Kay v. Biggs

• Decision Date: 05 October 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 475 P.2d 1,13 Ariz.App. 172
• Parties: Joseph W. KAY and Georgia A. Kay, his wife, and Transamerica Title Insurance Company, an Arizona corporation, Rose B. Nash, a widow, Frank Ziede and Ann Ziede, his wife, Tom Ajamie and Evelyn Ajamie, his wife, Edgar T. Ajamie, a single man, Albert Felix, a single man, and Amil J. Ajamie, a single man, Appellants, v. Fred S. BIGGS and Zula Biggs, his wife, Appellees. 1106.
• Court: Arizona Court of Appeals

Page 1

475 P.2d 1

13 Ariz.App. 172

Joseph W. KAY and Georgia A. Kay, his wife, and Transamerica Title Insurance Company, an Arizona corporation, Rose B. Nash, a widow, Frank Ziede and Ann Ziede, his wife, Tom Ajamie and Evelyn Ajamie, his wife, Edgar T. Ajamie, a single man, Albert Felix, a single man, and Amil J. Ajamie, a single man, Appellants, v. Fred S. BIGGS and Zula Biggs, his wife, Appellees.

No. 1 CA-CIV 1106.

Court of Appeals of Arizona, Division 1, Department B.

Oct. 5, 1970.

Denzil G. Tyler, Winslow, for appellants.

Axline & Johnson, Holbrook, and Johnson, Shelley, Roberts & Riggs, by J. LaMar Shelley, Mesa, for appellees.

EUBANK, Presiding Judge.

This appeal is brought by the defendants Joseph W. and Georgia A. Kay, husband and wife, and the Transamerica Title Insurance Company, together with the third-party defendants, Rose B. Nash, et al., as appellants and hereafter referred to as defendants and third-party defendants, respectively, from a judgment quieting title by adverse possession in the plaintiffs, Fred S. and Zula Biggs, husband and wife, appellees herein and hereafter referred to as plaintiffs, to a disputed parcel of real property located approximately two miles south of Lakeside in Navajo County, Arizona, described as follows:

Beginning at a point 955.0 feet West (Bearing given by G.L.O. Notes) of the Northeast corner of the Northwest Quarter of Section 6, Township 8 North, Range 23 East of the Gila and Salt River Base and Meridian, and on the North line of said Section 6; running thence West 56.4 feet; thence South 0 20 20 East 40 rods (66.0 feet); thence East 51.0 feet; thence North O 09 50 East 40.0 rods (660.0 feet) to the point of beginning.

The disputed parcel of land adjoins plaintiffs' deeded land on its western boundary line and is approximately rectangular in shape, being approximately 56 feet wide on the north and south sides and 660 feet long on the east and west sides.

The plaintiffs filed their complaint against the defendants to quiet title (A.R.S. § 12--1101, et seq.) alleging that they were the owners in fee simple estate of the disputed parcel of land by virtue of their adverse possession of it for more than ten consecutive years. They further alleged damages for the defendants' wrongful removal of their boundary line fence and, in addition, asked that attorney's fees be awarded them for defendants' refusal to execute a quit-claim deed when tendered as authorized by A.R.S. § 12--1103.

Defendants answered denying the allegations of the complaint, affirmatively claiming ownership of the disputed parcel of land and admitting that they refused to execute the proffered quit-claim deed. In addition to their answer, the defendants filed a third-party complaint against Rose B. Nash, a widow, and the other parties listed after her name in the caption, alleging that the defendants had acquired the disputed parcel from the third-party defendants by warranty deed and that in the event the plaintiffs were successful in the quiet title action the third-party defendants would be liable to them for a breach of warranty of title. Following the denial of reciprocal motions for summary judgment the matter was tried to the court sitting without a jury.

The trial court entered judgment quieting title in the plaintiffs and awarding them attorney's fees and costs. In a separate judgment, the trial court awarded the defendants judgment against the third-party defendants for the loss of the disputed parcel of land and the attorney's fees and costs awarded plaintiffs in the primary judgment. Neither side requested the Court to make Rule 52, Rules of Civil Procedure, 16 A.R.S., findings of fact and conclusions of law, and none were made. Defendants and third-party defendants appeal from both judgments.

