England v. Ally Ong Hing

• Decision Date: 29 September 1969
• Docket Number: No. 9509--PR,9509--PR
• Citation: 105 Ariz. 65,459 P.2d 498
• Parties: Jewel H. ENGLAND, husband of Velma England, dealing with his sole and separate property; and Jewel H. England and Velma England, husband and wife, Appellants, v. ALLY ONG HING and Fon Jing Hing, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 498

459 P.2d 498

105 Ariz. 65

Jewel H. ENGLAND, husband of Velma England, dealing with his sole and separate property; and Jewel H. England and Velma England, husband and wife, Appellants, v. ALLY ONG HING and Fon Jing Hing, husband and wife, Appellees.

No. 9509--PR.

Supreme Court of Arizona, In Banc.

Sept. 29, 1969.

Rehearing Denied Oct. 28, 1969.

Elmer C. Coker, Phoenix, Tom Fulbright, Florence, for appellants.

Stockton & Hing, by Robert Ong Hing, Phoenix, for appellees.

LOCKWOOD, Vice Chief Justice.

This case comes before us on petition for review of the decisions of the Court of Appeals, 8 Ariz.App. 374, 446 P.2d 480 (1968); 8 Ariz.App. 558, 448 P.2d 128 (1968). Opinions of the Court of Appeals vacated.

The plaintiffs in this action are the owners of a cattle ranch in northeastern Pinal County called the Battle Axe Ranch. In 1962 defendants acquired title to two mining claims lying in proximity to these ranch lands. In the process of preparing these claims for housing developments, defendants made substantial changes in the terrain--changes which the plaintiffs contend destroyed certain of their water rights and generally rendered it difficult to carry on normal ranching operations in that area.

This ranch has been in operation since before 1910. It is comprised of eighty acres of patented land and twenty-five sections of grazing land leased from the federal and state governments. Running through this land from northeast to southwest is a canyon or wash known as Walnut Grove Canyon. This canyon origintes about two miles northeast of the headquarters (ranch buildings), runs past the headquarters, and ends about three miles southwest of the ranch at the Gila River. Approximately a mile north of the headquarters another wash known as Fig Spring Canyon enters Walnut Grove Canyon from the northwest.

The two patented lode claims acquired by the defendants, called Wild Cow No. 9 and Silver Creek, are each about twenty acres. The Wild Cow No. 9 claim lies approximately a mile north of the headquarters and includes Fig Spring Canyon (from its intersection with Walnut Grove Canyon north to where State Highway 177 crosses it) and a portion of Walnut Grove Canyon. The Silver Creek claim is closer to the headquarters, and Walnut Grove Canyon runs the length of it.

In the immediate vicinity of the Battle Axe Ranch there were three primary sources of water: (1) 'Fig Spring' which arose in Fig Spring Canyon and was located on defendants' Wild Cow No. 9 claim; (2) a 'retaining wall spring' which broke out near the point where the old Ray-Superior highway crossed Walnut Grove Canyon and was located on the southern part of the Silver Creek claim; and (3) 'Walnut Grove Spring' located near the headquarters which had been enclosed with a concrete box and provided water for domestic purposes. In 1947 plaintiff and his brother applied for and were granted water rights in Fig Spring and Walnut Grove Spring. The hearing in conection with these applications was attended by a Mr. E. H. Hughes, a predecessor in interest of defendants.

In February, 1963, defendants began to grade and develop the two mining claims for residential subdivision purposes. In the process of their construction defendants have placed a dike thirty feet in height across Fig Spring Canyon, have constructed another dike near the Silver Creek claim to divert the channel of Walnut Grove Canyon as it passes across this claim, and have generally altered both canyons so that their channels have been narrowed to approximately twenty feet in width. Plaintiffs complain that these operations have destroyed Fig Spring and rendered it impossible for them to utilize their customary route through the canyons in moving their cattle from the headquarters to grazing areas north of Fig Spring. In the court below plaintiffs sought to enjoin defendants from further construction activities and to compel them to restore Fig Spring and Walnut Grove Canyon to their natural state. The court sitting without a jury found in favor of the defendants. We append a diagram, not to scale, but showing relative locations of the properties and areas involved.

Plaintiffs argue initially that the court erred in rejecting plaintiffs' contentions that they had acquired title to these two mining claims by adverse possession. The occupancy or possession upon which plaintiffs rely is the grazing, feeding, and driving of their cattle over these mining claims since at least 1946. While there were fences around the exterior of the Battle Axe Ranch, which, in a sense enclosed the mining claims in question, the claims themselves were never fenced off from the surrounding land.

