Higginbotham v. Kuehn
| Citation | 102 Ariz. 37,424 P.2d 165 |
| Decision Date | 01 March 1967 |
| Docket Number | No. 8344,8344 |
| Parties | Daniel H. HIGGINBOTHAM, aka D. H. Higginbotham, and Naomi W. Higginbotham, his wife, Appellants, v. Ethel KUEHN, Appellee. |
| Court | Supreme Court of Arizona |
Christy, Kleinman, Peterson, Hoyt & Fuller, Phoenix, for appellants.
Greig Scott and Jack C. Cavness, Phoenix, for appellee.
This quiet title action was instituted by Ethel Kuehn, a widow, against Daniel H. and Naomi W. Higginbotham, his wife, seeking title by adverse possession to a one and one-half foot strip of property. The trial court entered judgment in favor of Kuehn and the Higginbothams appealed.
Since the only serious questions concern the sufficiency of the evidence, the facts will be stated and taken in a light most favorable to support the judgment. Chadwick v. Winn, 101 Ariz. 533, 421 P.2d 890.
Prior to 1943, the property of both appellants and appellee was owned by Tom Caldwell who, in that year, by a metes and bounds description sold the parcel now owned by appellants to Andy Womack. Womack then erected a wooden fence about one and one-half feet inside the east line of his property. In 1945, appellee purchased her property. It adjoined the Womack property on the east. At the time she purchased, she was informed by Caldwell that the wooden fence was the property line.
The same year appellee built a house on her property and, among other things, built a rail fence across the north (front) which tied into Womack's fence on the west side of appellee's property. Appellee also planted a privet hedge on the northwest fifty feet of her property set back from the fence approximately on the true line and this hedge grew and spread out across the disputed foot and one-half. Appellee also built a clothesline south of the privet hedge which overhung the true property line. Thereafter, appellee clipped the privet hedge and mowed the grass to the Womack fence south of the hedge line. Appellee later granted an easement for power poles to a public utility. The public utility seemingly took the fence line as the property line and placed the poles within the one and one-half foot disputed strip rather than on appellee's property.
In 1950, appellants acquired their title from Womack's successor and, within six months to a year, tore down the Womack fence and, after a short interval of time, erected a hogwire fence at approximately the same location. In 1961, the Higginbothams, in preparation for further construction on their property, attempted to utilize the one and one-half foot in dispute. This brought about the present law-suit.
A.R.S. § 12--521, subsec. A, 1 provides:
"Adverse possession' means an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.'
Appellants urge that appellee performed no act constituting actual and visible appropriation of the strip of land in question. The recited evidence plainly refutes this contention. The acts which may constitute possession are necessarily varied and, of course, depend upon the circumstances of the case. Spillsbury v. School District No. 19, 37 Ariz. 43, 288 P. 1027. From 1945 to the time of this dispute in 1961, for a period of sixteen years, appellee occupied and used the strip as part of her yard. Clearly, appellee's appropriation was actual and visible.
Her property line was identified to her at the time of purchase as being the Womack fence and she testified that she intended to claim to the fence as her land. It was obviously adverse. A claim of right is nothing more than the intention of the party in possession to appropriate and use the land as his own to the exclusion of others irrespective of any semblance or shadow of actual title or right. Gunther & Shirley Co. v. Presbytery of Los Angeles 85 Ariz. 56, 331 P.2d 257. That appellee had or could have had knowledge of the exact property line from the description by metes and bounds in her deed is immaterial. It is the actual and visible appropriation commenced and continued under a claim of right which...
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Lewis v. Pleasant Country, Ltd.
...addressed adverse possession by mistake all involved a claimant who had no right to possess the land, see Higginbotham v. Kuehn, 102 Ariz. 37, 38-39, 424 P.2d 165, 166-67 (1967) (mistaken possession of adjoining property up to visible boundary line); Gunther & Shirley Co. v. Presbytery, 85 ......
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...or whether the casual entry on the land for this purpose was known by, or brought to the attention of, Overson. In Higginbotham v. Kuehn, 102 Ariz. 37, 424 P.2d 165 (1967), an adverse possession case, the owner tore down a fence which stood about one and one-half feet inside his true proper......
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