Public highway vs private property boundaries

Transcription

1 Public highway vs private property boundaries Item Type text; Thesis-Reproduction (electronic) Authors Huckelberry, C. H. (Charles Howard), Publisher The University of Arizona. Rights Copyright is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction or presentation (such as public display or performance) of protected items is prohibited except with permission of the author. Download date 20/04/ :06:51 Link to Item

2 PUBLIC HIGHWAY VS PRIVATE PROPERTY BOUNDARIES by Charles Howard Huckelberry A Thesis Submitted to the Faculty of the DEPARTMENT OF CIVIL ENGINEERING AND ENGINEERING MECHANICS In Partial Fulfillment of the Requirements For the Degree of MASTER OF SCIENCE WITH A MAJOR IN CIVIL ENGINEERING In the Graduate College THE UNIVERSITY OF ARIZONA

3 STATEMENT BY AUTHOR This thesis has been submitted in partial fulfillment of requirements for an advanced degree at The University of Arizona and is deposited in the University / Library to be made available to borrowers under rules of the Library. Brief quotations from this thesis are allowable without special permission, provided that accurate acknowledgment of source is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by the head of the major department or the Dean of the Graduate College when in his judgment the proposed use of the material is in the interests of scholarship. In all other instances, however, permission must be obtained from the author. SIGNED: APPROVAL BY THESIS DIRECTOR This thesis has been approved on the date shown below: PgZLIP B. NEWLIN Professor of Civil Engineering Date

4 TABLE OF CONTENTS Page LIST OF ILLUSTRATIONS v ABSTRACT vi CHAPTER 1. INTRODUCTION DEDICATION DEEDS AND GRANTS CONDEMNATION V COUNTY HIGHWAYS STATE HIGHWAYS... I LEGAL REMEDIES TO QUIET TITLE...., LAND SURVEYS THE OPERATION OF LAW Statutory Law and Common L a w Evidence Effect of Evidence The Surveyor or Engineer in Court CASES OF FRIEDENBERG VS. COUNTY OF PIMA AND COUNTY OF PIMA VS. N E V I L L E Cause of Action History of Surveys History of Titles C o n c l u s i o n CASE OF COUNTY OF PIMA VS RIVER ROAD.. 99 Cause of Action iii

5 iv. TABLE OF CONTENTS Continued Page History of Surveys «..» 100 Conclusions CASE OF COUNTY OF PIMA VS.PIONEER TITLE AND TRUST COMPANY AND LICAVOLI Cause of Action Legal Descriptions Right-of-Way Map and Subdivision Plat Documentation History of Field Surveys Conclusions CASE OF YORSTON VS.COUNTY OF PIMA Cause of Action ' Conclusions, KLEINDALE BOULEVARD Documents and Plats which Affect Kleindale Boulevard Conclusions GREEN VALLEY DESERT MEADOWS NUMBER ONE Authority for the Right of the State of A r i z o n a Conclusions CASE OF LAWRENCE VS. COUNTY OF PIMA Cause of Action Conclusions SUMMARY OF CASES AND CONCLUSIONS SELECTED BIBLIOGRAPHY

6 LIST OF ILLUSTRATIONS Figure Page 1. Overlap of north-south quarter section lines Tucson Farms Company January 6, 1912 field notes Relative positions of section and quarter section corners in.1909 and Sketch showing the east-west difference between the west section line of Sec. 23, T 13 S, R 13 E in 1976 and the calculated position of Relative north-south, east-west positions of 1975 corners with respect to 1909 positions Positions of corners along east line of Section Survey of Perkins Tract Pima County Highway Department survey along Wetmore Road and 1912 ditch line Survey by Tucson Farms Company v

7 ABSTRACT 'i This work is concerned with expanding the knowledge of surveyors and engineers in the legal principles of boundary location, specifically for highways. A factor essential for the full enjoyment of property is the ability to travel to and from its location. Transportation on the public highways must not be impeded by questionable legal location of right-of-way boundaries. The first section of this paper enumerates and analyzes various statutes of the state of Arizona concerned with state highways, county highways, subdivisions, condemnation procedures, property, deeds and conveyances, and landmarks and surveys. The second section discusses the legal procedure of our present judicial system. Concepts, such as the rules of evidence, rules of civil procedure and the influencing interaction between the judge, attorney, jury, and the surveyor or engineer are presented. The last section of this paper analyzes actual court cases or possible court cases in which the author has had personal experience. The purpose of court action, the cause of court action, the legal and the technical surveying history of the problem is presented. Technical recommendations of the vi

8 vii author, based on statutory laws of Arizona and principles of common law associated with boundary location, are given for each case or possible case. I J

9 CHAPTER 1 INTRODUCTION As defined by the statutes of the state of Arizona, highway generally means the entire width between the boundary lines of every way when open to the use of the public for purposes of vehicular travel; and right-of-way means the privilege of the immediate use of the highway. Right-of-way, when used conventionally with the term highway such as "highway right-of-way," is usually considered to be the full width of land allocated within which the highway may be laid out, opened, and constructed for the purpose of public travel. Conventionally, the term highway has been associated with motor vehicles. Today, land allocated for highway right-of-way is being used more and more for alternate modes of transportation. Land appropriated for highways is being used as a multi-purpose transportation corridor with pathways for pedestrian, bicycle, and vehicular travel. Within the commonly defined right-of-way, sidewalks are constructed for pedestrian travel, bicycle paths are constructed for bicycle travel, and future fixed rail systems of public transportation may be constructed. Since, at any time in the future, it may be necessary to utilize any or all 1

10 portions of the land originally allocated for right-of-way, the full width of highway right-of-way must be preserved. Highway right-of-way is a public commodity necessary for a system of transportation. To insure a functional system of public transportation, highways must be enduring. For highway-boundaries to be enduring, their absolute location must be unquestionable. Questions regarding highway right-of-way generally fall into two categories: questions of location and questions of existence. of location are directly related to the surveyor. Questions Questions of existence are more legal in nature and, therefore, relate to the legal profession. In resolving problems of highway boundaries, members of the surveying profession and legal profession must rely upon the technical abilities of each other. Generally, location and existence problems are caused by.any of the following three basic factors. These factors may act singularly or, to complicate matters, in combination. First, the granting, dedicating, or conveying of the actual highway right-of-way may be incomplete, erroneous, or fraudulent. Second, imperfections in the art and science Of surveying causes consistent highway boundary locations to be almost impossible. These imperfections vary from blunders to accidental and systematic errors. Third, when standard measures of surveying accuracy vary with time and

11 place, relocations -may be substantially different from the original location. For example, the evolution of instrumentation which measures angular, and linear quantities has drastically increased the occurrence of accurate measurements. Therefore, the theoretical certainty of boundary location has correspondingly improved. In addition to the three basic factors directly attributable to conflicts between public highway boundaries and private property boundaries, there is an indirect factor which, by its action, develops location and existence problems. This indirect factor is caused by the process known as urbanization. Urbanization characteristically causes land values to increase drastically. Increasing land values require surveyors to locate boundaries with a correspondingly higher degree of accuracy. Therefore, when highways which were initially located in rural areas have been surrounded by urbanization, boundary problems are inevitable. Proving the legal existence of right-of-way and maintaining the full width of right-of-way is an everincreasing problem in an urbanizing area. It is common knowledge that the transporting of persons and goods is essential to a healthy economy, vital to the national defense, and is. a key factor in human socialization. One might then conclude that the use of right-of-way for transportation is a public necessity and

12 should be protected as a national resource. However, the United States Constitution clearly defines where public rights end and private rights begin. As a matter of constitutional principle, private property shall not be taken for a public purpose without due process of law. How, then, does the surveyor protect the public's interest and yet not infringe on the constitutional rights of the private property owner? This is the dilemma in which the surveyor, who must locate the boundary between private property and public right-of-way, finds himself. There has not been in the past, is not at the present,, and will probably never be in the future, a completely equitable system for the establishment of highway boundaries, particularly when questions of location and existence arise. Unless otherwise noted, all reference materials, documentation, research notes, surveys and correspondence concerning Chapters 10 through 16 are available from the files of the Pima County Highway Department, Tucson, Arizona. Materials are filed according to the chapter headings of Chapters 10 through 16. References which are a matter of public record are available from the files of the Pima County Recorder, Tucson, Arizona.

