Inch v. McPherson

• Decision Date: 31 December 1992
• Docket Number: CA-CV,No. 2,2
• Parties: George R. INCH and Joan Inch, husband and wife, Plaintiffs/Appellees, v. Loren E. McPHERSON and Katie McPherson, husband and wife, Defendants/Appellants. 91-0217.
• Court: Arizona Court of Appeals

Page 755

859 P.2d 755

176 Ariz. 132

George R. INCH and Joan Inch, husband and wife, Plaintiffs/Appellees, v. Loren E. McPHERSON and Katie McPherson, husband and wife, Defendants/Appellants.

No. 2 CA-CV 91-0217.

Court of Appeals of Arizona Division 2, Department B.

Dec. 31, 1992.

As Corrected Feb. 10, 1993.

Reconsideration Denied Feb. 11, 1993.

Review Denied Oct. 5, 1993.

[176 Ariz. 133] Ettinger & Bevans, P.C. by Jack A. Ettinger, Tucson, for plaintiffs/appellees.

Kimble, Gothreau & Nelson, P.C. by David F. Toone, Tucson, for defendants/appellants.

OPINION

HATHAWAY, Judge.

This is an appeal from the trial court's ruling on appellants Loren and Catherine McPhersons' (McPhersons) counter-claim to quiet title for a strip of property three feet wide and sixty-two feet long on the boundary between the McPhersons' and appellees George and Joan Inchs' (Inchs), residences. We affirm the judgment awarding a prescriptive easement to Inchs and vacate the order which would have allowed Inches to build a block wall on the easement.

FACTS AND PROCEDURAL HISTORY

In 1954, Mrs. McPherson's parents, Victor and Ina Cone (Cones), purchased the house the McPhersons live in now. At that time, no one lived where the Inchs presently reside. The Cones planted a hedge about 45 or 50 feet long approximately three feet inside the west side of their property which extended from the wall dividing the front and back yards toward the curb. Inchs moved into their house in 1963 and believed their property extended to the center of the hedge roots. Mr. Cone trimmed the hedge until he died, and Mr. McPherson trimmed it since 1976, after he moved in. Inchs enclosed their garage for additional living space, laid down gravel for a driveway between their house and the hedge, and habitually parked their cars on their side of the hedge before it was taken down. In 1984, McPhersons determined the true extent of their platted property by survey. In 1985, there was a dispute about the property line on another part of the parties' lands, a claim was filed, and the claim was settled without trial. In 1987, McPhersons "desertized" their yard, eliminated the hedge, and the dispute about parking arose.

In 1989, while Inchs were out of town, McPhersons installed a chain-link fence on their side of the platted boundary, but within the area Inchs had used for parking. Inchs filed an action for trespass and slander against McPhersons. McPhersons filed a counter-claim to quiet title. In October 1990, a jury verdict was rendered in favor of McPhersons on the slander claim. The parties stipulated the court could decide the trespass claim. In March 1991, the court awarded the Inchs "an easement, by right of adverse possession, of the westerly three feet (3') of the existing platted property ..." In June 1991, the court ordered that Inchs were "allowed to build a block wall provided it does not interfere with the waterline ... because of the potential for flooding due to the disparate levels of the two properties and interference of each of the parties involved with the easement." In July 1991, the court entered its final judgment on slander in favor of the McPhersons and found no damages awardable for trespass. A timely notice of appeal was filed.

ISSUES ON APPEAL

McPhersons contend on appeal that: (1) there was insufficient proof to grant a prescriptive easement; (2) there was insufficient proof to establish the easement boundary line; (3) the trial court erred by allowing Inchs to build a block wall on the easement; and, (4) the prescriptive easement unconstitutionally deprived McPhersons of their property.

I. EVIDENCE SUPPORTING PRESCRIPTIVE EASEMENT

McPhersons argue that Inchs did not offer substantial evidence at trial which could have allowed the court to find that the elements of adverse possession for a prescriptive easement right were established. The party claiming the right to use another's land carries the burden of proof. LaRue v. Kosich, 66 Ariz. 299, 187 P.2d 642 (1947).

