Harvey L. FRITTS and lone Fritts, his wife, Appellants,
A. G. ERICSON and Maude M. Ericson, his wife, Appellees.
[87 Ariz. 228] Langmade & Sullivan, and Larry Doyle, and Otto H. Linsenmeyer, Phoenix, for appellants.
Locklear & Wolfinger, Prescott, for appellees.
This is an appeal from a judgment entered in an action instituted by plaintiff for ejectment of defendant from certain real property, to which a counterclaim was filed by defendant wherein he sought to quiet title to the disputed property against plaintiff. The trial court held adversely to the plaintiff in the ejectment action, and entered judgment quieting title in the defendant on his counterclaim and awarding damages in the sum of $100. This appeal followed.
The case arose as follows: Harvey Fritts and Ione Fritts, his wife, plaintiffs below [87 Ariz. 229] and appellants herein (henceforth dnominated plaintiff), sought to eject defendants-appellants--A. G. Ericson and his wife Maude M. Ericson (hereinafter called defendant)--from certain land in Yavapai County described in the complaint as:
'That parcel of land lying between the true section line forming the south boundary of Section 12, T14N, R2W, of the Gila and Salt River Base and Meridian, Yavapai County, Arizona, and the Waara line, approximately 400 ft. north of the aforesaid true section line, and lying west of the westerly right of way line of U.S. Highway 89 and east of the west line of the E1/2 of the SW1/4 of Section 12, as well as all properties lying immediately to the north of the aforesaid described property, and upon part of which the defendants have erected commercial buildings.'
Plaintiff also prayed for damages and costs. This small tract (not more than an acre or two) lies within the SE1/4 of SW1/4 of Section 12, which property is included in plaintiff's deed acquired January 7, 1956, from the Western Motels, Inc. Note: it is shown as Lot 1 of Pltf's Exh. No. 29.
Defendant in his answer denied any encroachment upon the land described in plaintiff's complaint and counterclaimed (improperly designating it a 'crossclaim') to quiet title to various lands in the area--the legal title to which had been acquired by him in the year 1936 from LeRoy Anderson. This included, inter alia,
'All that portion of the Northeast Quarter of the Northwest Quarter (NE1/4 NW1/4) of Section Thirteen (13), Township Fourteen (14) North, Range Two (2) West, G&SRB&M: lying West of the Prescott Jerome Road; * * *.' Note: This tract contains approximately 4 acres and is the Ericson home tract.
Defendant also prayed for damages.
The primary dispute is over the land upon which a structure known as the 'DelView Inn and Trading Post' was erected in 1946 by defendant--alongside U.S. Highway 89--north of Prescott in the rough but picturesque Granite Dells area. Both parties contended that this structure lay within the boundaries of their deeded lands. The whole difficulty arose by reason of the fact that defendant failed to have his holdings properly surveyed before erecting this expensive structure.
It will be noted this particular parcel of land lies adjacent to the section line dividing sections 12 and 13. The preliminary factual issue, therefore, was whether it fell in Section 12, and thus was on plaintiff's property, or in Section 13, on defendant's land. The evidence of the civil engineers called by the respective parties indubitably established the true section line [87 Ariz. 230] as lying some 400 feet south of the exterior boundaries of Del View Inn, thus placing the structure cleraly within plaintiff's holdings in Section 12. This fact is conceded in defendant's brief.
Defendant, however, in his counter-claim--by trial amendment--impliedly alleged that he had acquired title to the Del View Inn property by adverse possession, even if it was not included within the lands deeded to him. The basic issue as to this phase of the appeal then became whether defendant could prove adverse possession under the ten-year statute of limitations (A.R.S. § 12-526) sufficient to divest plaintiff's title to this tract
The plaintiff having made his prima facie case ofr ejectment by proving that the disputed strip of land set forth in his complaint was within the property deeded to him, the burden then fell upon the defendant to prove a superior title acquired by adverse possession. In order for him to prevail, he would need to show affirmatively that as to the very land in ...