Allison v. State
| Decision Date | 17 November 1966 |
| Docket Number | No. 7832,7832 |
| Parties | John H. ALLISON, Jr., et al., Appellants, v. STATE of Arizona, Appellee. |
| Court | Arizona Supreme Court |
Jarrett S. Jarvis, Phoenix, for appellant Buckhorn Farms, Inc. Standage & Allen, Mesa, for appellants.
Darrell F. Smith, Atty. Gen., Robert W. Pickrell, Former Atty. Gen., Stanley Z. Goodfarb, Special Asst. Atty. Gen., and Kenneth G. Flickinger, Jr., Special Asst. Atty. Gen., Phoenix, for appellee.
Appellants in this joint action, by their first claim for relief, seek to quiet title to certain parcels of real property to which they assert ownership in fee simple. By their second and third claims for relief, they seek damages for the wrongful taking of a portion of their properties for use as a highway. On defendant's motion, the court below dismissed plaintiffs' complaint with prejudice. The only issue on this appeal is whether the motion to dismiss was properly granted. We have concluded that it was not.
It appears from the pleadings and answers to requests for admissions and interrogatories that, in the months of July and August of 1959, plaintiffs' predecessors in interest acquired, by patents from the United States Government, certain portions of the south one-half of the northeast one-quarter of Section 19, Township One North, Range Seven East of the Gila and Salt River Base Meridian; that the midsection line of Section 19 is the south boundary of plaintiffs' properties; and that for many years prior to 1959, a highway ran along the midsection line, being one of the principal national highways across Arizona, known as US 60--70. It is the right of way for this highway, where it passes over the plaintiffs' properties, which is the subject matter of this dispute.
Plaintiffs submitted to the defendant requests for admissions, one request being that defendant admit that the photocopies attached to the request were patents from the United States of America to plaintiffs' predecessors in interest. This request was answered with a denial for the reason 'we have never seen the original patents and consequently cannot compare the copies to the originals.' Palpably, this was not a denial in good faith because the information was readily available in the United States Land Office in Phoenix. The trial court was justified in treating the answer to the request for an admission as being answered in the affirmative.
Plaintiffs' patents from the United States of America are on a printed form and contain certain printed exceptions to the grants. In addition, these typewritten words are to be found in the patents after the habendum clauses: 'There is also reserved a right of way for a Federal Aid Highway under the Act of November 9, 1921 (42 Stat. 212).'
On the morning of the trial, before any evidence was introduced, defendant moved to dismiss plaintiffs' action. Obviously the motion to dismiss did not lie, since the complaint stated a claim for relief. While a motion to dismiss may be granted by Rule 12(b), Rules of Civil Procedure, 16 A.R.S., on the ground of failure to state a claim for relief, the court must, where matters outside the pleadings are presented and not excluded, treat the motion as one for summary judgment and give all parties a reasonable opportunity to present material pertinent to a motion for summary judgment pursuant to Rule 56, Rules of Civil Procedure. For the reason that there were issues of fact which could not be resolved on the record as it then existed, the court below erred and the judgment of dismissal must be set aside.
In this Court the parties have filed extended briefs. The case, however, is fundamentally simple. Since it may be resolved by the application of well understood and accepted principles of law, it is to these that we address our attention.
In any action to quiet title, a plaintiff must succeed on the strength of his own title rather than the weakness of his adversary's. Berger v. Bhend, 79 Ariz. 173, 285 P.2d 751; Price v. Sunfield, 57 Ariz. 142, 112 P.2d 210; Hardinge v. Empire Zinc Co., 17 Ariz. 75, 148 P. 306. It is, of course, the universal rule requiring no citation of authority, that it is plaintiffs' burden to establish their titles.
Plaintiffs established, through the patents, grants to themselves from the United States of America in 1959. The same instruments also established reservations of a right of way for a federal aid highway. Plaintiffs cannot claim under the patents from the United States of America without confirming them, nor can they adopt those portions which operate in their favor and at the same time repudiate those which are counter or adverse to their interest. Keller v. Ashford, 133 U.S. 610, 10 S.Ct. 494, 33 L.Ed. 667; Gibson v. Lyon, 115 U.S. 439, 6 S.Ct. 129, 29 L.Ed. 440. So it has been held under the principle of estoppel by deed, that a grantee, or those claiming under him, cannot deny the binding authority of a reservation or exception in his deed. Russell v. Texas Co., 9 Cir., 238 F.2d 636, cert. denied 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537; Dillon Investment Co. v. Kinikin, 172 Kan. 523, 241 P.2d 493; Hagerty v. Lee, 54 N.J.L. 580, 25 A. 319, 20 L.R.A. 631; State v. Davis (Tex.Civ.App.), 368 S.W.2d 658.
