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Berger v. Bhend

Supreme Court of Arizona

July 5, 1955

Otto BERGER, an unmarried man, and Fred Berger, an unmarried man, Appellants,
Ernest BHEND and John Wiehl and Grace Wiehl, his wife, Appellees.

Page 752

[79 Ariz. 175] Albert W. Gurtler, Mesa, and Marvin Johnson, Phoenix, for appellants.

Ryley, Carlock & Ralston, Phoenix, for appellees.

PHELPS, Justice.

Appellants, the Bergers, prosecute this appeal from a judgment of the trial court quieting title to certain land described in the pleadings in appellee Ernest Bhend and decreeing that appellants and all who claim under them are without any right whatsoever in and to said real property or any part thereof, and from the order denying appellants' motion for a new trial. The parties hereto will be hereinafter designated by their surnames.

Bhend brought an action against Otto and Fred Berger to quiet title to the

NE1/4 of the NW1/4 of Section 1, Township 1 South, Range 5 East of G. & S. R. B. & M., Maricopa County, Arizona.

The actual area in dispute, however, consists of approximately 4 3/4 acres of land indicated by the map incorporated herein and designated therein as the 'disputed area'. The Bergers plead thereto by filing an amended pleading designated as an answer, third party complaint, and counterclaim. Under permission of the court they brought in to said cause of action as third party defendants John Wiehl and Grace Wiehl, husband and wife, and counterclaimed against the plaintiff Bhend asking, among other things, for a reformation of the deed from the Wiehls to the Bergers.

[79 Ariz. 176] The 4 3/4 acres above referred to lie along the west side of an irrigation ditch through which water is taken from the Salt River Valley Water Users' canal which runs along the north side of the NW1/4 of section 1. This quarter section is irrigated from east to west and has a slope of about 36 inches across each 40 acres. The ditch has been in existence for 50 years or more. It takes the water from the Water Users' canal approximately 180 feet east of the 'forty' boundary line and runs in a slightly southwesterly direction so that when it reaches the south end of said tract it is only approximatly 126.8 feet east of the southwest corner of the NE1/4 of the NW1/4.

The evidence discloses that there was a hill or high place covering approximatly three of four acres to the west of the canal which could not be farmed and it was the testimony of Mr. Wiehl when asked by the court:

'Q. How much would it cost to make a ditch on the west side of that fence?

'A. Where the trouble would come would be the lower forty. That lays high and they gave it that slope so that the water would reach the lower end.'

In other words the point at which the ditch received the water from the Water users' canal was chosen in order to get water on the SW1/4 of the NW1/4 of section 1 because it was high. This last described 40 acres is and has been owned by the mother of Otto and Fred Berger for many years and has been farmed by Otto Berger since 1920 and irrigated through this particular ditch.

Page 753

In order that the reader of the opinion may more clearly understand the physical situation of the land here involved, we thought it advantageous to incorporate herein a map portraying the Government survey of the quarter section and the ditch and fence which all of the parties involved herein had pointed out to them and who understood it to be the boundaries of the land they purchased at the time the transaction was consummated.

(Image Omitted)

The Bergers have presented eight assignments of error for our consideration, six of which are predicated upon the contention that the court erred in granting judgment for Bhend and against Bergers and in denying Bergers' motion for a new trial upon the ground that the judgment was neither supported by the evidence nor the law.

Assignment No. 6 is based upon the ground that the court found as a fact:

'(a) That Wiehl, Berger, Shepard [79 Ariz. 178]

Page 754

and Bhend did not agree on a boundary line;

'(b) That the common grantor, Mr. Wiehl, intended to convey:

'(1) Exactly the Northwest Quarter of the Northwest Quarter (exactly 40 acres) to Berger;

'(2) Exactly the east half of the Northwest Quarter to Mr. Shepard (exactly 80 acres).'

We believe a disposition of these assignments will make it unnecessary to discuss assignments Nos. 7 and 8. We further are of the view that the remaining assignments can all be discussed together as ...

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