Wacker v. Price

STANFORD, Justice.

Action was filed in the superior court by appellants to quiet title in them to Lot 8, Block 31, Grand Avenue Addition to the City of Phoenix, Arizona, on the theory that their lot was being encroached upon by the appellees (defendants) who owned lot 6 but believed that their property, after a survey was made, did not encroach upon lot 8.

The case was tried before the court without a jury, and judgment was rendered in favor of appellees, from which judgment the appellants have appealed to this court.

On May 16, 1944, one Ida Shaw, a widow, gave a warranty deed to these appellants to said lot 8. On February 1, 1945, appellees also received from said Ida Shaw a warranty deed for lot 6, block 31 of said Grand Avenue Addition. The corners of neither of said lots were established by the Grand Avenue Addition map and the dimensions were not established except that most of the lots south of a main street to the north were accepted by owners to be 50 feet in width and it is stipulated that said lots are 50 feet in width. In November, 1946, the appellees secured a building permit to build on said lot 6 and erected a six room modern brick residence thereon.

When the two lots were purchased by the respective grantees no buildings were upon them nor were there any fences or other signs showing the location of the lots, except to the south of lot 8 was lot 10 owned by Della C. Newcomb. She had a home upon the lot which was built approximately 20 inches south of the south line of lot 8 and her north line was designated by a fence. Della C. Newcomb bought the premises in 1915 and has lived there since. There was also constructed on lot 10 a garage at the southwest corner of the lot. There was also a fence along the south line of the Newcomb lot, and at the time of the trial it had been there for 20 years and she claimed that the size of her lot was 50 x 137% feet. She also claimed that she had her lot surveyed by Holmquist and Robinson in the year 1919.

According to the map of Grand Avenue Addition, which was filed before the addition was taken into the City of Phoenix, (filed of record in 1887) the lots in block 31 alternate, that is to say, the even numbers are on the east side and the uneven numbers on the west side of the block.

Venus McGinnis testified that he owned lot 12 in block 31 and stated that there was a fence on the north side of his lot and on the south side there was a hedge of trees, and when asked how old the trees were he answered: “Ever since — I don’t know, they have been there forever almost.” He had two buildings upon his lot.

Chester Adams testified that he lived in the Grand Avenue Addition and that his lot was number 14; that he had lived there for 15 years, but that he did not build the house, it being there before he obtained it.

One of the maps submitted in evidence which shows the fences, hedges and houses upon the lots in blocks 30 and 31, shows a house on lot 16, block 31, but no testimony was offered concerning it.

As to lot 18, block 31, lying to the south of lot 16, the testimony shows it was owned by Louis Radonick and had been owned by him for 20 years; that he had a house upon it and a fence along the north and south sides, the fence having been there for 20 years. He had owned but sold lots 16 and 20, each of which, from the map referred to, have houses upon them.

The next lot owner to the south is Joseph Shaughenessy, who testified that he lived on lot 2, block 30, being south of block 31, for 35 years and had a lot of trees and a fence on the north side of his lot; that the fence had been there for 20 years and the trees five or six years; that he owned lots 22 and 24 in block 31, being to the north of his lot 2, but there is a street (Cedar Street) between lot 2, block 30 and lot 24, block 31. He testified that there was an iron stake in the north corner and there was a line of Tamarisk trees on the north boundary of lot 22. He also testified relative to these two lots: “We have a steel stake in the ground at the corner of each lot on the north side and south side.”

Appellants contend that appellees claimed an interest in lot 8 which lot appellants claim to own, and the interest was adverse to appellants and the testimony showed that the house constructed upon that portion of lot 8 owned by appellants was an encroachment of 17.20 feet on the east end, or front, of the house, and 16.83 feet on the west end, or rear of the house.