Plaintiffs urge that it is incumbent upon them to establish only the grants of their fees and that it then becomes the burden of the defendant to establish a valid grant of a right of way. While this may be true where the fee is established without reservations in plaintiffs' muniments of title, the defendant's obligation to establish the matters set forth in its affirmative defenses does not arise until the plaintiffs have established perfect legal titles in themselves. If there is an exception or reservation appearing on the face of a chain of title, the party relying thereon must show that he is not within the exception or reservation. Maxwell Land-Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458, 38 L.Ed. 279; Smith v. United States, 5 Cir., 153 F.2d 655; Davis v Commonwealth Land and Lumber Co., C.C., 141 F. 711; Hill v. Barner, 8 Cal.App. 58, 96 P. 111; Seddon v. Harrison (Tex.Civ.App.), 367 S.W.2d 888.
Thus in Maxwell Land-Grant Co. v. Dawson, 151 U.S. 586, 14 S.Ct. 458, supra, the rule is stated that:
'There is a general rule, applicable to both conveyances and statutes, that where there is an exception in the general granting or enacting clause, the party relying upon such general clause * * * must also show by the testimony that he is not within the exception.' 151 U.S. at p. 604, 14 S.Ct. at 464.
And in Hill v. Barner, supra, the court said:
'The deed under which Haggin became the owner of the grant, reserved certain portions thereof from the sale to Haggin, and it was the duty of, and incumbent on plaintiff in order to trace his title to and identify it with the Haggin title, to show that the lots were not within the excepted portion.' 8 Cal.App., at p. 64, 96 P. 111, at p. 114.
It is, therefore, the plaintiffs' burden to show that the claimed intrusion of the highway upon their property was not a right of way reserved for a federal aid highway. Unless plaintiffs can do so, they cannot prevail in an action to quiet title.
There was admitted by the State, on plaintiffs' request, a document marked 'Exhibit L', which is an engineer's plat of the midline of Section 19. It shows a 50-foot strip north of the midline and a 100-foot strip to the north of, and adjacent to, the 50-foot strip. Contained on the exhibit is the following:
'ARIZONA STATE HIGHWAY DEPARTMENT
'Sketch showing parcel of land in Maricopa County, Arizona, requested to be withdrawn from entry to be used as a 100 additional right of way on the northerly side of present r/w Federal Aid Project No. 93--A(2)42 Mesa-Florence Jct. Hwy.
(S) R. HUTCHINS
Arizona State Highway Eng'r.
'CERTIFICATE OF REGISTER U.S. GENERAL LAND OFFICE
'I, hereby certify, that according to the records of this office, the parcel of land shown on this sketch (is--are) unappropriated and unreserved public lands. Date:--5--23--42
(S) THOS. F. BRITT
Register
'U.S. DEPARTMENT OF INTERIOR
'Pursuant to the provisions of Section 17, of the Act of Congress, approved November 9, 1921, 42 Statute 212, this map is approved. Subject to all valid existing rights, but reserving rights of way for canals and ditches constructed by authority of the United States.
(S) OSCAR L. CHAPMAN
Assistant Secretary'
Exhibit L discloses that on May 22, 1942, the State of Arizona requested the United States to withdraw from entry, for use as a right of way, 100 feet to the North of a then-existing right of way of 50 feet, this 50 feet being a federal aid project, the Mesa-Florence Junction Highway. The United States Department of the Interior, on August 24, 1942, approved the map attached to the application. The application of the State of Arizona for a 100-foot right of way north of the then-existing right of way, having been approved, on its face establishes beyond controversy the existence of 100 feet as a right of way reserved from the plaintiffs' patents by the typewritten reservations. But, while a reservation for a 100-foot right of way has been established, the record is devoid of proof of the existence or nonexistence of a strip 50 feet wide, north of the section midline in use as a federal aid highway.
As stated, it was the plaintiffs' burden to establish that the asserted 50-foot strip was not a right of way for a federal aid highway; but plaintiffs were not given the opportunity to establish the nature of this strip because of the procedural irregularity in granting the motion to dismiss prior to the introduction of any evidence at the trial. If we treat the defendant's motion as one for summary judgment, then it is afflicted with the vice that it did not comply with the directions of Rules 12(b) and 56. The court below should have directed plainti...
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