13 CHAPTER 2 DEDICATION Questions of existence are centered around the absolute right of ownership. Land which is appropriated for the purpose of highway right-of-way belongs fee.simple to the public. Title for right-of-way generally passes by dedication, deeds or grants, or condemnation. To adequately understand the process of land appropriation or confiscation for highway right-of-way, it is necessary to list and explain the statutory laws of the state of Arizona which regulate or provide the foundation for such appropriation or confiscation. This chapter will deal with dedication. Chapter 3 will cover deeds, grants, or other conveyances. Chapter 4 will discuss the process of condemnation. Land may be dedicated for public uses such as parks, schools, churches, highway rights-of-way, and any other use which has a lawful public purpose. Dedication of land for such uses is commonly connected with the subdivision of property into lots, tracts, or parcels. Various Arizona Revised Statutes which affect the subdivision of land and hence, dedication, are listed in this chapter. Following 5

14 each statute is a brief discussion of how the particular statute is applicable to subdivision and dedication. Subdivision de Arizona Revised Statute , fined; applicability. A. "Subdivision": means improved or unimproved land or lands divided for the purpose of financing, sale or lease, whether immediate or future, into four or more lots, tracts or parcels of land, o r,. if a new street is involved, any such property which is divided into two or more lots, tracts or parcels of land, or, any such property, the boundaries of which have been fixed by a recorded plat, which is divided into more than two parts. "Subdivision" also includes any condominium, cooperative, community apartment, townhouse or similar project containing four or more parcels, in which an undivided interest in the land is coupled with the right of exclusive occupancy of any unit located thereon, but plats of such projects need not show the buildings or the manner in which the buildings or airspace above the property shown on the plat are to be divided. B. The legislative body of a municipality shall not refuse approval of a final plat of a project included in a subsection A under provisions of an adopted sub-. division regulation because of location of buildings on the property shown on the plat not in violation of such subdivision regulations or on account of the. manner in which airspace is to be divided in conveying the condominium. Fees and lot design requirements shall be computed and imposed with respect to such plats on the basis of parcels or lots on the surface of the land shown thereon as included in the project. This subsection does not limit the power of such legis lative body to regulate the location of buildings in such a project by or pursuant to a zoning ordinance C. "Subdivision" does not include the following: 1. The sale or exchange of parcels of land to or between adjoining property owners if such sale or exchange does not create additional lots.

15 7 2, The partitioning of land in accordance with other statutes regulating the partitioning of land held in common ownership. 3. The leasing of apartments, offices, stores or similar space within a building or trailer park, nor to mineral, oil or gas leases. The most important aspect of this statute is that it gives a definition of subdivision as it relates to the dispersement of real property. However, two other important points should be noted from this law. First, it indirectly gives a weighted importance to the. creation of new streets by defining a subdivision as the division of lands into two or more lots, tracts or parcels, when a new street is involved. Second, it excludes from the definition of subdivision the sale or exchange of property between adjacent land owners which is the primary purpose of private boundary establishment agreements. Arizona Revised Statute Subdivision plats; projection of street and alley lines; approval; survey. A. When the owner of land, the whole or part of which is in an unincorporated area within three miles from the corporate limits of a city or town having an ordinance establishing minimum subdivision standards and controls, desires to subdivide the land into lots for the purpose of selling it by reference to a map or plat, he shall first give written notice to the city or town of his intention to subdivide the land, naming and describing the land so that it may be identified upon the ground, and shall submit to the city Or town a tentative plat of the land showing the manner in which he desires to subdivide the land.

16 8 B. If the city or town desires that the streets or alleys of the tract conform with the projected streets or alleys of the city or town, or of an adopted plan of the city or town, then the city or town may, at its cost, project the lines of its streets and alleys to the nearest outer boundary lines of the subdivision and, thereon mark the same, and shall supply the owner with the courses of the lines. C. The city or town may also submit to the owner a written report recommending changes in the submitted plat of the location or dimension of streets, alleys, parks, easement for rights-of-way or property intended to be devoted to the use of the public. One copy of the report shall be delivered to the board of supervisors of the county. D. If the report is given to the owner of the lines are so marked and the courses given, the owner within thirty days from the date of service of notice of intention to the city or town, then the owner shall cause the land to be subdivided into blocks, lots, streets, alleys, parks and parkways, so as reasonably to conform to the report and the projected lines and the courses thereof, and shall prepare in duplicate an accurate map or plat thereof on cloth, drawn and attested by a registered civil engineer or registered land surveyor from his survey of the ground. The engineer of registered land surveyor shall, in making the surveys, leave sufficient permanent monuments so that another surveyor or engineer may retrace his work. The nature and location of the monuments shall be plainly shown on the plat. E. The plat shall particularly set forth and describe: 1. Parcels of ground within the tract or subdivision to be used for public purposes or offered fof dedication for public uses, and theif dimensions, boundaries and courses. 2. Either by number or letter, lots intended for sale, or reserved for private use, and their dimensions, boundaries and courses. 3. The location of the subdivision into lots with reference to adjacent subdivisions, the maps or plats of which have been previously

17 9 recorded, or if none, then with reference to corners of a United States survey, or if on land unsurveyed by the United States, then to some prominent artificial monument established for such purpose. Arizona Revised Statute , Subdivision regulation; platting rules; penalty. A. The County board of supervisors shall regulate the subdivision of all lands within its corporate limits, except subdivisions which are regulated by municipalities. B. igo plat of a subdivision of land within the area of jurisdiction of such county shall be accepted for recording or recorded until it has been approved by the board. The approval of the board shall be endorsed in writing on the plat and shall also include specific identification of and approval of the assurances required by this section. Where a county planning and zoning commission exists, the plat shall first have been referred to such commission for its consideration and the board shall have received the. recommendation of the commission. C. Any person causing a final plat to be recorded without first submitting the plat and obtaining approval of the board shall be guilty of a misdemeanor. No county recorder shall accept for recording or record any plat which has not been approved as provided by this article.. D. The grounds of refusal or approval of any plat submitted, including citation of or reference to the rule or regulation violated by the plat, shall be stated upon the record of the board. E. The commission shall recommend to the board and the board shall adopt general rules and regulations of uniform application governing plats and subdivisions of land within its area of jurisdiction. The regulations adopted shall secure and provide for the proper arrangement of streets or other highways in relation to existing or planned streets o r.highways or to the official map for adequate and convenient open spaces for traffic, utilities, drainage, access

18 of fire fighting apparatus, recreation, light and air. The general rules and regulations may provide, for the modification thereof by the commission in planned area development or specific cases where unusual topographical or other exceptional conditions may require such action. The regulations shall include provisions as to the extent to which streets and other highways shall be graded and improved and to which water, sewer, or other utility mains, piping or other facilities shall be installed or provided for on the plat as a condition precedent to the approval of the final plat. F. Boards of supervisors of counties shall prepare specifications and make orders, inspections, examinations and certificates as may be necessary, to protect and complete the provisions and make them effective. The regulations shall require the posting of performance bonds, assurances or such other security as may be appropriate and necessary to assure the installation of required street, sewer, electric and water utilities, drainage, flood control and improvements meeting established minimum standards of design and construction. G. Before adoption of rules and regulations by the board or any amendment thereof as provided in this article, a public hearing shall be held by the commission. A copy of the rules and regulations shall be certified by the commission to the county board of supervisors which shall hold a public hearing after notice of time and place has been given by one publication fifteen days prior to the public hearing in a newspaper of general circulation in the county. H. Approval of a plat shall not be deemed to constitute or effect an acceptance by the county for designation of any street, highway, or other way or open space shown upon the plat into the county maintenance system. However, at such time as the streets, highways or other ways are fully completed in accordance with, the approved plat and written specifications made by the county board, the county shall accept such streets, highways and other ways into the county maintenance system within one year of completion. 10 These statutes provide for the preparation of the subdivision plat.or map, whether within three miles of the

19 11 limits of an incorporated municipality or in the county, by a registered civil engineer or registered land surveyor. They also provide for the permanent monumentation of the subdivision sufficient that another surveyor or engineer may retrace the original survey of the subdivision. These laws specifically state that the boundary of property which is. to be dedicated for public purposes, such as highway rightof-way, be clearly described by dimensions and courses. Arizona Revised Statute hearing; approval; recording. Filing of map; A. One copy of the plat or map shall be filed with the city or town and the other copy with the board of supervisors of the county in which the subdivision is situated, to which shall be attached the petition of the owner praying for the approval of the plat or. map '. B. The board of supervisors shall set the petition for hearing not less than fifteen and not more than thirty days from the date of the filing of the plat or map and petition with the board, and shall cause written notice thereof to be given to the governing body of the city or town. The city or town may appear at the hearing and show cause why the petition should not be granted. Upon the hearing, if it appears to the board that the plat or map reasonably conforms to legal requirements it shall approve and endorse the approval upon the plat or map and transmit it to the county recorder of the county for filing. A dedication of land for the purpose of highways, parks, or other public uses is not valid unless accepted by the public (Walsh 1947). This statute establishes the process by which the public may accept an offer of subdivision dedication. The public may state their preference

20 12 for acceptance or non-acceptance at a hearing set by the board of supervisors. The board, being the duly elected representatives of the public, approve and endorse the. subdivision plat or ma p. Their endorsement constitutes acceptance of the lands dedicated to the public. Arizona Revised Statute limitation; title to streets. 'Subdivision name; A. Upon the plat or map shall be endorsed a name, title or designation of the subdivision and the acknowledgment by the owner or some person for him duly authorized thereunto by deed. B. No title, name or designation shall be given that is the same as that of a subdivision in a city or town in the same county of which a plat or map has been recorded. Co Upon the filing of the plat or map, the fee of all streets, alleys, parks and other parcels of ground reserved therein to the use of the public Shall vest in the public. This statute declares that the estate the public acquires in land dedicated for public purposes is a fee simple estate. This estate to the public is without a limit of duration of usage. All highway rights-of-way, parks and other lands so dedicated are owned and controlled by the public at large. In the state of Arizona, the property owner who purchases a subdivision lot, parcel or tract does not have any interest of title to the centerline of highways which bound, border or run through his lot, parcel or tract. The only interest he may claim in this highway right-of-way is an interest as a member of the general public.

