J. F. McNEIL and Emma L. McNeil, husband and wife, Appellants,
W. C. ATTAWAY, Cora Attaway, and R. S. Attaway; Webber Mackey, Marjorie Mackey, and Blakely Oil Co., Inc., a corporation, Appellees.
Supplemental Opinion on Rehearing Jan. 20, 1960.
[87 Ariz. 105] Rawlins, Davis, Christy, Kleinman & Burrus, by Chester J. Peterson, Phoenix, for appellants.
Wilmot W. Trew, and Langmade & Sullivan, Phoenix, for appellees.
This is an appeal by J. F. McNeil and Emma L. McNeil, his wife (hereinafter called plaintiffs), from a judgment in favor of defendants decreeing that plaintiffs take nothing in their action to quiet title and that their complaint be dismissed, and from the court's order denying a motion for new trial.
The Essential facts--controlling in a determination of this appeal--are not in dispute and may be succinctly summarized as follows: On January 13, 1948, Frank A. Carney, et ux. by warranty deed acquired title to a 20-acre tract described as the
'East half of the Northwest quarter of the Southeast quarter of section nineteen, Township one (1) North, Range five (5) East, G. & S. R. B. & M.'
(Note: The deed was given subject to various easements and reservations set forth therein--none of which are material to the issues in the instant suit.)
The northern boundary of the tract fronts the main highway between Tempe and Mesa, known as 'The Apache Trail'. At the time the land was purchased by Carney it was unimproved acreage used for growing crops. The Nace Drive-in-Theatre property adjoined it on the East, and tracts owned by Mendoza and Cota (the former's son-in-law) adjoined it on the West. There were then fences on three sides, i. [87 Ariz. 106] e., North, East, and West. Apparently, without a survey being made, parties had previously erected the East and West fences referred to, supra.
The Carneys were not averse to 'making a profit' on their land investment, and hence very shortly after acquiring the tract in question--and without having fenced or placed any other improvements thereon--they listed the property for sale with a realty firm with instructions to offer it for sale in four strips, each to contain a 165-foot frontage on the main highway and thence running to the Southern Pacific Railway Company's right of way on the South. Each tract would thus contain approximately five acres.
Such tracts were sold by the real estate salesman and deeded by Carney in the following order. (We shall use the numbering as testified to by the various witnesses and as shown on plats in evidence.)
Tract No. 1
'The West 165 feet * * *' was sold to plaintiffs (McNeil), recorded deed of conveyance being dated January 12, 1949. This tract, which adjoins the Mendoza-Cota lands to the West, is not embraced in the instant suit and no reference is made to it either in the complaint or judgment.
Tract No. 2 (The land involved in this lawsuit)
Specifically described as:
'The East 165 feet of the West 330 feet, of the East half of the Northwest quarter of the Southeast quarter of section Nineteen (19) * * *.' (Township and Range, plus easements and reservations as shown in the grantor's deed, supra)
was sold to plaintiffs, deed of conveyance dated October 11, 1949.
Tract No. 3
'The East 165 feet * * *' strip was sold to Charles Nealy, and he later conveyed to a Mr. Cameron. This tract adjoins the Nace Drive-in-Theatre lands on the East. This area is not involved in any way in the instant suit.
Tract No. 4
'The East half of the Northwest quarter of the Southeast quarter of Section Nineteen (19), Township One (1) North, Range Five (5) East, of the Gila and Salt River Base and Meridian, Maricopa County, Arizona; * * * Except the East 165 feet; and Except the West 330 feet'
was sold to defendants W. C. Attaway, his sister and brother; later they conveyed to defendants Webber Mackey, et ux., who in turn leased a portion of the tract to defendant Blakely Oil Co., Inc., for the operation of a service station. See, Mackey v. Blakely Oil, 77 Ariz. 169, 268 P.2d 674, for a recitation of their interests. Insofar [87 Ariz. 107] as this appeal is concerned all of the parties just referred to (who are the appellees-defendants) stand in the shoes of the Attaways and they shall hereafter be referred to merely as defendants. This tract is not directly involved in the instant litigation.
