[81 Ariz. 209] William W. Nabours, Yuma County Atty., F. Lewis Ingraham, Deputy County Atty., Yuma, for appellant.
Westover, Mansfield, Westover & Copple, Yuma, for appellee.
LA PRADE, Chief Justice.
This case presents an appeal from a judgment quieting title in appellee, Leidendeker, in and to certain property in Yuma County, and decreeing that appellant, Yuma County, has no right, title or interest therein.
The action was brought by Frank E. Leidendeker against Yuma County and other defendants who might have or claim to have an interest in Block 7 of 'Thomas Addition to the City of Yuma', by virtue of a certain plat of record of said 'addition', wherein it was recited that Block 7 was dedicated to the public use forever, for park and public building purposes. The case was submitted to the trial court on an agreed statement of facts. The purpose of the action was to secure an adjudication that the dedication was without effect or if once effective had been abandoned and that, as a consequence, all right, title and interest in Block 7 vested in the plaintiff as owner of record.
The essential stipulated facts are that on November 1, 1905, William Thomas was the owner in fee of the SE 1/4 of the NE 1/4 of Section 29, T. 8 S., R. 23 W., G. & S. R. B. & M. (forty acres), and on that date caused to be made a plat of this real property, subdividing it into blocks, streets and alleys. On November 11, 1905, this plat was recorded in the office of the county recorder of Yuma County as the Thomas Addition to the City of Yuma. The plat includes a reference to Block 7 of the subdivision, the property in controversy here, which reads as follows:
[81 Ariz. 210] '* * * Block 7 as shown on said plat is hereby dedicated to public use forever, for park and public building purposes only.'
Thomas Addition was not within or contiguous to the corporate limits of the City of Yuma at the time the plat was recorded. It is now contiguous to but not within the corporate limits. There is no record that the plat of Thomas Addition was submitted to the Common Council of the City of Yuma or that the plat was ever approved by that body prior to its recordation.
On December 23, 1905, William Thomas, without making any reference to the plat, and without any mention of his prior dedication, conveyed the forty acres to Charles W. Thomas. Approximately a year later Charles W. Thomas reconveyed the acreage to William Thomas without any reference to the plat and without any mention of the dedication. About three years later William Thomas conveyed Blocks Nos. 1 to 10, which constituted the entire forty acres, to William Preston Hill, and in the deed drawn in connection with that conveyance not only made reference to the plat but also referred to the dedications contained therein as follows:
'* * * subject to the dedications to the public made by the grantor herein, as shown by the aforesaid plat which is hereby referred to for further particulars. * * *'
Since that date title to the south one-half of the subdivision, including Block 7, has passed by mesne conveyances to the appellee who acquired the property in 1946. In each of these conveyances the recitals in the deed made specific reference to the plat which was recorded by William Thomas. Since acquiring the property the appellee has sold lots in Blocks 9 and 10 of the subdivision with reference to the plat. Approximately twenty-four residences have been constructed upon lots within the subdivision as a whole. To date Block 7 has not been used for either park or public building purposes. No improvements have been made upon Block 7 since the date of the recorded plat, and the property is at the present time raw desert land, unleveled and covered only with desert foliage.
After filing the plat of the Thomas Addition, and up to and including the year 1927, Block 7 was not assessed to the name of the record owner and did not appear on the tax rolls of the County of Yuma. In the years 1928 and 1929 Block 7 was assessed in the name of the record owners, a valuation fixed, and taxes paid to the county treasurer. During the year 1930 and continuing to the present time Block 7 has appeared upon the tax rolls of the county and has appeared in the tax assessment of the record owner, but no valuation was fixed nor have any taxes been paid during this period.
[81 Ariz. 211] The principal issues presented by this appeal are (1) whether any dedication of Block 7 ever became effective, and (2) if such dedication became effective has it been abandoned.
In 1905, when the plat which allegedly gave rise to the dedication was filed and recorded by William Thomas, there were several paragraphs of the 1901 Code applicable to dedications. These were paragraphs 607 through 612 (Sections 9-251, 2, 3, 4, A.R.S.1956), under Chapter 9, Title 11, designated 'Cities and Towns', and paragraphs 4098 through 4103 (Section 9-1141, A.R.S.1956), ...