Tucson Consolidated Copper Company, a Corp. v. Reese

• Decision Date: 20 March 1909
• Docket Number: Civil 1083
• Citation: Tucson Consolidated Copper Company, a Corp. v. Reese, 100 P. 777, 12 Ariz. 226 (Ariz. 1909)
• Parties: TUCSON CONSOLIDATED COPPER COMPANY, a Corporation, and FRED W. FICKETT, Defendants and Appellants, v. WILLIAM H. REESE, Plaintiff and Appellee
• Court: Arizona Supreme Court

100 P. 777

12 Ariz. 226

TUCSON CONSOLIDATED COPPER COMPANY, a Corporation, and FRED W. FICKETT, Defendants and Appellants, v. WILLIAM H. REESE, Plaintiff and Appellee

Civil No. 1083

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the First Judicial District, in and for the County of Pima. John H. Campbell Judge. Affirmed.

The facts are stated in the opinion.

S. W Purcell, and G. E. Tralles, for Appellants.

Lovell & Richey, for Appellee.

OPINION

SLOAN, J.

-- In the court below William H. Reese brought suit against the Tucson Consolidated Copper Company, a corporation, and Fred W. Fickett, praying for a perpetual injunction against said defendants restraining them from removing certain obstructions placed by plaintiff on land which had been entered as a homestead by him, and which obstructions were intended to prevent the defendants from crossing said land with their wagons and teams, which they were doing at the time of the suit and threatening to do in the future. The answer of the defendants set up the following facts: That prior to the year 1871 a certain road had been constructed and was in use by the public connecting the west end of St. Mary's avenue of the city of Tucson with a place to the westward of the city of Tucson, designated as "Star Pass." That ever since its construction the said road has been in open, notorious, and constant use by the public as such, and at the time of its construction and ever since has been susceptible of exact identification. That said road is embraced in and passes over the said homestead entry made by plaintiff. That on July 22, 1893, the board of supervisors of Pima county officially adopted and recorded a certain map of Pima county compiled and drawn by the then county surveyor as the official map of said county, on which map said road is duly marked and designated. They further allege that on or about December 24, 1907, and before the filing of the suit by plaintiff, the board of supervisors of said county adopted the following resolution: "Resolved that the right of way for the construction of highways over public lands as granted by act of Congress (Rev. Stats., sec 2477; U.S. Comp. Stats. 1901, p. 1567) be and the same is hereby accepted as far as the grant relates to a certain road in Pima county, territory of Arizona, described as follows: Beginning at the west end of St. Mary's Hospital, thence southwesterly to about 400 (four hundred) yards; thence westerly about three miles; thence southwesterly through a place commonly known and designated as Star Pass to a point connecting with the road running through a place known and designated as Roble's Pass -- that is to say, to an extent of thirty (30) feet on either side of the center line of said road." The answer further alleged: That on December 30th of the same year said resolution was recorded in the office of the county recorder of said county; that the road described in said resolution crosses the homestead entry made by plaintiff and is the subject matter of the action; that they, in common with many other persons having property interests in the Tucson Mountains, have been accustomed to the use of said road in going to and from their said properties; and that there is no other road by which they can do so. The trial court rendered judgment in favor of plaintiff as prayed for by him in his complaint, whereupon the defendants have appealed.

The facts set up by the appellants in their answer to the complaint, and as above set forth, were shown to have been substantially...