21 13 Arizona Revised Statute by recorder Acceptance of plat - No plat or map shall be accepted by the county recorder for filing unless it complies with the provisions of this article, but if an owner has given to a city or town written notice of intention to subdivide and the city or town has failed or refused within the time specified in this article to project the lines of its streets and alleys and to supply the courses thereof, then the owner may file with the county recorder the plat or map of the subdivision in conformity with law, attaching thereto the sworn statement of the owner of the proceedings. This law is antiquated since all subdivision plats are reviewed by the governing agency having jurisdiction during the time period specified by law. The importance of this statute is not from its express interpretation, but from the implication that a subdivision map or plat must be recorded, by the county recorder. The; dedication of land for public purposes by the previous owner to the public is a transfer in ownership of real property. As will be shown later, all transfers of real property must be in writing and filed in a public.place, such as the county recorder's office. Thus, the filing of the subdivision plat or map for recording completes the last formal requirement for the statutory dedication of land for public purposes. In summary, lands for highway right-of-way may be allocated to the public by dedication. Dedication is the process which transfers real property to the public at large.for purposes clearly indicated on an instrument of

22 14 conveyance. Statutes clearly indicate that the subdivision plat or map is the instrument of conveyance for statutory dedications. Arizona Revised Statute makes it necessary that the offer to dedicate be accepted by the public through their elected officials, the board of supervisors. Arizona Revised Statute indicates the estate gained by the public through dedication by a subdivision map or plat is a fee simple estate. Arizona Revised. Statute indirectly requires the Subdivision map or plat to be recorded in a public place, thereby formalizing the process of dedication where the transfer o f.title to real property has. taken place. Vitally important to the acts of dedication are several principles. First, the person making the dedication must, in fact, have the power to dedicate (Skelton 1930, Wait 1905). He must be the fee simple owner of the lands which he dedicates. Second, the intent of the dedicator is paramount in the act of dedication (Wait 1905). If the dedicator causes, a map or plat to be prepared showing streets or parks thereon, then his intent to dedicate is clear and the act of dedication is irrevocable. Third, for the dedication to have the full authority of the law, it must be made in strict compliance with the statutes provided for such purpose (Skelton 1930). A defective statutory dedication does not necessarily invalidate the dedication

23 15 (Skelton 19 30); however, it does cause questions of legal technicality which may cloud the actual issue of dedication. By full compliance with the statutes of dedication, litigation over formalities is avoided and the legal existence of a dedicated right-of-way is insured.

24 CHAPTER 3 DEEDS AND GRANTS The public may acquire lands for highway right-of- way through, donation or purchase. Donation or purchase implies the transfer of title to real property from a person or persons to the public in general,. Statutes require certain formalities in the transfer of title to real property. Unless these formalities are completed, the conveyance is in jeopardy of being declared invalid due to technicalities. The statutory formalities for conveyancing are as follows: Arizona Revised Statute Formal requirements of conveyance; writing; subscription; delivery; acknowledgment. L A. No estate of inheritance, freehold, or for a term of more than one year, in lands or tenements, shall be conveyed unless the conveyance is by an instrument in writing, subscribed and delivered by the party disposing of the estate, or by his agent thereunto authorized by writing. B. Every deed or conveyance of real property must be signed by the grantor and must be duly acknowledged before some officer authorized to take acknowledgments. This statute requires all transfers of estates to be in writing from the party transferring the estate, given to the party receiving the estate, and acknowledged before 16

25 some officer authorized to take acknowledgments, such as a ' 17 Notary Public. Deeds or grants for highway right-of-way must be in writing, caused to be written by the party conveying the property, delivered to the public through recording and acknowledged before a Notary Public. Arizona Revised Statute Invalidity of unrecorded instrument as to bona fide purchaser; ' acknowledgment required for proper recording; recording of instruments acknowledged in another. state; -exception. A. No instrument affecting real property is valid against subsequent purchasers for valuable consideration without notice, unless recorded as provided by law in the office of the county recorder of the county in which the property is located. B. An instrument shall not be deemed lawfully recorded unless it has been previously acknowledged in the manner prescribed in this chapter except in the case of master mortgages as provided in Arizona Revised Statute C. An instrument affecting real property in this state executed, acknowledged and certified in any other state in accordance with the laws of that state, shall be valid and entitled to record as if executed in accordance with the laws of this state. D. Letters patent from the United States or any grant from the government, executed and authentic gated pursuant to law, may be recorded without further acknowledgment. Conveyances prepared in accordance with Arizona Revised Statute are binding only on the parties to the conveyance unless recorded in the office of the county recorder. Specifically, highway right-of-way deeds or conveyances are not binding on subsequent purchasers of the

26 majority estate unless the instrument of conveyance is recorded in the office of the county recorder. 18 Record of instru Arizona Revised Statute ment duly recorded as notice. The record of a grant, deed or instrument in writing authorized or required to be recorded, which has been duly acknowledged and recorded in the proper county, shall be notice to all persons, of the existence- of such, grant, deed or instrument, but a mortgage of real property may be recorded and constructive notice and the contents thereof given as provided in Arizona Revised Statute The fact that a grant, deed or instrument is recorded is sufficient notice to all persons or subsequent purchasers of its existence. This statute is particularly applicable to partial grants of highway right-of-way where, the original width of right-of-way is increased by conveyance of a strip of land from the majority estate. The fact that a title company has failed to note an instrument which encumbers or decreases a majority estate does not invalidate the deed, grant, or instrument of conveyance. Arizona Revised Statute Law governing validity of instruments;, recording of instruments ' valid when executed; validity of instruments recorded prior to October 1, A. The execution, acknowledgment, form or record of a conveyance or other instrument, shall depend for its validity and legality upon the laws in force when the act was performed. B. Conveyances of real property made and acknowledged according to laws in force in this state at the time the conveyances were made and acknowledged shall have the same force as evidence, and may be recorded

27 19 in the same manner and with like effect as conveyances executed and acknowledged pursuant to the provisions of this chapter. C. Instruments affecting real estate, duly signed and recorded in the office of the proper county recorder prior to October 1, 1913, are legal and valid to the same extent as if acknowledged and recorded as required by the provisions of this chapter. Over the years, the requirements for the construction, wording, acknowledgment and recording of conveyances have changed. The fact that subsequent laws require certain statutory provisions for conveyances does not invalidate previous deeds, grants or other instruments of conveyance. Arizona. Revised Statute intention to convey fee. Presumption of A. Every estate in lands granted, conveyed or devised, although other words necessary at common law to transfer an estate in fee simple are not added, shall be deemed a fee simple if a lesser estate is not limited by express words or does not appear to have been granted, conveyed or devised by construction or operation of law. B. In this chapter, unless the context otherwise requires, "land" means and includes mines and mining claims. The estates in lands granted, conveyed or deeded are fee Simple unless the contrary is clearly so stated on the instrument of conveyance. It has been previously shown that by Arizona Revised Statute the fee to property conveyed by dedication for a public purpose, such as highway right-of-way, vests in the public. Highway rights-of-way

28 20 which are not dedicated by a single subdivision plat or map are generally granted, deeded or conveyed by written instruments of conveyance to the public by many different and separate property owners. A continuous strip of highway right-of-way conveyed by many separate instruments of conveyance gives the public a fee simple Interest in the entire right-of-way. To summarize this chapter, the written instrument of conveyance such as a deed Or grant is another method prescribed by law for the transfer of real property for. highway purposes. The creation of highway right-of-way through a deed or grant must be done in accordance with the statutory requirements regarding the transferring of property estates. Arizona Revised Statute simply requires that the transfer of an estate in real property be in writing, subscribed and delivered by the grantor and acknowledged before an officer acknowledged to take acknowledgments. Deeds and grants creating highway right-of-way are transfers of real property from a particular grantor to the public in general. Arizona Revised Statute 33^411 states that all instruments affecting real property shall not be binding on any future purchaser unless recorded in the office of the county recorder. The purpose for recording instruments

29 affecting real property is to create a permanent record of title which may be examined by anyone; and, in particular, :21 any subsequent purchaser (Walsh 1947, p. 767) «This permanent record will allow persons to determine ownership of property liens, incumbrances, restrictions, limitations and easements which affect the enjoyment of the property. Instruments which are not r e c o r d e d are void with respect to a subsequent purchaser. ' Arizona Revised Statute states that even though a subsequent purchaser has no personal knowledge of a recorded lien, easement or restriction, and the grantor has failed to disclose said lien, easement or restriction, the mere fact that the instrument is recorded is sufficient notice and the particular instrument has full authority against the subsequent purchaser. As per Arizona Revised Statute , every estate in land is a fee simple estate. The most substantial difference between the dedication of highway right-of-way and the deeding of right-of-way is the necessity of acceptance. Dedications, in order to become completely operative, must be accepted by the public. A deed, to have the weight of authority, need not be accepted by the grantee. Acceptance is generally presumed when the grant is of benefit to the grantee (Walsh 1947, p. 439).

