is the owner of certain lots in Blocks 10, 11 and 13 of Naehr's Addition to the city of Phoenix; that plaintiff First National Life Insurance Company, a corporation, owns lots in Blocks 11 and 14, and that defendants DeMund own Block 12 thereof. Block 13 lies immediately south of Block 12. Block 11 lies immediately west of Block 12; Block 10 immediately west of Block 11, and Block 14 immediately south of Block 11, Washington Street runs east and west between Blocks 12 and 13, and Blocks 11 and 14.

The original plat of Neahr's Addition was recorded in the office of the county recorder of Maricopa County on March 6, 1880, and a resurvey thereof was recorded in said office on September 29, 1897. This plat dedicated to the public all streets and alleys therein, including an alley running east and west bisecting Blocks 10, 11, and 12, which was duly accepted by the city of Phoenix

That on or about May 10, 1950, the defendant Phoenix City Council enacted an ordinance which purported to abandon that portion of the above-described alley lying and being within the boundaries of Block 12, supra, and authorized and directed the city manager to convey the land lying within the boundaries of the alley to defendants DeMund, and that pursuant thereto such deed was executed and delivered to said defendants.

It is claimed in the first assignment of error that this conveyance is null and void for the reason that the abandonment and closing of such alley was not done for the public good or welfare nor connected in any manner therewith.

The first question to be determined under this assignment is whether or not plaintiffs are proper parties to raise such a question.

The courts have taken three different views with respect to the right of a property owner to object to a vacation of a street or alley described in a plat and [74 Ariz. 142] dedicated to public use. There is the "broad" view, sometimes called the "unity" rule, which is to the effect that all persons who have acquired land in the subdivision subsequent to its dedication and pursuant to the plat acquire a private easement in all of the streets and alleys shown on such plat. This rule has been explicitly rejected by the Supreme Court of Arizona in Thorne v. Clanton,10 Ariz. 94, 85 P. 1061. There is also the "intermediate" view, sometimes called the "beneficial" or the "complete enjoyment" rule, which holds that the extent of the grantee's private right of user in streets and alleys shown on a plat, to which by reference his conveyance was made, is limited to such streets and alleys as are reasonably or materially beneficial to him, and of which the deprivation would reduce the value of his lot. This is the view adopted by this court in Thorpe v. Clanton, supra, and adhered to in the recent case of Drane v. Avery,72 Ariz. 100, 231 P.2d 444. Besides these there is the "narrow" view, sometimes referred to as the "necessary" rule, that the private right of way of user accruing to a grantee, to whom the conveyance is made by ...


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