Defendants and third-party defendants raise seven questions for our consideration on appeal. The first five deal with sufficiency of the evidence to sustain the judgment questions. Due to the fact that the trial court, sitting without a jury, made no findings of fact or conclusions of law and that the parties requested none, all inferences supported by the evidence must be drawn in favor of the plaintiffs and the two judgments. Rosen v. Hadden, 81 Ariz. 194, 303 P.2d 267 (1956); Gardner v. Royal Development Co., 11 Ariz.App. 447, 465 P.2d 386 (1970). The last two questions deal with the propriety of the trial court's determination of attorney's fees and the allegation of an error in law or of an abuse of discretion in setting the fee.

Taking the first five questions relating to the sufficiency of the evidence and construing all inferences in favor of the judgment, we find that in 1937 the real property owned by the plaintiffs and defendants, including the disputed parcel, were combined into a single tract owned by Mr. Hans Hanson. In that year the plaintiffs negotiated with Mr. Hanson for the purchase of a 2-acre parcel of land. In order to establish the west boundary line of the 2-acre parcel, Mr. Hanson pointed out a 'witness tree' and measurements were made from it to the boundary line by means of a 'surveyor's chain' and transit. The boundary line thus located was in error and included the disputed parcel of land within plaintiffs' 2-acre tract. At that time Mr. Hanson, the plaintiff-husband, the plaintiff-husband's brother and other witnesses present were satisfied that the true boundary line had been located. Thereafter a fence was erected confirming the boundary line as located and inclosing the disputed parcel within the plaintiffs' boundary fence. After some delay the plaintiffs obtained a deed to the 2-acre parcel in 1940, which did not include the disputed parcel of land within the description of land deeded to plaintiffs.

The plaintiffs used the property for a summer home, physically occupying it for only two to three weeks each year. On the disputed parcel of land they erected and maintained the boundary line fence, cultivated the land several times, planted apple trees which they pruned and harvested over the years, built and moved an outhouse several times, piled and stored wood, removed stumps, and in general fully occupied and used the property two to three weeks each year. Immediately adjacent to the disputed parcel, plaintiffs built a cabin in 1946 and resided there when visiting the property. Plaintiffs' possession and control of the disputed parcel continued uninterrupted and unquestioned for almost thirty years until some time after May 27, 1965, when the defendants purchased the real property west of plaintiffs from the third-party defendants and had the property surveyed. The survey showed that the disputed parcel was occupied by the plaintiffs and the defendants requested them to vacate the disputed area. When plaintiffs refused to do so, defendant Joseph Kay physically removed the old established boundary line fence himself in the winter of 1966 without plaintiffs' consent or knowledge. Mr. Kay then constructed a new boundary line fence 50 plus feet east of the old fence in order to include the disputed parcel, including a row of plaintiffs' apple trees, within his own fence lines. There is no dispute that the real estate taxes on the disputed parcel were paid by the defendants and their predecessors in title.

Defendants and third-party defendants contend, in effect, that the foregoing fails to establish adverse possession as a matter of law for the reason that two or three weeks physical occupancy each year does not establish the element of peaceful possession or continuous possession required to perfect title by adverse possession. They cite no case law supporting this position and we disagree with their contention.

' Adverse Possession' is defined by A.R.S. § 12--521, subsec. A(1) as meaning '* * * 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.', while 'peaceable possession' is defined at A.R.S. § 12--521, subsec. A(2), as, '* * * possession which is continuous, and not interrupted by an adverse action to recover the estate.' These two definitions are applicable to the 10-year statute of limitation, A.R.S. § 12--526, subsec. A which reads as follows:

'A person who has a cause of action for recovery of any lands, tenements or hereditaments from a person having Peaceable and Adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues, and not afterward.' (emphasis added)

Neither A.R.S. § 12--521, subsec. A(1) nor § 12--521, subsec. A(2) sets any specific time requirement for physical bodily presence which must be complied with in order for a claimant to claim the continuous possession required to perfect title by...