30 CHAPTER 4 CONDEMNATION As has been shown'in the previous chapters on dedication and deeds or grants, land for highway right-of-way may be donated or purchased. The acts of donation or purchase imply that the donor or grantor is willing to convey property for highway right-of-way for some consideration. The act of acquiring real property for a public purpose from an unwilling grantor is called condemnation. Condemnation is based on the underlying principle of eminent domain. Eminent domain is the right of the sovereign to take real property. Several state statutes deal with the act of condemnation and the right of eminent domain. Arizona Revised Statute eminent domain may be exercised. Purposes for which Subject to the provisions of this title> the right of eminent domain may be exercised by the state, a county, city, town, village, or political subdivision, or by a person, for the following uses: 1. All public uses authorized by the government of the United States. 2. Buildings and grounds for any public use of the state and all other public uses authorized by the legislature. 3. Buildings and grounds for the use of a county, city, town or school district. 22

31 4. Canals, aqueducts, flumes, ditches or pipes, for conducting water for the use of the inhabitants or for drainage of a county, city, town or village. 5. Raising the banks of streams, removing obstructions therefrom,, in widening, deepening or straightening their channels. 6. Roads, streets and alleys, and all other public uses for the benefit of a county, city, town or village, or the inhabitants thereof, which is author ized by the legislature. The method of apportioning and collecting the costs of the improvements authorized by paragraphs 3, 4, 5 and 6 shall be as provided in the law by which they are authenticated. 7. Wharves, docks, piers, chutes, booms, ferries, bridges, toll gates, byroads, plank and turnpike roads and highways. 8. Steam, horse, mule, electric and cable railroads Or railways. 9. Telegraph and telephone lines and conduits for public communications. 10. Electric light and power transmission lines, pipe lines used for conducting gas, and all transportation, transmission and intercommunication facilities of public service agencies. 11. Aviation fields. 12. Reservoirs, canals, ditches, flumes, aqueducts and pipes, for the use of a county, city, town or village, or its inhabitants, or for public transportation for supplying mines and other industrial enterprises, farms and farm neighborhoods with water for irrigation, domestic and other needful purposes, and for generating electricity. 13. Draining and reclaiming lands, and for floating logs and lumber on nonrnavigable streams. 14. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines, and outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse matter from mines, and an occupancy in common by the owners or possessors

32 24 of different mines, of any place for the flow, deposit or conduct of tailings or refuse matter from their several mines. 15. Byroads, leading from highways to residences and farms. 16. Private canals, ditches, flumes, aqueducts and pipes for conducting water from natural water courses or bodies or from public sources where the lands to be irrigated are not directly reached by such natural water course of public sources. 17. Pipe lines to carry petroleum, petroleum pfoducts or any other liquid. 18. Rights-of-way, station grounds, pits, yafds, sidetracks and other necessary facilities for railways. This statute defines who may use the power of eminent domain and for what uses it may be Used. Specifically, property for roads, streets or alleys which will provide a beneficial use to the public may be condemned. It should be noted that for the act of condemnation of a. highway to be valid, it is first necessary for the governing 'body to take the necessary statutory steps to establish the highway. Arizona Revised Statute taking property by condemnation. Prerequisites to Before property may be taken, it shall appear that: 1. The use to which the property is to be applied is a use authorized by law. 2. The taking is necessary to such use. 3. If the property is already appropriated to some public use, the public use to which it is to be applied is a more necessary public use.

33 25 To protect the citizens of Arizona from an unnecessary and excessive use of the power of eminent domain, this statute requires that before property may be condemned, it must be.shown that the use will be a use previously authorized by law and the condemnation is actually necessary. In relation to highway right-of-way, condemnation may be used to acquire right-of-way if the land to be condemned is actually necessary for the function of travel or construction of the highway. Arizona Revised Statute subject to condemnation. Estates in land The interests, estates and rights in lands subject to be taken for public use are: 1. A fee simple, when taken for public buildings or grounds or for permanent buildings, for use in connection with a right-of-way, or for an outlet for the flow or a place for the deposit of tailings or refuse from a mine or for irrigating ditches. 2. An easement when taken for any use other than those set forth in paragraph A right of entry upon and occupation of lands, and the right to take therefrom earth, gravel, stone, trees and timber necessary for a public use. 4. A use in the water of a streapi, river or spring. The estate taken when land is condemned for highway right-of-way is a fee simple estate. This is the equivalent to the estate in right-of-way resulting from dedication, deeds or grants.

34 26 Arizona Revised Statute subject to condemnation. Private property Private property which may be taken includes: 1. All real property belonging to any person, including any and all water and water rights for the irrigation of any land condemned, belonging to or used in connection with the land for the irrigation thereof, with right-of-way for the water or water rights condemned through irrigating canals and ditches leading to the land condemned. 2. Lands belonging to the state, or to any county, city, town or village, not appropriated to some public use. 3. Property appropriated to public use. 4. Franchises for toll roads, toll bridges, and ferries, and all other franchises, but such franchises shall not be taken unless for free highways, railroads or other more necessary public uses. 5. All rights-of-way through canyons, passes or defiles, and all rights-of-way for any and all purposes mentioned in paragraph 2 of Arizona Revised Statute , and any and all structures and improvements thereon, and the lands held or used in connection therewith, intersected by any other right-of-way or improvements or structures thereon, which Shall also be subject to a limited use in common with the owner thereof when necessary, but such uses, crossings, intersections and connections shall be made in the manner most compatible with the greatest public benefit and least private injury. 6. All classes of private property not enumerated, including property for use in water or water rights, taken for public use when the taking is authorized by law. This statute simply enumerates the types of private.property which may be condemned. It should be noted that the principle of condemnation maximizes the public benefit

35 27 of property condemned. For example, land appropriated for a public use may be condemned when there is a more beneficial or necessary public use. Arizona Revised Statute Right'of state to enter and survey property for, public use. A. Where land is required for public use, the State, or its agents in charge of such use, may survey and locate the land, but it shall be located in the manner which will be most compatible with the greatest public good and the least private.injury. B. The land may be entered upon to make examinations, Surveys and maps thereof, and the entry constitutes no cause of action in favor of the.owners of the land, except for injuries resulting from negligence, wantonness or malice. C. A person seeking to acquire property for any of the public uses authorized by this title is an agent of the state. Agents of the state or political subdivisions have the statutory authority to trespass upon private property for the purpose of making surveys and maps of the property to be taken by condemnation. In summary, condemnation, as it relates to highways is a process of acquiring right-of-way from an unwilling grantor or donor. The act of condemnation is a statutory process regulated by the statutes of the state of Arizona. The principle of eminent domain, which is the basis of condemnation, is controlled by the Constitution of the United States. If, after initiation of necessary establishment proceedings, the future or proposed location of a

36 highway is established and the highway right-of-way cannot be acquired by donation or purchase, then condemnation proceedings. are necessary. The Fifth Amendment to the Constitution guarantees that property shall not be taken without due process of ) ' - '.. law and just compensation. Due process of law in the United States means that every person has the availability of the 28 judicial process to protect his interests. Just compensation must be provided to the person or persons losing title, interest or merely being damaged by the process of eminent domain. Just compensation is usually determined by disinterested or unbiased persons, such as a jury (Brown and Eldridge 1962).

37 CHAPTER 5 COUNTY HIGHWAYS County highways may be decreed by the board of supervisors when petitioned for such by the public. The board of supervisors establishes the location or route for a highway in the manner prescribed by law. Arizona Revised Statute Establishing, altering or abandoning local highways. The board of supervisors may establish, alter or abandon highways in the county and other legal subdivisions, and acquire real property for such purposes by purchase, donation, dedication, condemnation or other lawful means. Such highways may be established or altered by the county to the board of supervisors, or upon petition to the board by the governing body of a legal Subdivision, praying that a highway be established or altered and giving its beginning, terminus and its general course and direction. The board may either reject the petition or act thereon as prescribed by this article. The board may abandon or vacate such highways by resolution as provided in title 18, chapter 5, article 1. Upon presentation of a petition signed by citizens of the county, the board of supervisors may establish the location and route of a highway. The mere establishment of a highway does not transfer title of the property upon which the highway is laid out from the original fee owner to the public in general. Once established, right-of-way for the 29

