Geronimo Hotel, Inc. v. City of Tucson

• Decision Date: 05 December 1978
• Docket Number: No. 2,CA-CIV,2
• Citation: 121 Ariz. 446,591 P.2d 72
• Parties: GERONIMO HOTEL, INC., an Arizona Corporation, Plaintiff/Appellee, v. The CITY OF TUCSON, a municipal corporation, Defendant/Appellant. 2952.
• Court: Arizona Court of Appeals

Page 72

591 P.2d 72

121 Ariz. 446

GERONIMO HOTEL, INC., an Arizona Corporation, Plaintiff/Appellee, v. The CITY OF TUCSON, a municipal corporation, Defendant/Appellant.

No. 2 CA-CIV 2952.

Court of Appeals of Arizona, Division 2.

Dec. 5, 1978.

Rehearing Denied Jan. 10, 1979.

Review Denied Feb. 6, 1979.

Stubbs & Townsdin, P. C. by Charles L. Townsdin, Jr., Tucson, for plaintiff/appellee.

Frederick S. Dean, City Atty. by William E. Hildebrandt, Asst. City Atty., Tucson, for defendant/appellant.

OPINION

RICHMOND, Chief Judge.

The City of Tucson appeals from a judgment quieting title in the plaintiff corporation to a strip of land 10 feet wide and 75 feet long that was paved by the city in 1974 when it widened and improved the public highway known as Swan Road.

Other defendants were Pima County and the plaintiff's predecessors in interest in the adjoining lot. The plaintiff was awarded judgment as against each of them, either by default or because they claimed no interest in the land. Awaiting the determination of this appeal is a pending count for damages in inverse eminent domain against the city only, to compensate for the taking of the strip.

The plaintiff's claim to quiet title is based solely on adverse possession. Only the city has appealed from the judgment. Inasmuch as the city never acquired title to the strip, we affirm.

In 1949, the Pima County Board of Supervisors purported to acquire the strip pursuant to A.C.A.1939 § 59-601, the road establishment statute. At that time the owners of the lot including the strip were Ralph J. Christensen and Pearl L. Christensen, husband and wife. Title to the lot was transferred several times thereafter, the last time to plaintiff in 1959. Each conveyance was by deed in which there was an express exception of "that portion . . . lying within widened Swan Road as shown by (the road map recorded pursuant to the action of the board of supervisors)." By annexation of the area in 1955, the city succeeded to whatever interest the county had acquired.

The provisions of § 59-601 have been the subject of a line of cases beginning with McCune v. City of Phoenix, 83 Ariz. 98, 317 P.2d 537 (1957), in which the supreme court held unconstitutional so much of the statute as permitted the fixing of compensation by the board of supervisors for land taken or damaged, but upheld as separable from the offensive portions those provisions for the establishment, alteration and abandonment of roads. The holding was confirmed in Pima County v. Cappony, 83 Ariz. 348, 321 P.2d 1015 (1958).

In City of Tucson v. Melnykovich, 10 Ariz.App. 145, 457 P.2d 307 (1969), it was argued that the "establishment" permitted by McCune entails the simultaneous passage of title, but the case was decided on another point. Subsequently, however, in City of Tucson v. Morgan, 13 Ariz.App. 193, 475 P.2d 285 (1970), this court held that such an interpretation of McCune and Cappony clearly violated Article 2, Section 17 of the Arizona Constitution, which provides in part:

* * * No private property shall be taken or damaged for public or private use without just compensation having first been made, or paid into court for the owner * * *.

The city argues that Morgan was a departure from McCune, and should not be applied retroactively. From this, it contends plaintiff's adverse possession as to its predecessors could not have extended for the 10-year statutory period of A.R.S. § 12-526 ¹ because their cause of action for recovery of the strip was a 1970 creation of Morgan. We do not agree.

For one thing, the resolution of the board of supervisors in McCune did not include an order condemning any property or awarding compensation. The court reasoned that the board may have expected to resort to a condemnation action to acquire the property in the proper exercise of the power of eminent domain. In contrast, the resolution here expressly purported to "condemn and appropriate to the public use" the land in question, and provided that no award of compensation or for damages be made because "the benefits to be derived . . . exceed any damages." As such, it failed to pass constitutional muster under the 1957 decision in McCune as well as Morgan.

Also, McCune did not deal with a...