[81 Ariz. 273] John A. McGuire, Yuma, and Herbert Mallamo, Phoenix, for appellants.
Westover & Mansfield, Yuma, for appellee.
This is a subsequent appeal to Sibley v. Jeffreys, 76 Ariz. 340, 264 P.2d 831. Therein, because of the erroneous admission of prejudicial evidence, this court reversed a judgment finding the Sibleys guilty of unlawful
detainer. At the retrial the jury again returned a verdict in favor of Jeffreys. The lower court denied the Sibleys' motion for a judgment notwithstanding the verdict and this second appeal followed.
The action was commenced to obtain restitution of a certain parcel of land consisting of approximately 120 acres of unsurveyed public domain in Yuma County, Arizona. Count two of the complaint upon which judgment was entered alleges that for more than 10 years Jeffreys has been and now is in peaceful and quiet possession of the land in dispute, that theSibleys asked permission of Jeffreys to enter upon [81 Ariz. 274] and use it for the purpose of raising hogs and farming, that permission was granted, but the Sibleys have asserted a claim in opposition to Jeffreys' right of possession and refuse to vacate. It should immediately be stated that many of the material facts are hotly disputed, but that for the purpose of this opinion all the facts will be taken in the light most favorable to Jeffreys in whose favor the jury's verdict was returned.
The land in question lies close to the east bank of the Colorado River near the City of Yuma, Arizona, and can best be described as bottom lands which until very recently were covered with a growth of mesquite and brush indigenous to that area. On the 15th of September, 1941, Jeffreys purchased for $230 improvements consisting of adobe houses and corrals and certain equipment and other personal property including 71 head of goats located on what was described in the bill of sale as the 'Thomas J. Beasley Holdings'. The 'Beasley Holdings' seemingly consisted of a tract of land belonging to the United States Government of at least 420 acres extending north and south along the east bank of the Colorado River of which the 120 acres in question was the northernmost part. To the north was a tract of deeded land known as the 'Edwards Property', which south boundary was contiguous with the north boundary of the 'Beasley Holdings'. In March of 1947 Harry Sibley and his son, Phil Sibley, purchased the Edwards Property' so that thereby they came into possession of the land lying to the north of the property claimed by Jeffreys. It should not be understood that the dividing north-south boundary line between the 'Beasley Holdings' and the 'Edwards Property' was ever definitely ascertained, at least until shortly before the second trial when engineering surveys were made. The 'Beasley Holdings' were unfenced and uncultivated at the time Jeffreys went into possession except for a drift fence extending one-quarter mile in length along the approximate location of the north boundary line.
In 1941 Jeffreys moved onto the land, lived in the adobe houses, cleared some brush and grazed the goats and otherwise did incidental work about the premises. In 1944 he went to Los Angeles and stayed for approximately one year, during which time the goats were kept by an employee. He returned in December of 1945. About ten days after Jeffreys returned to Yuma the adobe houses burned down and he never lived on the property thereafter. At about the same time he abandoned his operation of the goat herd. Jeffreys testified in this respect at the first trial:
'Q. And you operated the goat herd up to what period of time? A. [81 Ariz. 275] The head was in there until around '46.'
During the years 1946 and 1947 Jeffreys continued to clear brush and trees on the property, although exactly where the record does not disclose. Some of the clearing of brush was on the 120 acres for which the writ of restitution is sought. While the plaintiff and his brother testified that they cut brush off 30 to 40 acres after the year 1948, they were unable to state where, testifying, 'All the way from the levee to the river'. This could be anywhere on the Beasley tract. Jeffreys never leveled, put in ditches, irrigated or farmed any of the disputed acreage. The brush regrew in one or two years to a height and density equal to what it had been before. In the spring
of 1948 Phil Sibley came to Jeffreys and asked permission to farrow some sows on a small part of the disputed acreage and Jeffreys gave his permission to do that and also in the fall of the same year permission to put in 7 to 10 acres of barley. Thereafter, the Sibleys without further permission cleared and put in cultivation approximately 65 to 66 acres of the 120 acres by clearing off cottonwood trees, salt cedars, willows and other river bottom growth and moving dirt to grade, erecting ditches, borders, concrete pipes and headgates. Hog pens were erected and land planted to alfalfa and barley as feed for the hogs. Approximately 2 1/2 miles of woven wire bog fence were put in and an adobe house 16 X 23 and a wooden house 10 X 12 were erected. Two wells were put down. Four years of crops were grown before Jeffreys instituted this suit for restitution of the premises.
After a detailed examination of the record before this court in the proceedings of the second trial, we are convinced that there was no evidence from which the jury could find that after the spring of 1946 Jeffreys was in possession of the 65 to 66 acres put in cultivation by the Sibleys. If Jeffreys' complete occupancy of the entire Beasley tract be conceded as of 1941, it is now clear that for nearly two years prior to the encroachment by the Sibleys on the northern portion thereof Jeffreys had stopped raising goats on the property, had stopped living on the property and was not using or occupying any of the land in dispute with the possible exception that Jeffreys may have cleared some brush as heretofore indicated.
It is Jeffreys' position, however, that the question of the sufficiency of the evidence to support a verdict in his favor was determined by this court on the prior appeal and that the court is bound by that determination as the law of the case. It is true in the original opinion, 76 Ariz. 340, 264 P.2d 831, 833, we stated:
[81 Ariz. 276] '* * * We believe that there was sufficient evidence from which the jury could find that the plaintiff was in possession of the property at ...