38 30- highway must be obtained. The acquiring of title to highway right-of-way must be done in a lawful manner. Normallyz land for highway right-of-way is acquired by purchase, donation, dedication, or condemnation. Arizona Revised Statute Survey of proposed highway; notice of hearing. A. Upon filing the petition, the board shall direct the county engineer to make a survey of the proposed highway and file with the board a report of the proposed highway, together with a map as surveyed, showing thereon the legal subdivision of the lands traversed by the survey. If a survey and maps have already been made for any purpose, such data and maps may be used instead. B. The board shall thereupon set a date for a public hearing on the petition. The board shall give notice to the public by advertising once a week for two consecutive weeks in a newspaper in the county. The notice shall state the purpose and the date of the ensuring hearing, and shall direct all persons desiring to object to the action prayed for in the petition to file with the board a statement in writing setting forth their objection or opposition, and to show cause why the petition should not be granted. The county engineer must make a survey and report the proposed location of the petitioned highway. In the report, such items as cost, construction feasibility, and ownership are determined. The report should also make a determination as to what right-of-way must be purchased or condemned for highway completion. Arizona Revised Statute Hearing. A. At the hearing provided for in Arizona Revised Statute , the board shall consider the

39 31 feasibility/ advantages and necessity of the highway sought to be established; and if, in the opinion of the board, the proposed highway is a public necessity, the board may approve the establishment thereof by resolution, and may accept any right-of-way or property donated to the state or the county. B. A landowner or party affected may make and execute a written waiver or release of all compensation or any part thereof, or may grant an easement or other conveyance of property for such purpose. Since the creation of new highways is a public. function, it is necessary that a public hearing be held before the board of supervisors prior to the establishment of a proposed highway. It should be noted that the board may approve the establishment of a proposed highway only if the highway is a public necessity. Only after a resolution of establishment may condemnation proceedings be initiated for the acquiring of highway right-of-way from unwilling donors. Arizona Revised Statute streets and alleys. Abandonment of The board of supervisors may vacate and abandon streets, alleys and avenues outside the boundaries of incorporated cities and towns shown upon recorded plats as dedicated to the public, or to which the public or county may have received title by deed, in like manner and procedure as for abandoning county highways. Since only the board of supervisors, as representatives of the public, may establish highways, it is only logical that they may also abandon highways when the public

40 32 determines that these highways are no longer necessary for transportation. To summarize, the notice of intent to create county highways is accomplished by establishment proceedings. These proceedings are initiated by taxpayers of the county when it has been determined that the proposed highway is a public necessity. A resolution of establishment by the. board of supervisors simply indicates the public's desire to purchase, acquire by dedication, donation, or condemnation real property for highway right-of-way. The establishment proceedings alone do not create a public highway. Right-of-way must be acquired fee simple and the highway must be laid out, opened, and constructed to become a public highway.

41 CHAPTER 6 STATE HIGHWAYS The statutes which regulate state highways may be extrapolated to highways within counties since a county i s ; a political subdivision of the state. Several of the follow- /. - ing statutes deal specifically with boundary location problems associated with highway right-of-way. All of the methods,for acquiring right-of-way for county highwayssuch as purchase, dedication, donation and condemnation apply equally to state highways. This is logical since the public in general travels on state as well as county highways. ' v. Arizona Revised Statute State highways. and routes defined. A. The state highways, to be known as state routes-, shall consist of the highways declared to be state highways prior to August 12, 1927, under authority of law, which the transportation board, after receipt of a recommendation from the director, may add to, abandon or change. If the transportation board proceeds contrary to the recommendations of the director, it shall file a written report with the governor, stating the reasons for such action. The state highways shall consist of such parts of the state routes designated and accepted as state highways by the transportation board. No highway which has not been designated a state route shall become a state highway, nor shall any portion of a state route become a state highway until it ha.s been specifically designated and accepted by the transportation board as a state highway, and ordered constructed and improved. 33

42 B,,. All highways, roads or streets which have been constructed, laid out, opened, established or maintained, for ten years or more by the state or any agency or legal subdivision of the state prior to January 1, 1960, and which have been used continuously by the public as thoroughfares for free travel and passage for ten years or more, regardless of any error, defect or omission in the proceeding or failure to act to establish such highways, roads or streets, or in recording of the proceedings, and all such highways, roads or streets are declared public highways. 34 Paragraph B of this statute gives the public a statutory right of prescription to highways which have been used continuously by the public for ten years prior to January 1, The public act of passage becomes a right of prescription only after the roadway has been constructed, established, or maintained for ten years by public agency and continuously used by the public for ten years prior to January 1, This statute is necessary to preserve passage along roadways where a defect in title exists for the fee simple estate of' the highway right-of-way. If an adjacent property owner has allowed a trespass for a period of ten years, he is essentially estopped from claiming an estate in the imperfect estate of the public. Width of high Arizona Revised Statute ways ; errors in establishing. A. All highways constructed, laid out, opened or established prior to August 12, 1927 as public highways by the territory or state, or by a board of supervisors or legal subdivision of the state, and which have been used continuously by the public as thoroughfares for free travel and passage for

43 35 two years or more, regardless of any error, defect or omission in the proceeding to establish the highways, or in the recording of the proceedings, and all highways established pursuant to law, are declared public highways 66 feet wide, unless the width thereof is otherwise specified. B. No portion of a public highway within, the limits of an incorporated city or town having a population of more than 2,500 shall come under the provisions of this section except as specifically provided for in this title. Methods of establishing highways, acquiring right- of-way, recording documents, and the practice in surveying have changed significantly since the early 1900's. There is also a presumption that ancient documents are to be taken at face value and assumed to be correct. This statute clearly acknowledges the human element involved in establishment proceedings. Clerical and administrative errors will occur as long as people initiate, prepare, and finalize establishment proceedings. These clerical and administrative errors do not invalidate the original intent of establishment; and, furthermore, surveys of a more precise nature made possible by present day technology do not alter the location of highway right-of-way for roads established prior to August 12, Arizona Revised Statute Opening, altering or vacating highway; review of order. A. When the director or the transportation board desires to establish, open, relocate, alter, vacate or abandon a state highway, or any portion thereof, the director shall make and deliver a written report to the transportation board describing the highway,

44 36 or portion thereof, to be affected thereby. If the transportation board decides that the public.convenience will be served, it shall enter a resolution upon its minutes approving the proposed action and authorizing the director to proceed thereon, and to acquire any property therefor by condemnation or otherwise. B. The superior courts may review.by certiorari the action of the transportation board establishing, opening, relocating, altering, vacating or. abandoning state highways. This statute is very similar to Arizona Revised Statute which concerns the establishment or abandonment of county highways. If the transportation board de-? termines that a proposed highway will be in the public interest, a resolution is passed and the director of the transportation board is directed to acquire highway right- of-way by condemnation or any other method. The wording of the statute presupposes that not all property owners along a proposed highway route will be willing donors or sellers and that condemnation proceedings will be necessary. Arizona Revised Statute Purchase, sale or condemnation of land for highway purposes. A. The director, in the name of the state, may acquire, either in fee or a lesser estate or interest, real property which he considers necessary for transportation purposes, by purchase, donation, dedication, exchange, condemnation or other lawful means with monies from the state highway fund or any other monies appropriated to the department. Property acquired for such purposes shall include lands or any interest therein considered necessary for rightsof-way or camp sites, roadside rest areas, water or material needed in the construction, improvement or maintenance of State highways, airports, runways or taxiways or other property under the jurisdiction.

45 37 possession or control of the department, or for spoil banks;, rock quarries, gravel pits, sand or earth borrow pits, or for rights-of-way to the place where material required in the construction, improvement or maintenance of state highways may be located, for offices, shops, maintenance camps, storage yards, inspection or weighing.stations, radio transmitter or repeater stations, and for rights-of-way for access to such location and airports, runways or taxiways. B. Whenever a part of a parcel of land is to be taken for transportation purposes and the remainder is to be left in such shape or donation as to be of little value to its owner, or to give rise to : claims or litigation concerning severance or other damage, the whole parcel may be acquired by any means provided in subsection A of this section, and the remainder may be sold or may be exchanged for other property needed for transportation purposes. C. The right of eminent domain may be exercised by the state for such purposes and the court in which the action is pending shall give the action precedence over other civil actions. Whenever property which is devoted to or held for some public use other than existing street, highway or airport uses for which the power of eminent domain might be exercised is to be taken for such transportation purposes, the director may, with the consent of the person or agency in charge of such public use, purchase real property or an interest there in to be exchanged with such person or agency for the real property so to be taken for transportation purposes. This section does not limit the authorization to the department to acquire, other than by exchange, property for such purposes, or to acquire directly, by condemnation, purchase or otherwise, without such exchange, property held for some other public use by any lawful means set forth in subsection A of this section. D. The authority conferred by this section to acquire real property for transportation purposes includes authority to acquire for future needs provided the transportation board has an adopted and approved state route plan or airport site location for such transportation showing a reasonable need for such property. The director is authorized to lease or

46 38 let at fair rental value any lands which are held for transportation purposes and are not presently needed therefor on such terms and conditions as. the director may fix and to maintain and care for such property in order to secure rent therefrom on terms consistent with, this section. Rents received from property acquired in which federal funds participated in the cost of acquisition shall be deposited in the state highway fund. Twentyfour percent of all other rent so received shall be deposited in the transportation properties rental fund in the state treasury, which fund is hereby created. The balance of such rents shall be deposited in the state highway fund. Income received from rentals under this section shall be credited to the budgetary item from which the property was acquired. G. The director may dispose of real property or any right, title or interest therein, when he determines that it is no longer needed or used for transportation purposes. The director may after the establishment, laying out or substantial completion of a transportation improvement, convey out any such real property or any interest therein which was acquired pursuant to subsection D of this section and which it determines is not necessary for such improvement. Such conveyance shall be made to the highest and most responsible bidder at a public sale held for that purpose. Such sale may be made for cash or on terms of not less than twenty percent down with balance. This statute provides for the condemnation Of real property for highway purposes. Arizona Revised Statute Actions against state concerning lands taken or damaged in construction of highway or airport; limitation. An action brought to recover possession of or to clear title to real property claimed by the state, or any legal subdivision thereof, as a public highway or airport, or any action brought to recover compensation or damage for property taken or damaged in or for the construction of a public highway or airport, shall be commenced within two years after the cause of action has accrued and not afterwards..