In passing it should be noted that neither Carney (the common grantor) nor any of the purchasers of the four tracts, supra, at that time went to the trouble or expense of having the lands purchased by them surveyed to establish the lines specifically called for in their deeds; had they done so all of the present difficulties could have been avoided. The whole trouble now arises from the fact that the Northeast corner of the East boundary fence of the Memdoza-Cota property lies approximately 16 1/2 feet west of the true boundary line thereof, and in the beginning a stake there was erroneously assumed by the salesman to be the correct starting point for the first working measurements. Carney, in connection with the four sales, did not personally go onto
the property to show the parties the boundaries of the lands being purchased by them.
A dispute later arose between plaintiffs and defendants as to the true boundary line between tracts numbered 2 and 4, supra. This caused each of the parties, in the year 1952, to have a separate survey made of their properties by the competent civil engineering firm of F. N. Holmquist. The system followed by the engineer was that set forth in the Manual of Surveying used by the United States General Land Office. Established government corners were found to have been previously monumented at the northeast, the southeast and the southwest corners of the quarter section in which these lands lie. Therefore, no difficulty was experienced by the engineer in surveying out and platting the land called for in their respective deeds covering said tracts. See, 26 C.J.S. Deeds § 30-a. In establishing the common boundary line between tracts 2 and 4, supra, it was disclosed that defendants in the northwest corner of their purported holdings were encroaching--with service station facilities--a distance of approximately 16 1/2 feet in width over on to plaintiffs' land in tract 2, which encroachment extended to a depth of approximately 150 feet. Incidentally the survey showed that defendants' tract 4--following the description set out in the deed--actually had a frontage of 165.08 feet on the north. Engineer Wier, of the Holmquist firm, testified without contradiction that there was not a single fence in the area on the lines called for in the various deeds.
Fortified with this survey, the plaintiffs first made demand--under the provisions of A.R.S. § 12-1103-that defendants execute a quit claim deed to the disputed strip, and when this was refused they filed, on April 30, 1953, a complaint against defendants to quiet their title to the lands described in tract No. 2, supra. In a second cause of action they prayed for immediate possession [87 Ariz. 108] thereof, costs and attorney's fees, plus a reasonable sum as rental for their property then being used and possessed by defendants. Later a supplemental amended complaint was filed naming as a defendant the Blakely Oil Co., Inc., which corporate entity had previously intervened in the case. Defendants answered and by counterclaim asked that title to the disputed strip be quieted in them, or in the alternative for reformation of the instruments of title.
After a trial to the court, sitting without a jury, the court expressed regret that he did not have the common grantor and other parties owning land in the area before him as parties to the suit so that he might reform all of their deeds. Nevertheless judgment was entered dismissing plaintiffs' complaint, establishing a dog-legged division line between the properties of the parties hereto, and entering judgment on the counterclaim in favor of defendants, quieting their title to the disputed strip of plaintiffs' lands on the basis of the new boundary line established by the decree.
The assignments of error are to the effect that the judgment (a) is not supported by competent evidence, (b) is contrary to law, and (c) the court was without jurisdiction to establish by judicial fiat a common boundary line between the properties of the parties.
The basic legal issue presented by this appeal is whether the judgment is legally reconcilable with the crucial facts, referred to in the motion for judgment made by plaintiffs' counsel at the close of all of the evidence, viz.:
'The evidence is uncontradicted that the boundary lines, the government quarter section corners, were known to exist, that they were not obliterated or destroyed. The testimony further shows that the deeds which conveyed the property to Mr. McNeil are unambiguous, the physical survey made by competent surveyors shows beyond a doubt that the property as described in parcel No. 2 is being encroached upon by parcel No. 4 approximately 16 1/2 feet.'
For the reasons hereinafter stated, it is our considered opinion that the trial court erred in ...