The proof necessary to establish a prescriptive easement to use land is not the same as that to establish a claim of title by adverse possession. Etz v. Mamerow, 72 Ariz. 228, 232, 233 P.2d 442 (1951). "[I]t is only the use to which the premises are put which must be shown to be adverse, open and notorious. To the extent that the use is established, it, of course, is hostile to the title of the servient estate." Id. at 233, 233 P.2d 442. Therefore, although the plaintiffs in this case must prove all the elements essential to title by prescription, their burden of proof must be measured in terms of the right to use they [sic] claim, i.e. [sic] a very limited periodic use.

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Arizona case law does not provide a clear delineation as to the requirements of each element of adverse possession ... (footnote omitted)

United States on Behalf of Zuni Tribe of New Mexico v. Platt, 730 F.Supp. 318, 321 (D.Ariz.1990). To prove adverse possession for an easement Inchs had to show by clear and convincing evidence that its use was "actual, open and notorious, hostile, under a claim of right, continuous for the statutory period [here, 10 years], and exclusive." Rorebeck v. Criste, 1 Ariz.App. 1, 4, 398 P.2d 678, 681 (1965).

The standard of review on this issue follows:

Since the weight to be given to evidence is peculiarly within the province of the trial court, it is the trial court and not this court that draws the distinction between evidence which is clear and convincing and evidence which merely preponderates. Webber v. Smith, 129 Ariz. 495, 498, 632 P.2d 998, 1001 (App.1981). This court must review the evidence in a manner most favorable to sustaining the judgment and if there is evidence to support the judgment, it will not be disturbed.

Yano v. Yano, 144 Ariz. 382, 384, 697 P.2d 1132, 1134 (App.1985). "This court will not weigh evidence to determine its preponderance on a disputed question of fact; our only concern is whether facts have been established which might reasonably support the trial court's judgment. Rightmire v. Sweat, 83 Ariz. 2, 5, 315 P.2d 659, 662 (1957)." Whittemore v. Amator, 148 Ariz. 173, 175, 713 P.2d 1231, 1233 (1986).

Cones and McPhersons maintained the hedge between their property and where Inchs now live for 33 years, from 1954 to 1987. There was testimony from Mr. Royce Connor that Inchs laid down gravel for a driveway between the east side of their house and the McPhersons hedge, and regularly parked their car on their side of the hedge since 1963 until McPhersons removed it. From this evidence, the trial court could have found that use of the three-foot strip of land was actual and visible, open and notorious, and continuous for more than twice the required statutory period.

McPhersons contend that there was no "conspicuous use" of the land, and no evidence that Inchs, or their cars or passengers, actually used the disputed land to gain a prescriptive easement right. We believe the trial court could have concluded the Inchs used the land by laying gravel and parking on it. The court could have concluded that the gravel area used by Inchs as a driveway gave notice to the whole world that Inchs had taken that area of land for their own use. The use continued conspicuously and continuously, not intermittently.

In Arizona, a person who makes use of land mistakenly believing it to be his own meets the hostility element to procure a prescriptive easement. Higginbotham v. Kuehn, 102 Ariz. 37, 38, 424 P.2d 165, 166 (1967); Trevillian v. Rais, 40 Ariz. 42, 43, 9 P.2d 402, 403 (1932). In Higginbotham, quoting from Trevillian, our supreme court stated:

'Where a person, acting under a mistake as to the true boundary line between his land and that of another, takes possession of land of another believing it to be his own, up to a mistaken line, claims [a prescriptive right] to it and so holds, the holding is adverse and, if continued for the requisite period, will give [a prescriptive easement] by adverse possession. And the fact that on taking possession he had no intention of taking what did not belong to him ... does not affect the operation of the rule.

* * * * * *

In all cases the intention and not the mistake is the test by which the character of the possession is determined, it being prima facie sufficient that actual visible, and exclusive possession ... was based on mistake.'

102 Ariz. at 39, 424 P.2d at 167.

Inchs testified that when they bought their property, they believed the land extended to the middle of the hedge roots and acted accordingly, laying out gravel and parking their cars on the side of their house. After a prima facie case of prescription is established, a legal presumption exists that there is a claim of right and not permissive use. Gusheroski v. Lewis, 64 Ariz. 192, 198, 167 P.2d 390, 394 (1946). There was sufficient evidence to support the trial court's conclusion that the use was hostile and to bolster the...