47 39 Stated very simply, a property owner seeking just compensation for damages as the result of the construction of a public highway must commence legal action within two years of the date of project completion. Damages may take the form of lands taken but not compensated for during condemnation, access restrictions, construction damages, light, air, sound damages, and lateral support damages. Almost all actions initiated for the previously mentioned reasons are called suits of inverse condemnation. Arizona Revised Statute Misuse of public highway or airport defined; abatement; penalties. A. A person who commits or causes to be committed any of the following acts is.guilty of a misdemeanor: 1. Places or maintains an encroachment or obstruction upon, or makes any use of, or otherwise occupies a public highway or airport of the state or any of its legal subdivisions for any purpose other than authorized public travel, or for communication, transportation or transmission purposes except as otherwise provided in this section. The term "encroachment" includes any structure or object of any kind or character which is placed in, under or over any portion of the public highway or airport. 2. Places or maintains an encroachment or obstruction upon, uses, occupies, damages or otherwise i n t e r f e r e s with a public highway, airport or a public bridge, causeway, viaduct, trestle or dam, unless authorized by the director, or if not a state highway or structure, or airport facility unless authorized by the governing body of the legal subdivision in which such act is committed.

48 3. Molests or destroys any part, projection. Structure, appurtenant or accessory of a public highway or airport, or destroys or otherwise interferes with a drainage ditch constructed for the protection of a public highway or air- port, or a dike ditch, levee, jetty or an embankment appurtenant thereto. 4. Destroys or interferes with a ford, dip, culvert or crossing of a creek, gulch, river or stream by digging away the banks, or by damming, deepening or widening any thereof so as to divert waters upon the public highway or airport or cause injury o r.damage thereto by flooding or otherwise. 5. Places Or maintains any vehicle, aircraft or structure, parked or placed wholly or partly within any public highway, runway or taxiway specifically for the purpose of selling the vehicle, aircraft or structure or of selling or specifically advertising the sale of, at any location, any article, service or thing. 6. Stores > services, repairs or otherwise works upon any vehicle wholly or partly within any highway other than upon a vehicle which is temporarily disabled. 7. Removes, injures or wilfully destroys any tree or shrub standing on a highway. 8. Wilfully obstructs or injures any public highway, runway or taxiway by causing or permitting flow or seepage of water under his control to escape onto the highway, runway, or taxiway. B. A person violating any provision of subsection A of this section shall be punished by a fine of hot less than $25 nor more than $100 for each violation. Each day of violation of any provision of subsection A of this section is a separate violation upon failure to remove or to diligently prosecute the removal of any encroachment after notice under , Each encroachment shall be treated as a separate violation. C. In addition to the penalties prescribed by this section, an act committed contrary to this section is a public nuisance and may be abated by

49 41 injunction, and a person who commits any such act is subject to an action for damages by the state brought by the attorney general, or the county attorney of the county in which the act is committed upon direction of the attorney general. D. The provisions of this section do not apply to any department personnel or agents performing normal construction and maintenance functions and do not apply to any person who. has prior authorization in writing from the director to perform any of the acts referred to in this section. Any physical object placed within the boundaries of the highway right-of-way without the authorization of the governing body is a misdemeanor. The most common type of encroachment into the highway right-of-way is from fences constructed parallel to the highway. This type of encroachment tends to narrow the allocated width of the right-of- way. However, since this type of encroachment is unlawful, the public may remove fence encroachments and open the highway to its full allocated width at any time. The statutes which regulate and control state highways also regulate and control county highways. Arizona Revised Statute gives the public a prescriptive right to highways used for a period of ten years regardless of any color of title against the public. Arizona Revised Statute defeats any defect in the establishment, recording or location of highways established prior to August 12, Establishment or abandonment of state highways is given authority by Arizona Revised Statute Arizona

50 . 42 Revised Statute concerns the condemnation of highway right-of-way. Arizona Revised Statute requires that any civil action which seeks relief from actual highway construction must be commenced within two years from the cause of action.

51 CHAPTER 7 LEGAL REMEDIES TO QUIET TITLE Disputes over the location of boundaries cannot be resolved by the surveyor. They can only be resolved by an establishment agreement between the disputing parties, or by a decree from a judicial body, who has heard testimony and received evidence from both parties involved in dispute. The statutes of Arizona provide legal civil procedure for resolving claims by anyone to the title of real property. These statutes are also used to remove clouds on the title of real property brought about by errors, confusion, or fraud. Arizona Reyised Statute service on attorney general. Parties; claim; A. An action to determine and quiet title to real property may be brought by any one having or claiming an interest therein, whether in or out of possession, against any person or the state when such person or the state claims an estate or interest in the real property which is adverse to the party bringing the action. B. When the State is made defendant,- a copy of the summons and complaint shall be served upon the attorney general. When two parties claim the same area of land as their own, either one party or the other is in error. To 4 3

52 : ' resolve which party has clear title to the disputed area, the facts supporting each parties claim of title are submitted to a court of law. After due consideration of all evidence, the court decides which party has clear title and awards any further relief deemed necessary. Arizona Revised Statute Disclaimer of interest and recover of costs; request for quit claim deed. A. If defendant appears and disclaims all right and title adverse to plaintiff, he shall recover his costs. B. If a party, 20 days prior to bringing the action to quiet title to real property, requests the person holding an apparent adverse interest or right therein to execute a quit claim deed thereto, and also tenders to him five dollars for execution and delivery of the deed, and if such person refuses or neglects to, comply, the filing Of a disclaimer of interest or right shall not avoid the costs and the court may allow plaintiff, in addition to the ordinary costs, an attorney's fee to be fixed by the court. If the defendant disclaims any right in the disputed area, he shall recover from the plaintiff the actual costs he has incurred as a result of the plaintiff's action. If the prevailing party has requested a quit claim deed from the party claiming title 20 days prior to the date of action and the party claiming interest neglects to execute the quit claim deed, then this party shall pay his own costs and the costs of the prevailing party.

53 CHAPTER 8 LAND SURVEYS To this point, it is clear how highway right-of-way is created by either dedication, donation, purchase, or condemnation. However, little has been mentioned about how acquired right-of-way is actually located. The land surveyor and civil engineer are vitally concerned with the correct location of highway right-of-way. To locate highway boundaries with reasonable certainty, the surveyor or engineer must first gather all available evidence of location which may include, but not be limited to, deeds, maps, or plats. Second, the surveyor or engineer must analyze all data which allows and calls for the location of right-of- way. Third, the deed, map, or plat right-of-way should be located on the ground with the actual location closely related to the title location. One of the principle causes of litigation involving highway boundaries is the erroneous relationship between actual ground location and title location. Arizona Revised Statute Petition for establishment of landmarks; monument requirements. A. A majority of freeholders residing, or owning land, in any township, as farmers or ranchers, 45

54 46 may petition the board of supervisors of the county where the lands are located, requesting a survey of the lands of the township to establish permanent landmarks at section and quarter section corners or lost corner monuments on lands previously surveyed by the United States government. B. The board of supervisors shall, within 15 days after receiving the petition, notify the county engineer to survey the lands described in the petition and place monuments of durable stone at each section and quarter section corner. C. The monument Shall: 1. Be not less than 2% feet in length, and not less than seven inches square at the point of projection above the ground.. 2. Have a square, flat top and have plainly cut thereon a cross formed by lines connecting the diagonal corners thereof. 3. Have on the top and side of a monument set at section corners the proper numbering of the : section for which the monument forms a landmark. 4. Have the description and quarter section marked thereon for those monuments set out for a quarter section. : 5. Be placed firmly in the ground, leaving the top when placed on a public highway two inches above the surface, and when not on a public highway, it shall be set to show a square six inches above the surface of the ground. This statute is somewhat outdated since its principle purpose was to provide -a surveying service to farmers and ranchers when the private practitioner was almost nonexistent. However, an important principle derived from this statute s interpretation is the responsibility delegated to the county engineer to reestablish lost section and quarter

