Berger v. Bhend, 5780

• Decision Date: 05 July 1955
• Docket Number: No. 5780,5780
• Citation: 285 P.2d 751,79 Ariz. 173
• Parties: Otto BERGER, an unmarried man, and Fred Berger, an unmarried man, Appellants, v. Ernest BHEND and John Wiehl and Grace Wiehl, his wife, Appellees.
• Court: Arizona Supreme Court

Page 751

285 P.2d 751

79 Ariz. 173

Otto BERGER, an unmarried man, and Fred Berger, an unmarried man, Appellants, v. Ernest BHEND and John Wiehl and Grace Wiehl, his wife, Appellees.

No. 5780.

Supreme Court of Arizona.

July 5, 1955.

Albert W. Gurtler, Mesa, and Marvin Johnson, Phoenix, for appellants.

Ryley, Carlock & Ralston, Phoenix, for appellees.

PHELPS, Justice.

Appellants, the Bergers, prosecute this appeal from a judgment of the trial court quieting title to certain land described in the pleadings in appellee Ernest Bhend and decreeing that appellants and all who claim under them are without any right whatsoever in and to said real property or any part thereof, and from the order denying appellants' motion for a new trial. The parties hereto will be hereinafter designated by their surnames.

Bhend brought an action against Otto and Fred Berger to quiet title to the

NE1/4 of the NW1/4 of Section 1, Township 1 South, Range 5 East of G. & S. R. B. & M., Maricopa County, Arizona.

The actual area in dispute, however, consists of approximately 4 3/4 acres of land indicated by the map incorporated herein and designated therein as the 'disputed area'. The Bergers plead thereto by filing an amended pleading designated as an answer, third party complaint, and counterclaim. Under permission of the court they brought in to said cause of action as third party defendants John Wiehl and Grace Wiehl, husband and wife, and counterclaimed against the plaintiff Bhend asking, among other things, for a reformation of the deed from the Wiehls to the Bergers.

The 4 3/4 acres above referred to lie along the west side of an irrigation ditch through which water is taken from the Salt River Valley Water Users' canal which runs along the north side of the NW1/4 of section 1. This quarter section is irrigated from east to west and has a slope of about 36 inches across each 40 acres. The ditch has been in existence for 50 years or more. It takes the water from the Water Users' canal approximately 180 feet east of the 'forty' boundary line and runs in a slightly southwesterly direction so that when it reaches the south end of said tract it is only approximatly 126.8 feet east of the southwest corner of the NE1/4 of the NW1/4.

The evidence discloses that there was a hill or high place covering approximatly three of four acres to the west of the canal which could not be farmed and it was the testimony of Mr. Wiehl when asked by the court:

'Q. How much would it cost to make a ditch on the west side of that fence?

'A. Where the trouble would come would be the lower forty. That lays high and they gave it that slope so that the water would reach the lower end.'

In other words the point at which the ditch received the water from the Water users' canal was chosen in order to get water on the SW1/4 of the NW1/4 of section 1 because it was high. This last described 40 acres is and has been owned by the mother of Otto and Fred Berger for many years and has been farmed by Otto Berger since 1920 and irrigated through this particular ditch.

In order that the reader of the opinion may more clearly understand the physical situation of the land here involved, we thought it advantageous to incorporate herein a map portraying the Government survey of the quarter section and the ditch and fence which all of the parties involved herein had pointed out to them and who understood it to be the boundaries of the land they purchased at the time the transaction was consummated.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The Bergers have presented eight assignments of error for our consideration, six of which are predicated upon the contention that the court erred in granting judgment for Bhend and against Bergers and in denying Bergers' motion for a new trial upon the ground that the judgment was neither supported by the evidence nor the law.

Assignment No. 6 is based upon the ground that the court found as a fact:

'(a) That Wiehl, Berger, Shepard and Bhend did not agree on a boundary line;

'(b) That the common grantor, Mr. Wiehl, intended to convey:

'(1) Exactly the Northwest Quarter of the Northwest Quarter (exactly 40 acres) to Berger;

'(2) Exactly the east half of the Northwest Quarter to Mr. Shepard (exactly 80 acres).'

We believe a disposition of these assignments will make it unnecessary to discuss assignments Nos. 7 and 8. We further are of the view that the remaining assignments can all be discussed together as in the final analysis they relate to the same thing.