■F.'M. Holmquist, called as a witness for appellants, testified that he was a civil engineer and had been such since 1909; that he had made surveys of the lots in blocks 30 and 3Í of Grand Avenue Addition, and at the request of the appellant had made a survey in January, 1947, of blocks 30 and 31 of Grand Avenue Addition, and the witness testified that he made reference to the original Grand Avenue map recorded .in Book 1, page 9 of the records of the County Recorder of Maricopa County, Arizona. Referring to that particular map this question was asked the witness:

“Q. Is this map which counsel for the plaintiff has offered in evidence here, marked Plaintiffs’ Exhibit ‘C’ for identification, does that show that lot lines as they are upon the official recorded map of this property? A. As near as you could tell, yes, 'sir. There may be some slight differences 'which just couldn’t possibly be reconciled. In general they follow very closely.

“Q. You say it follows very closely? A. In general. As regards block 30, I don’t know of any real differences — I mean block 31.

“Q. Block 31 you don’t know of any real differences between this and the recorded map ? A. That is right.”

Harry E. Jones, civil engineer, was called as a witness for appellee and in testifying concerning lot 6 claimed by appellees, he said:

“Q. Now when you made this survey for lot 6 for Mr. Price, I suppose you did examine the ground down to the south part of Block 31 ? A. Oh, I have been aware of that situation out there for several years.

“Q. When you prepared this map did you run into any stakes or markers at the corner of these other lots there in the south part of Block 31 f A. No, sir, I didn’t look for them. I knew where I would find them, I knew they were there. I know Mr. Holmquist has been making surveys out' there from those erroneously placed stakes for years.

“Q. And you told Mr. Price there were markers down there? A. We didn’t discuss that; he didn’t ask me and I didn’t tell him. His lot was all in the clear, no encroachments on his lot, no adverse possession, no fences or anything.

“Q. Now on these other lots in that area, did’ you see these fences and these rows of trees, high trees 20 or 30 feet high ? A. I have known of that'area they own here as I say for 42 years. I have been out there many times. I am thoroughly conversant with it.

“Q. And you have seen those trees for many years? A. Yes.

“Q. In your survey you totally ignored all those ? A. I wasn’t requested to make a survey of property rights, fust Lot 6, Block 31, which I did. Since there were no adverse claims or nothing that would indicate an adverse possession of that particular lot. We weren’t interested any further.’’ (Emp. Sup.)

F. M. Holmquist, witness for appellants, under cross examination stated:

“Q. Now getting back to this official map, it has no measurements on it at all. A. No, sir.

“Q. Just state the scale, 300 feet to the inch? A. That is what it says on the map, yes, sir.

“Q. What is the distance shown on the official map from the south line of McDowell to the north line of — of what used to be Elm Street? A. No distance given.

“Q. Can you give us that distance by looking at the map? A. No, sir, not from this map. I don’t have any other records here that would give that.

“Q. Those streets in there, what are those streets? A. Well, they are generally 60 feet. The map doesn’t say that, but by collateral evidence they have been determined to be 60 feet.

“Q. And you have generally accepted them as being 60 feet? A. Yes, sir.

“Q. Now granting all these lots in Blocks 33 and 32 and 31 as shown on the official map are 50 foot lots and the streets are 60 feet in width, what is the distance from the northeast corner of that subdivision, 33 feet south of the north line of that quarter section, or the north line of that section, to the north line of Elm Street as shown on the map? A. From the section line or the south line of McDowell.

“Q. The south line of McDowell? A. Each block would be 600 feet, and two blocks would be 1200 feet, plus Madrona Street, would make about 1260 feet to the north line of Elm Street, based on 50 foot lots.

“Q. Then there would be 33 feet north of that line to the center of McDowell ? A. Yes, sir.

“Q. Which is the north line of Section 6? A. Yes, sir, based on the assumption.

“Q. Are there any City monuments located along Fifteenth Avenue between McDowell and Roosevelt? A. Yes, sir.

“Q. Did you make any use of any of those monuments ? A. I tied into them.

“Q. I didn’t understand. A. We tied into them.

“Q. Did you make any use of any of the distances on the City map between those monuments? A. No, sir.

“Q. In determining where this line is? A. Not as a basis of the survey, no, sir.”

It is the theory of the appellants that surveys having been made for a long period of time by competent surveyors that the undetermined distances in the Grand Avenue Addition have for many years been settled and that the lots in block 31 have been determined to have a width of 50 feet. When the house in question was built, it was built within a few feet of lot 10, block 31 owned by Mrs. Newcomb for over thirty years, and her north line, being the south line of lot 8, was well defined by a fence.