55 47 section corners. Practically, the present system of transportation closely follows the United States sectionalized land system; therefore, section and quarter section corners become the primary monuments controlling highway right-of- way. Arizona Revised Statute Minutes or field. notes of survey; requirements; recording. A. The county engineer shall.make certificate of full and correct minutes or field notes of the survey disclosing the exact bearing and distances from each monument to the monument nearest it on any line in the township, and he shall also take bearings from each monument set to all natural and artificial objects within a reasonable distance. B. The certificate and minutes or field notes shall be filed with the county recorder of the county where the lands are located, who shall record them without charge. Maximizing the availability of survey information through the county recorder's office is the objective of this statute. The county engineer's field notes prove to be valuable to.local surveyors who use them when engaged in the practice of boundary location adjacent to public highways. Arizona Revised Statute Monuments at section and quarter section corners; reestablishment of corners; penalty for destruction of monuments. A. Landmarks or monuments established under the provisions of this article shall be set at the section corners and quarter section corners established by the United States survey. If there is a clerical error or omission in the government field notes or bearings, trees, mounds, fences or other locating evidences specified therein, or if

56 48 they are destroyed or lost and there is no evidence by which the corners established by the United States survey can be identified, the county engineer shall reestablish the corners under rules adopted by the United States for the survey of public lands. B. Landmarks or monuments established pursuant to this section shall be presumptively at the section and quarter section corners as originally established by the United States survey. C. A person destroying, disfiguring, removing or disturbing stone monuments set by the county engineer is guilty of a misdemeanor. This statute specifically states that when the county engineer finds it necessary to reestablish a lost section or quarter section corner, said monument shall be reestablished under the rules outlined in the United States Department of Interior1s (1973) Manual of Instruction for the Survey of the Public Lands of the United States. Arizona Revised Statute certain land surveys; contents. Recording of A. A land surveyor shall file a record of land survey not later than 90 days after its completion, with the county recorder of the county where the land is located if such survey establishes points or lines relating to land boundaries or property lines disclosing. 1. A material discrepancy which, in whole or in part, does not appear on any. map or record previously recorded or filed with the county recorder, county engineer, state highway engineer, or the United States Bureau of Land Management.

57 ' - \ Evidence that, by reasonable analysis, might result in alternate positions of lines or points. B. The record, of survey shall be a reproducible map, legibly drawn, printed or reproduced by a process assuring a permanent record as required by Arizona Revised Statute C. The record of survey map shall show: 1. All monuments found, set, removed, reset of replaced, the kind, size and location of such monuments and all other data relating to such monuments. 2. Bearing and length of lines to the nearest one one hundredth of a foot and ties to witness monuments. Other record data may be shown in chains, varas or other types of measurement as implemented by older surveys. 3. Basis of bearings, north arrow or other means of orientation, and scale of map. 4. Name or designation of tract or grant in which the survey is located, and ties to adjoining tracts or grants. 5. Any other data necessary for the intelligent interpretation of the various items and locations of the points, lines and areas shown, 6. Dates of survey. D. The record of survey shall be securely fastened by the county recorder into a separate book provided for that purpose. The county recorder shall keep proper indices of such record of survey by the name of grant, tract, subdivision or cadastral subdivisions by United States of Land Management or general land office. This is a modern statute which requires conflicts in surveys to be analyzed, reported, and duly recorded as public information. Rarely are boundary problems resolved

58 unless court action is initiated, followed by trial with a 50 judicial decree issued which eliminates the problem. Surveyors have little knowledge Of areas with specific boundary problems unless they have personally encountered the problem in their work. This statute, if faithfully complied with, will make the examination and analysis of specific title and boundary problems generally available to anyone. Hopefully, this will eliminate the possibility of a particular blunder, error or omission occurring more than once. Arizona Revised Statute survey; filing; contents. Corner record A. A land surveyor shall complete, sign and file or cause to be filed with the county recorder of the county in which the corner is situated, a written record of the establishment or restoration of public land corners as established by cadastral surveys of the United States general land office or United States Bureau of Land Management, including those monuments designating boundaries of land grants, military reservations, government and Indian reservations, land patents and mining patents, including also those monuments established as mineral monuments by an authorized United States mineral surveyor. The survey information shall be filed within 30 days after the survey is completed, unless the corner and its accessories are substantially as described in an existing corner record previously filed. B. The corner record shall include the following: 1. A report, by sketch or narration, or both, concerning ties to existing monuments presumed authentic.

59 51 2. Acceptable monuments found in a perishable or deteriorated condition, a description of what was found and actions taken for the rehabilitation or perpetuation of the monument by the surveyor making such report, 3., New monuments set in a position occupied by an old monument, a description of the new monument as to material, shape, marking, projection above the surface of the ground, distance buried below the ground surface, disposition of the old monument and related items. 4. The procedure followed, by sketch and narration, in reestablishing the corner reported if no acceptable evidence of the original monument or its location can be found.. 5. A description of the monument set to perpetuate the corner as reestablished and reported, indicating any bearing trees or objects noted in the general vicinity of the new monument. 6. The location and nature of all reference monuments or objects which would be useful in the identification, recovery or reestablishment of any monument referred to in such report. 7. Acceptable monuments found with reference monuments, a c c e s s o r i e s and general surroundings materially differing from the information contained in previous corner records. The conditions observed in the survey which ma-, terially differ from the original recordation shall be clearly reported by sketch and narration. C. The county recorder shall keep proper indices Of such corner records by the name of grant, tract, subdivision or cadastral subdivisions by United States Bureau of Land Management or general land office. A monument cannot speak for itself. It cannot describe if it is an original monument, or if it is in its proper position. Only through complete notes and descriptions

60 can a monument receive the full authority to which it is entitled. The requirement of recording makes all corner monument records public information available for examination and analysis. Arizona Revised Statute system; zones; composition. Arizona coordinate A. The Arizona coordinate system is the system of plane coordinates which has been established by the United States coast and geodetic survey for defining and stating the positions or locations of points on the surface of the earth within the state of Arizona. B. The Arizona coordinate system shall contain three zones as follows: 1. The West zone, composed of Mohave and Yuma counties. 2. The Central zone, composed of Coconino, Maricopa, Pima, Pinal, Santa Cruz and Yavapai counties. 3. The East zone, composed of Apache, Cochise, Gila, Graham, Greenlee and, Navajo counties. C. In any land description in which the Arizona coordinate system is utilized, the system shall be designated "Arizona coordinate system,, Zone," with the name of the appropriate zone inserted. Arizona Revised Statute system; zone definitions. Coordinates of A. The plane coordinates of a point on the earth's surface, to be used in expressing the position or location of such point in the appropriate zone of this sytem, shall consist of two distances, expressed in feet and decimals of a foot. One of these distances, to be known as the "X-Coordinate," shall give the position in an East-and-West direction; the other, to-be known as the "Y-Coordinate,"

61 shall give the position in a North-and-South direction. These coordinates shall be made to depend upon and conform to the coordinates, on the Arizona coordinate system, of the triangulation and traverse stations of the United States coast and geodetic survey within the state of Arizona, as those coordinates have been determined by such survey. B. For the purpose of more precisely defining the Arizona coordinate system, the following definitions of the United States coast and geodetic survey are adopted: 1. The Arizona coordinate system. West zone, is a transverse mercator projection of the Clarke Spheroid of 1866, having a central meridian " West of Greenwich, on which meridian the scale is set at one part in fifteen thousand too small. The origin of coordinates is at the intersection of the meridian ' 00 West of Greenwich and the parallel " North latitude. This origin is given the coordinates of "X" equals five hundred thousand feet and "Y" equals zero feet. 2. The Arizona coordinate system. Central zone, is a- transverse mercator projection of the Clarke Spheroid of 1866, having a central meridian ' 00" West of Greenwich, on which meridian the scale is set at one part in ten thousand too small. The origin of coordinates is at the intersection of the meridian ' 00" West of Greenwich and the parallel " North latitude. This origin is given the coordinates of "X" equals five hundred thousand feet and "Y" equals zero feet. 3. The Arizona coordinate system. East zone, is a transverse mercator projection of the Clarke Spheroid of 1866, having a central meridian ' 00" West of Greenwich, on which meridian the scale is set at one part in ten thousand too small. The origin of coordinates is at the intersection of the meridian ' 00" West of Greenwich and the parallel " North latitude. This origin is given the coordinates of "X" equals five hundred thousand feet and "Y" equals zero feet.