The issue of whether one may gain title by adverse possession by the mere grazing and ranging of cattle over unenclosed land is one of first impression in this jurisdiction. While a score of states have split almost equally on this question, Texas, from which our adverse possession statute was derived, has held that such conduct will not lead to title by adverse possession. Although we are not bound by the construction given a statute by the courts of the state from which it was adopted, we consider such construction to be persuasive. State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960). Also, when Arizona adopts a statute from another state, it will be presumed to have been adopted with the construction previously placed on it by the courts of that state. In Re Estate of McConnell, 101 Ariz. 538, 421 P.2d 895 (1966).

With these rules of statutory construction before us we turn to the landmark Texas decision of De Las Fuentes v. Macdonell, 85 Tex. 132, 20 S.W. 43 (1892). Holding that grazing cattle on unenclosed lands would not give defendant title to the land through adverse possession, the court stated:

'* * * we * * * indicate the rule in this court to be that the mere occupancy of land by grazing livestock upon it, without substantial inclosures or other permanent improvements, is not sufficient to support a plea of limitation under our statutes. Uninclosed land, in this state, has ever been treated as commons for grazing purposes; and hence the mere holding of livestock upon it has not been deemed such exclusive occupancy as to constitute adverse possession. There must be an 'actual occupation of such nature and notoriety as the owner may be presumed to know that there is a possession of the land' * * * 'otherwise, a man may be disseised without his knowledge, and the statute of limitations run against him, while he has no ground to believe that his seizure has been interrupted." 20 S.W. at 44.

Hinds v. Killough, 332 S.W.2d 101 (Tex.Civ.App.1959), rev'd. on other grounds 161 Tex.178, 338 S.W.2d 707 (1960); and Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (1954).

We find the reasoning of the Texas court persuasive. In our own state, as in Texas, it is not uncommon for cattle to range at will across the open ranch lands. An owner of a mining claim over which cattle grazed would certainly not be expected to surmise that the rancher who owned these cattle was asserting any claim of right to his land. Such use must be viewed as permissive and for that reason does not fall within A.R.S. §§ 12--521 and 12--526 which confer title by adverse possession. We hold therefore that the mere grazing of cattle, absent any other acts of dominion over the land, will not support a claim to land based on adverse possession. ¹

Plaintiffs next argue that the evidence shows that defendants, through their construction on the Wild Cow No. 9 claim caused the drying up of Fig Spring, and that the court therefore erred in failing to compel defendants to restore its flow. This contention is without merit. It is not the function of this Court to re-try factual issues. As we stated in Barnett v. Hitching Post Lodge, Inc., 101 Ariz. 488, 421 P.2d 507 (1966): 'We have consistently held that this court will be bound by the trial judge's decision on matters of fact in a non-jury case as long as there is competent evidence in the record to support the finding.' 101 Ariz. at 490, 421 P.2d at 509. The judge below specifically noted in his findings of fact that there was no evidence showing that, in the course of their construction activities, defendants stopped or obstructed any subterranean waters which were the source of Fig Spring. Rather he found that over the last fifty years the whole area generally had been drying up due to reduced rainfall. While the spring has dried up during the period defendants were doing their construction work, the judge found that there was no cause and effect relation between the two events.

The record bears out the trial court's conclusion. In 1954 when Highway 177 was constructed across Fig Spring Canyon, Fig Spring itself fell almost exactly in the center of the new road and was covered over with fill. Approximately sixty days later water broke out of the side of the fill and ran down the canyon. The evidence is in conflict as to the flow of Fig Spring subsequent to its being covered by the highway. However, even if the testimony that Fig Spring was not affected by the highway is accepted, the record is barren of evidence that defendant covered or otherwise destroyed the spring. In fact, the point at which the spring broke out of the highway fill is clearly visible. There is no evidence that defendant in any way caused the drying up of Fig Spring, either by covering it or by grading out its subterranean sources. Since the trial judge's conclusion in this matter is amply supported by the record, we are bound by his findings.

Conceding arguendo the finding that defendants were not responsible for the drying up of Fig Spring, plaintiffs nevertheless maintain that since they are the owners of the Certificate of Water Rights on the spring, the court should have decreed that they had the right to restore its flow and to keep it cleaned out. As an abstract proposition of law this may be...