Overson v. Cowley, 1
| Decision Date | 19 October 1982 |
| Docket Number | CA-CIV,No. 1,1 |
| Parties | Ross OVERSON, Third Party Plaintiff-Appellee, v. Graham COWLEY, Eva Cowley, Hugh Cowley and Helen Cowley, Third Party Defendants-Crossclaimants-Appellants. 5290. |
| Court | Arizona Court of Appeals |
This is an appeal from a summary judgment quieting title to forty acres of land near St. Johns, Arizona, in favor of appellee Overson and against appellants Cowley. The case originated with a complaint filed by Nickolaus and Barbara Greer, as lessees of appellants, seeking to enjoin Overson from trespassing on the land. Overson broadened the action by bringing in numerous "third-party defendants", 1 including appellants, seeking to quiet title to the forty acres and claiming adverse possession for more than ten years. In the ensuing litigation the Cowleys filed a counterclaim to quiet title in their names and thus became the primary litigants against Overson.
In early November, 1975, both parties filed motions for summary judgment which were initially denied. Eventually the court, on December 30, 1975, entered a minute order granting Overson's motion, thus recognizing his claim of adverse possession. The Cowleys filed a motion for rehearing or new trial on March 8, 1976, which was denied by minute entry on May 16, 1977. No signed order or judgment was entered in the case either with respect to the original motions for summary judgment or with respect to the Cowleys' motion for rehearing or new trial. The case apparently lay dormant for almost two years when on April 26, 1979, the Cowleys, through their new counsel, filed a renewed motion for rehearing or new trial. Simultaneously, they filed a separate motion for leave to file additional affidavits. On October 2, 1979, the court denied the renewed motion for rehearing or new trial, but made no ruling on the motion for leave to file additional affidavits. The parties have treated the omission as tantamount to a denial.
A final judgment quieting title to the land in Overson was entered February 29, 1980, which contained certification pursuant to 16 A.R.S., Rules of Civil Procedure, Rule 54(b). A signed order denying the motion for new trial was entered March 7, 1980. This court has jurisdiction pursuant to a timely notice of appeal and A.R.S. § 12-2101(B) and (F)(1).
Appellants present three basic contentions in seeking reversal of the judgment: (1) the summary judgment establishing Overson's adverse possession claim was improper because there were disputed issues of material fact to be tried; (2) the court should have granted the Cowleys' motion for a summary judgment; and (3) the court abused its discretion in denying the Cowleys' motion for leave to file additional affidavits to rebut Overson's motion for summary judgment. We shall deal with these issues in the order listed.
On motion for summary judgment, neither the trial court nor this court may weigh the evidence. Northern Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 573 P.2d 65 (1977). All facts shown by the record, and all reasonable inferences which may be drawn from the evidence, must be considered in a light most favorable to the party against whom judgment is sought. If there is the slightest doubt or uncertainty in respect to any issue of material fact, the request for summary judgment should be denied. Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 613 P.2d 283 (1980); Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979); Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963); Schmidt v. Mel Clayton Ford, 124 Ariz. 65, 601 P.2d 1349 (App.1979); Combs v. Lufkin, 123 Ariz. 210, 598 P.2d 1029 (App.1979). 2
Overson filed the first motion for summary judgment. The following is an overview of the factual record relied on by him at that time. Overson testified he owns the land contiguous to the west side of the forty acre tract and has kept cattle thereon for over forty years. He bought the forty acres from Bud (Graham) Cowley for $300.00 in the early 1940s, and fenced it on three sides, tearing down the existing fence on the west side of the tract which separated the two properties. He was promised a deed but did not get it. He testified he grazed cattle on his land, including the forty acre tract, under claim of ownership continuously every day for thirty years, averaging twenty head per year. The City of St. Johns commenced construction of a road along the west boundary of the property and he stopped them, negotiated with them and later gave permission, through his attorney, to construct the road. He also gave permission to the power company to put in electric lines, executing a written easement. He gave permission to the Cowleys to take some rock about twenty-five or thirty years ago. Other than that, he is not aware of the Cowleys taking anything else off the property. On October 10, 1961, he tendered a quit claim deed to each of the Cowleys pursuant to A.R.S. § 12-1103 3, demanding that they execute and return it. Along with the demand, he tendered the requisite five dollars and threatened to bring action to quiet title on failure to comply. The demand was formally refused by the Cowleys on October 27, 1961. 4 At no time during Overson's continuous use and occupancy of the property did the Cowleys make any effort to remove or dispossess him. He has exercised complete control over the property and "kept people off." During the spring of 1974 the Cowleys' lessee, Greer, started to re-fence the west side. Overson removed the single post Greer had put there, ordered him to stay off the property and keep his cows off, and put a "no trespassing" sign on the property. Greer complied with the demand.
