Berryhill v. Moore

• Court: Arizona Court of Appeals
• Writing for the Court: CONTRERAS; FIDEL, P.J., and TOCI
• Citation: Berryhill v. Moore, 180 Ariz. 77, 881 P.2d 1182 (Ariz. App. 1994)
• Decision Date: 02 August 1994
• Docket Number: No. 1,CA-CV,1
• Parties: Robert BERRYHILL and Alberta Berryhill, husband and wife, Plaintiffs-Appellees, v. Robert R. MOORE, a single man, Jim R. Jackson and Patsey J. Jackson, husband and wife, Defendants-Appellants. 92-0433.

Page 1182

881 P.2d 1182

180 Ariz. 77

Robert BERRYHILL and Alberta Berryhill, husband and wife, Plaintiffs-Appellees, v. Robert R. MOORE, a single man, Jim R. Jackson and Patsey J. Jackson, husband and wife, Defendants-Appellants.

No. 1 CA-CV 92-0433.

Court of Appeals of Arizona Division 1, Department E.

Aug. 2, 1994.

As Corrected on Grant of Reconsideration

in Part Oct. 3, 1994.

[180 Ariz. 79] Musgrove & Drutz, P.C. by James B. Musgrove, Grant K. McGregor, Prescott, for plaintiffs-appellees.

[180 Ariz. 80] Favour, Moore, Wilhelmsen, Payette & Schuyler, P.A. by John M. Favour, Prescott, for defendant-appellant Moore.

Gerald E. Kriehn, Phoenix, for defendants-appellants Jacksons.

OPINION

CONTRERAS, Judge.

In this adverse possession action, the defendants Robert R. Moore ("Moore") and Jim R. and Patsey Jackson ("Jacksons") appeal from the trial court's judgment in favor of plaintiffs Robert and Alberta Berryhill ("Berryhill" or "Berryhills"). Following a bench trial, the trial court entered judgment which quieted title in the Berryhills as to the entire disputed property, and extinguished the Jacksons' liens on the disputed strip of property. It also awarded the Berryhills their attorney's fees.

In their appeal, Moore and the Jacksons contend that the Berryhills failed to prove that all of the elements necessary for a claim of adverse possession had been satisfied for the statutory period of time. Additionally, the Jacksons contend that even if the Berryhills proved adverse possession against the owner's title, the Jacksons' lien rights cannot be barred. We affirm the trial court's judgment for the Berryhills, except as it pertains to that portion of the disputed real property which became part of the riverbed, and we remand to the trial court to determine the correct legal description. We reverse the trial court's judgment extinguishing the Jacksons' lien rights because, as mortgagees, the Jacksons had no right to immediate possession and accordingly, the statutory period for adverse possession did not begin to run as to them.

FACTS

The two adjoining 2 1/2 acre parcels of land in dispute were formerly part of a five-acre tract of land near Black Canyon City. Susan Hittson and Cynthia Myers acquired this property in 1973. The five-acre parcel was fenced on all four sides. The Agua Fria River bordered the western edge of the property and Ta-Do-Hoya Trail lay along the eastern boundary. Squaw Valley Road bordered the land to the south. Hittson and Myers decided to divide the tract of land into two 2 1/2 acre parcels and sell them. Sam and Myra Fleming, realtors who lived near the property, served as their real estate agents. In April of 1976, the Jacksons, who were friends of the Flemings, purchased the west half of the five-acre tract.

Sam Fleming showed Jim Jackson what he understood to be the boundaries of the west parcel. Based on this information, Jackson constructed a north-south fence on what he believed to be his eastern boundary in order to separate his parcel from the one to the east. In reality, Fleming gave Jackson incorrect information about the boundary, and Jackson consequently constructed the fence approximately 60 feet west of his eastern boundary. As a result of this error, Jackson fenced out a strip of his own property measuring approximately 60 feet wide and 330 feet long. The Jacksons were never aware of this error the entire time that they owned the property. After fencing the property, which never contained any improvements, the Jacksons made no renovations to it and, in fact, rarely even visited the property.

Fleming had been grazing cattle on the entire five-acre parcel with Hittson and Myers' permission when Jackson first looked at the property. After Jackson purchased the west parcel, he gave Fleming permission to continue grazing on the Jacksons' side of the fence, and Jackson installed a gate in the newly-constructed fence so that the cattle could be moved between the two parcels.

