Etz v. Mamerow
| Decision Date | 02 July 1951 |
| Docket Number | No. 5279,5279 |
| Citation | 233 P.2d 442,72 Ariz. 228 |
| Parties | ETZ et ux. v. MAMEROW. |
| Court | Arizona Supreme Court |
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix for appellants.
W. F. Dains, Curtis E. Weland, of Phoenix for appellee.
This is an appeal from the judgment of the trial court and from an order denying appellant's motion for a new trial.
The cause was tried to the court without a jury upon a complaint to quiet title which must be construed under the evidence presented by plaintiff-appellee as being intended to state a claim of title by adverse possession against defendants-appellants to a strip of land three feet wide lying north of the north boundary line of Lot 10, Norma Place in Phoenix. The parties will be hereinafter referred to as plaintiff and defendants as they appeared in the trial court.
The pleadings are a bit confusing, in that, they allege that plaintiff is the owner in fee simple of Lot 10, Norma Place, according to the map or plat thereof, etc., and that the north boundary line of Lot 10 is three feet north of what defendants now claim is the north boundary line thereof along which they constructed the fence in questions. Plaintiff alleges that up to September 25, 1948, she and her predecessors in interest had been in actual, open, exclusive and notorious possession of Lot 10 under a claim of right as against defendants (owners of Lot 12) and all the world during that period, exercising dominion over it and enjoying and using the same. (Incidentally the evidence shows plaintiff has owned and been in possession of Lot 10 since 1925 or 1926). She further alleges defendants claim some interest in this three-foot strip of land and that such claim is without right or foundation and they have no estate, right, title or interest therein.
In her first cause of action she asked that defendants and each of them be barred and forever estopped from having or claiming any right or title to said strip of land.
In her second cause of action she reincorporates the above allegations therein and further alleges that defendants, without her consent and over her protest, wrongfully and unlawfully entered and trespassed upon the three-foot strip of land on the north side of her premises and built a fence thereon which obstructs the ingress and egress of her tenants to her apartments located along the north boundary line of Lot 10. She asked damages therefor and for the removal of the fence and restoration of said land to her. Defendants denied all of the above allegations except that they claim title to the three-foot strip of land in question.
At the close of all of the evidence the court took the matter under advisement and thereafter entered judgment in favor of plaintiff and against defendants and each of them, finding that plaintiff is the owner of Lot 10, the north line of which is established by the survey of Lot 12 on September 2, 1948, by F. N. Holmquist, acting for defendants Etz. This survey established the boundary line between Lots 10 and 12 to be along the line upon which defendants constructed the fence here involved and which approximately coincides with the original survey as shown by the map or plat of Norma Place. The judgment further found defendants to be the owners of Lot 12. It then found that plaintiff and her predecessors in interest had used a part of Lot 12, Norma Place, three feet wide lying north of the entire boundary line of Lot 10 for a period of more than 20 years and concluded as a matter of law that plaintiff had acquired an easement for the use of said strip of land. The court thereupon entered its order and decree establishing an easement in favor of plaintiff for the use of the three-foot strip of land on Lot 12 of Norma Place lying north of the north boundary line of Lot 10 extending along the entire length of said lots.
On her second cause of action judgment was entered against defendants ordering and directing them to remove the fence now encroaching upon said easement and for her costs.
No request was made to the court by plaintiff to amend her pleadings to conform to the evidence and as hereinafter pointed out, there is nothing in the record to indicate that the case was tried on any other theory than that of attempting to acquire title to the strip of land in question by adverse possession.
Defendants have presented five assignments of error for our consideration, all of which are directly or indirectly based upon the ground that the judgment rendered by the court was not within the issues raised by the pleading and is foreign to the theory upon which the case was tried.
We agree with this contention. As above stated the pleadings, if literally construed, would indicate that plaintiff was merely seeking to establish the true boundary line between Lots 10 and 12, Norma Place, according to the map or plat thereof to be three feet north of the line along which the newly constructed fence was located and to prevent defendants from further trespassing upon Lot 10 as fixed by the map or plat of Norma Place. This interpretation of the pleadings, however, was refuted by counsel for plaintiff during the trial.
The court asked counsel for plaintiff the following question: 'Is there any dispute about what the true survey is, is there a dispute about what the true survey will show?'
After some discussion Mr. Daines said: (Mr. Jones made the survey for plaintiff).
Mr. Daines then said: '* * * The probabilities are the best survey that can be made will show the line not far from where Mr. Etz claims it is.'
By this statement to the court counsel made it clear that so far as the evidence...
To continue reading
Request your trial
-
Bunyard v. U.S., Dept. of Agriculture, CV02-0083-PCTJAT.
...to indicate that the use of the way was not merely permissive is required to establish a right by prescription." Etz et ux. v. Mamerow, 72 Ariz. 228, 233 P.2d 442, 445 (1951) (quoting 17 Am.Jur., Easements, Sec. 71, p. 980). Because the statement in Etz appears to be dicta, rather than a ho......
-
McDonald v. Bd. of Mississippi Levee Com'rs, Civ. A. No. GC 83-256-GD-O.
...with a claim of easement or profit a'prendre. Id. at 416. The court quoted the Arizona Supreme Court's reasoning in ETZ v. Mamerow, 72 Ariz. 228, 233 P.2d 442 (1951) as An allegation of exclusive possession is wholly inconsistent with the theory of establishing an easement. The right to pos......
-
Spaulding v. Pouliot, 2 CA-CV 2007-0108.
...859 P.2d at 757, and because a use that begins with permission cannot "ripen[]" into a prescriptive easement, see Etz v. Mamerow, 72 Ariz. 228, 232, 233 P.2d 442, 445 (1951), Redmond's and Pouliot's use of the road must therefore presumptively be permissive. On the facts before us, we must ......
-
Ammer v. Arizona Water Co.
...discussion by noting that an easement is a right that one person has to use the land of another for a specific purpose. Etz v. Mamerow, 72 Ariz. 228, 233 P.2d 442 (1951). Such a right may be created by prescription. Gusheroski v. Lewis, 64 Ariz. 192, 167 P.2d 390 (1946). Although prescripti......