A few days after Overson filed for summary judgment, the Cowleys filed a cross-motion, seeking the same relief, and both motions were considered simultaneously.
A resume of Graham Cowley's pertinent deposition testimony and original affidavit is as follows. The forty acres has never been "entirely fenced from adjoining properties." There was an old fence on the west side but it was in "bad condition." Overson, with Cowley's permission, fenced the north boundary in 1944. A fence has existed on the west and south sides ever since he can remember. The property has always been "open" on at least one of the four sides. There was a fence on the east, but it is not on the boundary line. At times, some of the fences were in bad condition. The Cowleys operated a gravel plant on the forty acre site until about 1952, when it burned down. After that they discontinued taking gravel, except for their personal use "whenever they needed it." They also "cut some stays there in the salt cedar" about 1969-1970. Cowley denied having sold the property to Overson, stating that he gave Overson permission to graze cattle there since the early 1940s and that Overson has had cattle on there "some of the time" ever since. He has not tried to dispossess Overson because "he wasn't hurting the property any." The Cowleys tried to use the property some of the time but couldn't keep the fences up. They gave the city an easement for a road, the irrigation company an easement for a pipeline, and the power company an easement for an electric line. A further affidavit by Graham Cowley, dated March 8, 1976, was attached to the original motion for new trial. No request was made to file it of record and apparently no issue is raised on appeal in reference to it. The affidavit refers to repairing fences, removal of gravel and salt cedar branches, and granting of easements during the period from 1965 to 1974.
The Cowleys contend that when all the stated facts and reasonable inferences to be drawn therefrom are considered, the record demonstrates several material factual issues which are genuinely disputed in respect to appellee's motion for summary judgment. Assuming all of the uncontested facts to be true, and resolving any conflict in favor of the Cowleys, we conclude that the summary judgment was properly entered. The facts will be discussed in greater detail, as necessary, in the course of our analysis of the Cowleys' contentions.
Before proceeding to the issues presented, however, it will be helpful to briefly review the basic principles relating to adverse possession. A person seeking to recover land from another having peaceable and adverse possession thereof, claiming title thereto and using and enjoying the same, must commence an action therefor within ten years after his cause of action accrues and he may not do so thereafter. A.R.S. § 12-526; Knapp v. Wise, 122 Ariz. 327, 594 P.2d 1023 (App.1979); Walter v. Northern Arizona Title Co., 6 Ariz.App. 506, 433 P.2d 998 (1967); Rorebeck v. Criste, 1 Ariz.App. 1, 398 P.2d 678 (1965).
Rorebeck, supra, sets forth the elements of an adverse possession claim, as follows:
Our statutes follow the generally held rule that in order for one to acquire title purely by adverse possession, such possession must be actual, open and notorious, hostile, under a claim of right, continuous for the statutory period (here 10 years), and exclusive. It is generally conceded that all of these elements must coincide before one may acquire title by adverse possession.
1 Ariz.App. at 3-4, 398 P.2d at 681. The claimant's possession must not only be such as to exclude the owner, but must be such that possession is not shared with any other person. Morgan v. Barrett, 17 Ariz. 376, 153 P. 449 (1915); Bale v. Coffin, 13 Ariz.App. 550, 479 P.2d 427 (1971); Collins v. Smith, 372 P.2d 878 (Okl.1962); Adams v. Lamicq, 118 Utah 209, 221 P.2d 1037 (1950). See also, 3 Am.Jur.2d Adverse...
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