Gibbons, Kinney & Tipton, Phoenix, for appellant.
[83 Ariz. 95] Laney & Laney, Phoenix, Terrence A. Carson, Phoenix, of counsel, for appellees.
This is an appeal by the appellant-defendant from a judgment entered on the motion of appellees-plaintiffs for judgment on the pleadings, upon the grounds that (1) defendant's answer does not state a legal defense, or any defense at all, to plaintiffs' amended complaint, and (2) that the defendant, by its answer, admits and confesses the allegations of the amended complaint to be true.
For an understanding of the pleadings, the pertinent part of the amended complaint and the averments in the answer are set forth:
'That the plaintiffs are credibly informed and believe that the defendant Dons Club makes some claim adverse to the plaintiffs in or to said premises, or some part thereof; but that in truth the defendant has no right, title, claim or interest in or to said premises, or any part thereof.'
'The plaintiffs further state on information and belief that any and all claims
which the defendant makes, or may make, to said premises adverse to the plaintiffs are predicated upon that certain document entitled 'Grant of Easement', recorded in the office of the County Recorder of Pinal County, Arizona, on April 12, 1938, under Fee No. 63341, by which George Curtis and Aurora V. Curtis, his wife, granted to said defendant, subject to the conditions hereinafter alleged, the right, authority and easement to erect and maintain a monument and marker upon, and otherwise beautify, that certain portion of the abovenamed premises described as follows, towit: (legal description).'
'That said 'Grant of Easement' expressly provides that in the event the defendant Dons Club should cease to use said premises described in paragraph IV above for the purpose aforesaid, then and in such case the said right, authority and easement would terminate and the said 'Grant of Easement' become and be null and void; that although the defendant for a time used said strip of land for the purposes mentioned in said 'Grant of Easement', nevertheless, heretofore and at a time at least five years prior to the date of filing this complaint the defendant Dons Club ceased to use said strip of land for said purposes, or to use the same at all, and ever since said time has continued in such failure to use said strip of land for said purposes, or at all; and that by virtue of the [83 Ariz. 96] premises the said 'Grant of Easement' is now null and void, and the defendant has no interest thereunder, or at all, in the premises described in paragraph II of this complaint or in that part of said premises described in paragraph IV of this complaint.'
Answer to Amended ...