Gibbons v. Globe Development, Nevada, Inc., 12478--PR
| Decision Date | 10 February 1976 |
| Docket Number | No. 12478--PR,12478--PR |
| Citation | 113 Ariz. 324,553 P.2d 1198 |
| Parties | Gregg L. GIBBONS, Jr., and Gregg L. Gibbons, Sr., Appellants, v. GLOBE DEVELOPMENT, NEVADA, INC., a corporation, Appellee. . Review Granted |
| Court | Arizona Supreme Court |
George F. Senner, Jr., John W. Rood, Phoenix, for appellants.
Snell & Wilmer by Mark Wilmer, Phoenix, for appellee.
Appellee Globe Development, Nevada, Inc., a corporation, brought this declaratory judgment action seeking to obtain injunctive relief and to quiet title to water rights in Rain Tank Wash and its tributaries. From the order of the Superior Court of Coconino County granting appellee's motion for summary judgment and the judgment based thereon, appellants Gregg L. Gibbons, Jr. and Gregg L. Gibbons, Sr. appealed. The Court of Appeals, Division One, affirmed in a memorandum decision, 1 CA-CIV 2759, filed December 16, 1975. The memorandum decision of the Court of Appeals is vacated. The order of the trial court granting appellee's summary judgment is vacated and the judgment based thereon is reversed. The case is remanded for trial.
The rule of law that guides us in determining whether summary judgment is properly granted is to ascertain whether a valid factual issue exists from an examination of the record. Summary judgment must be denied if there is a factual dispute. Yavapai County v. Wilkinson, 111 Ariz. 530, 534 P.2d 735 (1975).
Appellants do not dispute and appellee apparently has established by proper documentation its chain of title to the water in Rain Tank Wash. Appellee's chain of title to the water rights dates back to the application of appropriation of William Babbitt recorded on January 23, 1914. Appellee has properly supported his motion for summary judgment. Once the movant has properly met its burden on summary judgment the party resisting the motion cannot stand upon unverified pleadings. Union Bank v. Pfeffer, 18 Ariz.App. 386, 502 P.2d 535 (1972); Rule 56(e), Arizona Rules of Civil Procedure.
Appellants alleged that they have an interest in and claim rights to the water in Rain Tank Wash on three grounds.
Appellants' first theory is that they are entitled to water by reason of a prior appropriation. The only supporting documentation appellants offer is a copy of a notice of appropriation filed by Louis D. Boucher dated August 23, 1895.
Appellants have failed to submit any showing of a privity of estate or privity of contract between Boucher and appellants. The allegations by appellants amount to no more than conclusory statements and do not satisfy the requirements of Rule 56(e), Arizona Rules of Civil Procedure. Yavapai v. Wilkinson, supra.
The second theory is that there is new water in the Wash available for appropriation as a result of runoff surface water from the newly constructed runway at the Grand Canyon National Park Airport. The factual determination of whether there is new water available for appropriation was not only on appeal in a separate lawsuit, it was part of the record in the present case. This record indicates that a factual issue is before the...
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San Carlos Apache Tribe v. Superior Court ex rel. County of Maricopa
...Gibbons v. Globe Development, Nevada, Inc., expressly states that a "water right may be obtained by adverse possession." 113 Ariz. 324, 325, 553 P.2d 1198, 1199 (1976). Gibbons held that there was a triable issue of fact whether a water right by adverse possession had been established. Id. ......
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Chanay v. Chittenden
...depositions and interrogatories, to raise a material factual issue and preclude summary judgment. Gibbons v. Globe Development, Nevada, Inc., 113 Ariz. 324, 553 P.2d 1198 (1976). Appellee argues further, however, that even giving full effect to appellant's complaint and affidavits, there is......
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Portonova v. Wilkinson
...the adverse party must respond with proof of specific facts showing a genuine issue of fact for trial. Gibbons v. Globe Development, Nevada, Inc., 113 Ariz. 324, 553 P.2d 1198 (1976); Gomez v. Great American Insurance Co., 26 Ariz.App. 394, 548 P.2d 1206 (1976). The opposing party must show......
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San Carlos Apache Tribe v. Superior Court of Arizona
...Gibbons v. Globe Development, Nevada, Inc., expressly states that a "water right may be obtained by adverse possession." 113 Ariz. 324, 325, 553 P.2d 1198, 1199 (1976). Gibbons held that there was a triable issue of fact whether a water right by adverse possession had been established. Id. ......