Carrying out the theory of appellants we quote from the case of Silsby & Co. v. Kinsley, 89 Vt. 263, 95 A. 634, 638: “The actual location upon the ground of original lot lines will control, if capable of being ascertained; but, when such lines have never been surveyed or, if surveyed, their location upon the ground cannot be ascertained, resort may be had to the lines of adjacent lots to determine their location.”

When the appellees had their survey made they could see plainly that something was wrong because there was not enough distance between the south line of appellees’ house now upon the premises, and the north line of Mrs. Newcomb’s place lying to the south, for a 50 foot lot. Therefore it was easily observed that there was an error somewhere. The Newcomb place had open to view a hedge and fence upon it.

In this respect we quote from the quiet title case of Atwell v. Olson, 30 Wash.2d 179, 190 P.2d 783, 786: “* * * The Olsons had ample opportunity to observe all improvements lying south of the hedge. They may not now be heard to say that they failed to see that which was plainly visible and which could have been ascertained upon inquiry. * * * ”

The testimony in this case clearly shows that the lots involved in this litigation were conveyed with respect to and in accordance with the map and plat of the original Grand Avenue subdivision recorded in the office of the County Recorder September 13, 1888. It further appears from the evidence that the monuments from which the original survey was made cannot be accurately located. The evidence does show definitely, however, that parties who purchased lots in this subdivision erected homes, established boundary lines between lots in block 31 where the property involved here is located by building fences and planting trees which have been in existence and recognized by all the property owners and their predecessors in interest ranging from 20 years to 35 years. The exact date when these various fences and trees marking the boundary lines between lots in this block is more or less indefinite, none of which, however, appear to have been less than 20 years.

Based upon the rule of reason it would appear to us that where a situation like this obtains the boundary lines between the various lots in the subdivision as established by the parties themselves must control in determining the boundary thereof. Every lot in block 31 south of lots 6 and 8 here involved have definite boundaries established by acquiescence of the parties for a much longer period than is required to establish title by adverse possession.

In 110 American State Reports, page 681, under the title of “Resurveys and their Purpose and Effect”, the following is found: “ * * * In Diehl v. Zanger, 39 Mich. 601, where the first survey of lots involved in litigation was made by one Campau, and a resurvey made years afterward by the city surveyor showed that the practical location of the whole plat was wrong, it was declared that a resurvey, made after the disappearance of the monuments of the original survey, is for the purpose of determining where they were, and not where they should have been, and that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared. ‘Nothing is better understood,’ said Justice Cooley in delivering the opinion of the court, ‘than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. This is as true of the government surveys as of any others, and if all the lines were now subject to correction on new surveys, the confusion of lines and titles that would follow would cause consternation in many communities. Indeed, the mischiefs that must follow would be simply incalculable, and the visitation of the surveyor might well be set down as a great public calamity. But no law can sanction this course. The (city) surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. * * * The city surveyor should, therefore, have directed his attention to the ascertainment of the actual location of the original landmarks set by Mr. Campau, and when those were discovered they must govern. If they are no longer discoverable, the question is where they were located; and upon that question the best possible evidence is usually found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known: Stewart v. Carleton, 31 Mich. 270. As between old boundary fences and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are.’ * * * ”

In 22 American State Reports, Ancient Boundaries, page 35, we find the following: “ * * * For the purpose of establishing ancient boundaries, by locating calls for corners, etc., the declarations of the parties in interest, or those who assisted in making the old survey, are admissible, when such persons are unable to testify orally or by deposition, by reason of sickness or death: Whitman v. Haywood, 77 Tex. 557, 14 S.W. 166; Griffith v. Sauls, 77 Tex. 630, 14 S.W. 230. Ancient fences, used by a surveyor in his attempt to reproduce an old survey, are strong evidence of the location of the original lines, and if they have been standing for many years, should be taken as indicating such lines, even against the evidence of a survey ignoring such fences, based upon an assumed starting-point: Beaubien v. Kellogg, 69 Mich. 333, 37 N.W. 691, for it will not do to allow boundaries to be disturbed upon a survey made from an assumed starting-point, without proof of its being a true line, located and fixed by the original survey. * * * ”