The court made the following findings of fact:

'1. The Court finds that each of the parties mistakenly deemed the NorthSouth private ditch as the true line dividing the Northwest one-quarter of the Northwest one-quarter from the Northeast one-quarter of the Northwest one-quarter at the time of defendant Wiehl's deed to defendant Berger and to plaintiff's predecessor, Mr. Shepard, and that all parties continued in such mistake of fact until after March 20, 1951, when a survey was made at the request of the Federal Land Bank.

'2. The Court finds that as between any of the parties hereto, there was no expressly agreed boundary line, and finds that there was no mutual mistake in legal description contained in the deeds, but only a mistake of the extrinsic fact of actual location of the dividing line.

'3. The Court finds that it was the intention of the common grantor, Mr. Wiehl, to convey the Northwest one-quarter of the Northwest one-quarter to Mr. Berger and to convey the East one-half of the Northwest one-quarter to Mr. Shepard and that the description contained in the instruments accurately described such intent.'

The court stated in its opinion previous to the finding of facts that:

'It is the Court's further opinion that all of the parties intended to and did convey the exact land described in their deeds, and that under such a state of facts the Court cannot grant relief by reformation.'

The land was described in deeds of conveyance according to a government survey.

The questions raised by the Bergers require an examination of all the evidence material to the issues here involved which, of course, must be considered in the light most favorable to sustaining the judgment of the trial court. With the exception of the SW1/4 of the NW1/4 of section 1 which has been owned by the mother of the Bergers for many years, the records before us do not show the chain of title to the other legal subdivisions of said quarter section prior to 1945 when John Wiehl and wife owned the E1/2 and the NW1/4 of the NW1/4 of said quarter section and in January of that year conveyed the NW1/4 of the NW1/4 thereof to Otto and Fred Berger. The records do not disclose when Wiehl purchased said property nor when he conveyed the E1/2 thereof to the Shepards. To sustain a reformation of a deed of conveyance the material facts must be proved by evidence that is clear, convincing and satisfactory. Davis v. Kleindienst, 64 Ariz. 251, 169 P.2d 78.

We agree with the court's finding No. 1 above set forth haec verba and believe that the evidence amply justifies the same. But we do not agree with findings Nos. 2 and 3. There being no dispute in the evidence on these questions we are not bound thereby. Mr. Berger, after stating that he purchased the NW1/4 of the NW1/4 of section 1 from Mr. John Wiehl in January, 1945, was asked the following questions:

'Q. Now at the time you bought that land from John Wiehl did you and Fred go out on the land? A. Sure, we had been on the land, we knew all about it, we knew what we were buying.

'Q. Did he indicate what he was selling? A. Sure.

'Q. What did he tell you he was selling? A. Sold me the whole piece of ground on the west side of the ditch.

'Q. What did he say the east border was at that time, what did John indicate as being the eastern border of the land you bought? A. That fence just east of the ditch.

'Q. He said that that fence here was the border? A. That fence right there.

'Q. Was Mrs. Wiehl there at the time? A. She was there too.

'Q. Did you know at that time, Otto, that that piece you bought and that piece that Mr. Bhend now has were different in area? A. Sure.

'Q. Tell me whether or not at the time you bought it this land was uniformly level and susceptible and subject to cultivation? A. That was all subject to cultivation.

'Q. Was there any obstruction on the land? A. There was high spots but Wiehl removed part of it before he sold it to me, I moved some more of it but it still takes some more.

'Q. Mr. Berger, at the time you and Mr. Wiehl and Mrs. Wiehl and your brother went out on that land when you bought it in January, 1945, and just before that, did you buy that land by the acre or by the field that was there and by the boundaries that were designated? A. I bought it by the boundaries the way it is.

'Q. Now, Mr. Berger, what was the first notice you had that, so far as the papers were concerned and the deeds were concerned, this parcel (meaning the four and one-half acres) was on the other side of the section line or the quarter-section line? When did you first find out that this land you had been cultivating and this ditch were, according to the deeds, on Mr. Bhend's side? A. About 30 years ago.

'Q. Well, do you understand the question? When did you first know that somebody claimed you didn't own it? A. That is where Mr. Bhend came in before he bought the place, that is the first time.

'Q. When was that? A. I don't know the dates.

'Q. Was it about a year ago, a little over? A. About two years ago.

'Mr. Bhend is the first man who told you? A. He is the first man who told me that it didn't belong to me.

'Q. Until that time you had been farming this since 1945, taking care of both fences? A. Yes, and still farming it.

'The Court: Did I understand you to say awhile ago you knew you got more than 40 acres? A. Yes, that is why I bought that to get that ditch. I had to clean the ditch to farm up hill.'

Mr. Berger at no time...