In December of 1977, Malcom McCarter and his wife purchased the east parcel. Mr. McCarter walked the property with Myra Fleming, and she represented the fences surrounding the property, including the fence built by Jackson, as being the boundaries of the east parcel. Mr. McCarter believed he was purchasing all of the property lying within the boundary fences.

At the time of the McCarters' purchase, the east parcel contained a house, a barn, a sprinkler system, a well and pressure tank, some interior fencing separating the residential property on the east side from the pasture on the west side, and a livestock watering trough. None of these improvements was located on the disputed strip of property, but water from the sprinklers spread to that area.

The McCarters purchased the property with the intention of using it as a retirement home in the future. Meanwhile, they had little contact with the property other than to stay overnight on it when they parked their motor home there, approximately once a month. The McCarters made arrangements with the Flemings to take care of the property for them by maintaining the sprinklers, watering the property, and keeping the weeds trimmed. The McCarters allowed the Flemings to pasture horses on the whole west side of the property as a means of keeping down the weeds.

In December of 1978, the Agua Fria River flooded, and the river cut a new channel across the Jacksons' parcel in a southwesterly direction, washing away a good portion of their land. The land in the path of the river and all fences upon it fell into the river, leaving a ten foot embankment above the river bed at the edge of the new cut. The river also cut away some of the land on McCarters' side of the fence, specifically that in the extreme northwest corner of the property, which was part of the land situated within the disputed strip. The fences in this corner of the property fell into the river. Except for this one area, though, the fences around the McCarter parcel remained standing and secure. ¹

After the flood did its damage, Mr. McCarter and his wife lost interest in keeping their parcel for their retirement. They eventually sold it to the Berryhills in April of 1981. During the period of time between the flood and the sale of the property, the McCarters never restored the portion of the fence that had washed away. For a good part of that time, they could not have replaced the fence because they had to wait for the appropriate government agency to build back the corner section of the land which the flooding river had cut away.

It was also during this period of time that the Flemings became McCarters' tenants. The Flemings' house had washed away during the flood. Pursuant to an oral agreement between them, the McCarters let the Flemings stay in the McCarter house located on the property, and the Flemings paid the McCarters the $100.00 per month assistance money that the state gave them due to their flood loss. The Flemings agreed that they would continue to look after the whole parcel of property for the McCarters. The McCarters no longer made their monthly trips to the property out of respect for the Flemings' privacy while they lived on the property.

The Flemings, and later their daughter, remained on the property until a couple of months before the McCarters sold it. During this time, the Flemings brought some livestock onto the property and maintained the cattle openly and visibly on the disputed portion of the property. The Flemings kept the animals they had on the property tethered so that the animals would not wander through to the unfenced portion of the property. Although Mr. McCarter knew that the Flemings had moved their horses off the property the day of the flood, he never knew that they returned livestock to the property.

When McCarters sold the property to the Berryhills, the Flemings once again were the realtors who showed the property and confirmed that the long section of fence which remained standing on the west side of the property marked the proper boundary between the two parcels. The Berryhills, like the McCarters before them, purchased the property with the mistaken belief that they were buying everything within the perimeter fences.

Within a month after purchasing the east parcel, the Berryhills' son moved onto the property. He constructed a temporary fence in the northwest corner so that the property was completely enclosed once again. By that time, the land apparently had been restored by the appropriate government agency so that it had become possible to fence it. The following year, the Berryhills tore down the old fence dividing the parcels, replaced it with a new one two feet to the east and planted trees along the old fence line. A neighboring landowner verified that the new fence appeared to be approximately where the old one had been.

In April of 1985, the Jacksons sold the west parcel to Robert Moore, taking back a promissory note secured by a deed of trust which they recorded against the property. By that time, much of the land on the west parcel which had been lost in the flood had been restored. Moore took possession of the parcel and began making use of it immediately. For the first few years, Moore accepted the Berryhills' word that the fence and the trees between the two parcels marked the proper boundary. Indeed, Moore had made this assumption himself at the time he bought the property. In May of 1988, though, Moore had a survey done which showed that the true boundary line between the two parcels lay approximately 60 feet to the east inside the property claimed by the Berryhills. The Berryhills commissioned their own survey which confirmed the results of Moore's survey.

The Berryhills filed a quiet title action in March of 1989 (approximately eight years after purchasing the east parcel) to establish their ownership by adverse possession of the entire strip of land to which Moore held title and upon which the Jacksons, who formerly...