In the case of Veve y Diaz v. Sanchez, 226 U.S. 234, 33 S.Ct. 36, 57 L.Ed. 201, in a plat of Bello Sitio made in 1907 showing that it contained 415 cuerdas and a mortgage was given upon 400 cuerdas in the subdivision and action was brought upon it and the defendant claimed that 134 of the lots or cuerdas supposed to be within the subdivision were in fact not in it and that only 279 were left and that the shortage was due to encroachments by adjoining land owners, it seems that in making the survey of the subdivision the surveyor made it by following ditches, fences, trees, stakes and the documents of adjoining land owners, all of whom were present when the surveys were made and assented to its correctness. The land owners were also examined as witnesses. Some of them had owned the property from the date of the mortgage and others for a shorter time, but all testified that they knew of no change in the lines. The boundaries as fixed by the survey were upheld by the Supreme Court of the United States:

Applying these principles to the instant case the grantor, Mrs. Shaw, conveyed lot 8 to the plaintiff Wacker and lot 6 to the defendant Price, true the boundary between the grantees was not by express grant designated by Mrs. Shaw, the grantor, but she did convey lots 6 and 8 with reference to the north boundary line of lot 10 owned by Mrs. Newcomb since 1913, which north boundary line had been established for at least 30 years and conformed with all of the other boundary lines between the other lots in the block south of her as fixed and acquiesced in by the property owners thereof. Therefore Mrs. Shaw in conveying lots 6 and 8 of the Grand Avenue subdivision to the City of Phoenix conveyed said lots with reference to said boundary line as fixed by the property-owners in said block. And since it has been stipulated that the lots in block 31 are 50 feet in width the grantees took said conveyances with such monuments as have been established by the property owners and their predecessors in interest in block 31 by implied agreement and acquiescence over a period of years.

As was said in the Oregon case, Trotter v. Stayton, 41 Or. 117, 68 P. 3; Diehl v. Zanger, 39 Mich. 601, that it is a matter of common knowledge that the great majority of original surveys are more or less inaccurate and since it has always been the rule that courts must resort and be bound by the best evidence available, it follows that the boundaries fixed by the property owners themselves in the absence of the inability of surveyors to definitely fix the monuments from which the original survey was made must control and that the city surveyor nor any other surveyor has any authority to establish new boundaries which must of necessity affect the property rights of all property owners concerned where they cannot establish title by adverse possession.

The recent survey of this property for the purpose of trial made by F. M. Holmquist, civil engineer, shows a part of the house constructed by appellees to be located upon the property of appellants. Under all of the circumstances it is plain to this court that it should apply its equity powers in order to be fair to all of these litigants. We hold that lot 8 according to the survey of Grand Avenue Addition, being a lot SO feet in width lying next north of the fence, or the hedge of Mrs. New-comb, the owner of lot 10, is the property of appellants. The court therefore reverses the judgment and remands the case to the trial court with instructions to take testimony as to what portion of lot 8 appellees will require for a reasonable enjoyment of the improvements constructed thereon and to fix the damages suffered by appellants as a result of the wrongful taking of said property based upon a fair market value of lot 8 at the date of taking and the portion thereof required by appellees for the proper enjoyment of their improvements thereon and what damage, if any, has been done to the remaining portion of said lot 8, and require appellees to pay appellants the determined value for the space to be taken and damage, if any, as above mentioned. If appellants do not choose to accept same, then permit the appellees to pay appellants the determined value of the whole of lot 8 as fixed by the trial court and take title thereto, but should the appellees decline to pay to appellant the amount fixed, then the court shall enter judgment quieting title to lot 8, described as a lot SO feet in width adjacent to lot 10, block 31, Grand Avenue Addition and immediately north of the north side line of said lot 10, in appellants in accordance with the prayer of their complaint. Appellants to recover their costs in the trial court and on this appeal.

LaPRADE, J., concurs.