62 Arizona Revised Statute system. Ground markings of The position of the Arizona coordinate system shall be as marked on the ground by triangulation or traverse stations established in conformity with standards adopted by the United States coast and geodetic survey for first-order and second-order work, whose geodetic positions have been rigidly adjusted on the North American datum of 19 27, and whose coordinates have been computed on the system defined in this article. Any such station may be used for establishing a survey connection with the Arizona coordinate system. Recording pre Arizona Revised Statute requisite; exception. No coordinates based on the Arizona coordinate system, purporting to define the position of a point on a land boundary, may be presented to be recorded in any public land records or deed records unless such point is within one-half mile of a triangulation or traverse station established in conformity with the standards prescribed in Arizona Revised Statute , except that such one-half mile limitation may be modified by a duly authorized state agency to meet local conditions. Arizona Revised Statute more than one zone; description. Tract located in When any tract of land to be defined by a single description extends from one into the other of the above coordinate zones, the positions of all points on its boundaries may be referred to either of the two zones, the zone which.is used being specifically named in the description. Arizona Revised Statute Public lands survey descriptions; conflicts; control. Where coordinates based on the Arizona coordinate system are used to describe any tract of land which in the same document is also described by reference to any subdivision, line or corner of the United States public land surveys, the description by

63 55 coordinates shall be construed as supplemental to the basic description of such subdivision, line or corner contained in the official plats and field notes filed of record, and in the event of any conflict the description by reference to the subdivision, line or corner of the United States public land surveys shall prevail oyer the descrip^ tion by coordinates. The statutory recognition of the Arizona State Plane Coordinate System is a relatively modern improvement in survey boundary control. As recognized by Arizona statutes, the basic purpose of the state plane coordinate system is to perpetuate positions or locations of points on the surface of the earth. Theoretically, each state plane coordinate position is related to the fundamental spherical coordinates of the earth, latitude and longitude. With a universal reference system of latitude and longitude, any survey point which is accurately related to the state plane coordinate system can be reestablished if lost or obliterated. State plane coordinate systems,, because of their regional nature, are not only an essential surveying reference system, but they also function as a system through which an urbanized area may be analyzed mathematically. High speed digital computers are capable of forming and analyzing mathematical models of urban areas. State plane coordinate systems are a logical framework or basis for such urban modeling. The problems which confront urbanized regions of the United States today' in the areas of mass

64 56 transit, water resources, air pollution, environmental quality, social and economic development, may all be mathematically modeled using a state plane coordinate system. Thus, the state coordinate system combined with an electronic computer, is a valuable tool in the field of civil engineering and urban planning. The. use of a state plane coordinate system has two important benefits in the process of land boundary location. First, a land corner whose position on the system is known, can never become lost within, the legal meaning of the term. Plane coordinates cannot become superior to physical evidence of a monument's position? however, when all evidence of a monument position has vanished, plane coordinates may become the best available evidence for monument restoration or reestablishment. The record review, field note research, field recognizance and proportional measurement now necessary for the reestablishment of lost or obliterated original survey monuments will be minimized, if not eliminated, by the use of a state plane coordinate system. Second, by the use of a coordinate system, the task of resurveying or reestablishing land boundaries is greatly simplified and the cost is proportionately reduced. The American Congress on Surveying and Mapping, the American Society of Civil Engineers and the American Bar Association, all professional societies of the surveying,

65 engineering and legal profession, endorse the use of state plane coordinate systems.

66 CHAPTER 9 THE OPERATION OF LAW The operation of law is absolutely essential to the surveyor or engineer who locates land boundaries. In the establishment of land boundaries, where human judgment plays. a dominant role, differences of opinion reflected in alternate boundary locations are inevitable. Law provides for the judicial resolution of conflicting boundary locations. It is interesting to note that the judicial resolution of conflict does not necessarily imply the prevailing of justice. This is particularly true in the location of land boundaries where interpretive judgment is necessary. Oftentimes, the surveyor or engineer who believes his location is absolute and unquestionable finds his opinion overturned by the courts. The surveyor or engineer should always remember that the law is designed to promote stability, not create chaos. In certain applications, the operation of law may appear unjust; but individual liberty and personal rights must, at times, yield to social order and stability. It would, indeed, be unjust to society if the court system, through its endeavor to do j ustice, caused greater injustice and greater confusion.

67 The first eight chapters of this work enumerate and explain the statutory law of the state of Arizona which, in 59 some way, deal with boundary location. It is very important that the surveyor or engineer have a working knowledge of the laws which govern boundary location. Every surveyor or engineer is presumed to know the law of boundaries and locates boundaries according to the law as it is written (Brown and Eldridge 1962). Statutory Law and Common haw Statutory law is the body of law created by regularly constituted legislative bodies. Statutory law is based on the power vested in the legislative branch of the state or federal government by state or federal constitutions. Common law is defined as that body of law which does not rest for authority or any express or positive declarations of the will of the legislature. Common law is created by custom, usage, precedent, or antiquity and derives its force from the decisions of the courts. As stated by Brown (1969), statute law takes precedence over common law. A statutory law which conflicts with common law is superior to common law. A land boundary located by a common law principle which has been revoked by a statute is located erroneously. Therefore, the statutes listed in Chapters 2 through 8 are of major importance since they exercise a primary degree of control over boundary location.

68 . 60 For statutes to be effective, they must be applied and enforced. The enforcement or application of a statute is done by statutory interpretation of the judge. Generally, Cataldo et al. (1973) state that statutory interpretation has three forms of application. First, a statute can be interpreted with the intention the legislature had in creating the statute. Second, the literal wording of the statute can form the basis for interpretation. Last, the statute may be interpreted on the basis of past, present and future policy. Evidence Evidence, as defined by McCullough and McCullough (1946, p. 77) is "the legal means of proving or disprov- - ing any matters of fact presented at a trial or other judicial inquiry." Evidence may be presented to a jury or judge by a variety of methods. Evidence which is presented by testimony of witnesses is called parol or oral evidence. Presentation of writing, records, pictures, maps or other documents is known as written or documentary evidence. A physical object introduced to prove a fact is the presentation of real evidence. Evidence may also take the form of judicial notice which is simply the acknowledgment of wellknown and commonly accepted facts. To have authority in a trial or judicial review, evidence must be admissible; i.e., not rejected from

69 consideration.. Evidence is admitted for consideration at the discretion of the court. The reason.for the qualification of evidence is to reject testimony or data which would only confuse the issue, compound the problem and mislead, the judge or jury. For evidence to be admissible, it must be relevant to the issue, competent under established rules of law, and must be material in that it tends to prove or disprove the issue (Brown and Eldridge 1962). Evidence may be rejected if it is irrelevant, incompetent or immaterial. Irrelevant evidence is that which has no logical connection or is not legally applicable to the issue (McCullough and McCullough 1946). A witness is generally incompetent to testify to an issue unless the witness has a personal knowledge of the facts of the issue. Evidence which does not tend to prove or disprove an issue, or has no bearing on the facts in issue, is termed immaterial and inadmissible (McCullough and McCullough 1946). Parol or oral evidence as given by a witness is generally regarded as subordinate to written or real evidence. The most important function of parol evidence is to prove or explain other forms of evidence. For example, oral evidence can clarify certain ambiguities of an executed deed. Oral evidence is admitted to verify certain conditions or facts of which a witness has direct knowledge such as a person who observed the location of physical objects or monuments (Brown and Eldridge 1962).

70 There are two types of witnesses who will present oral or parol evidence to the court: the layman and the expert. A surveyor or engineer is classified as an expert witness if he is professionally qualified to the satisfaction of the court. A lay witness has no technical knowledge concerning the principles upon which the expert relies. The major difference in the parol evidence given by the expert and the parol evidence given by the layman is in the latitude of admissibility. The lay witness may only testify to facts of which he has personal knowledge. Therefore, a lay witness cannot testify as to the law of boundaries or modify, change or contradict written testimony (Brown and Eldridge 1962). A form of oral or parol evidence which is generally ruled inadmissible is termed hearsay evidence. Hearsay evidence depends on the statements either true or false of someone other than the witness (McCullough and McCullough 1946). The reasons for the inadmissibility of hearsay evidence are many. Some of the more important ones are as follows: (1) the original statement was not made under oath, (2) the original statement may have been misunderstood or incorrectly heard or remembered, (3) hearsay evidence generally tends to confuse the issue, obscure or cloud the facts and prolong the trial (McCullough and McCullough 194 6). Therefore, if the witness testifies as to where a certain

71 63 person told him he saw the surveyor set the original monument, the testimony would be inadmissible as hearsay evidence. McCullough and McCullough (1946) states certain exceptions to the inadmissibility of hearsay evidence. Evidence given at a former trial or judicial inquiry is generally admissible. Public documents are admissible since they are thought to be kept by authorized, competent and disinterested people. Ancient documents, i.e., those which are 30 years-or more old, are admissible. For example, documents and maps which are considered ancient documents and which relate to public or private boundaries are admissible without the testimony of the originator to prove their authenticity. Documentary or written evidence includes writings, maps, pictures, printed matter, graphs, etc., and is divided, into either public documents or private documents (McCullough and McCullough 1946). Private documents are either attested or unattested. To attest a document, the document must be executed before witnesses who acknowledge the document and the persons executing the document. For obvious reasons, attested documents are usually held to be more reliable than unattested private documents. Public documents are either those documents held by a public official as a part of his official duties such as the county recorder or documents kept in the normal course of business of a public.

72 64 official such as the records of the county engineer. Generally, the public documents are taken at their face value without further oral testimony to prove their correctness or validity. However, parol evidence, particularly expert testimony, is admissible and may disprove or modify public documents. Because documentary evidence is reduced to writings and, thereby, less subject to misinterpretation, it is presumed superior to oral or parol evidence. Of the types of evidence, real evidence is generally given the greatest authority. Real evidence comprises either things presented to the jury as exhibits or things to which the jury is brought (McCullough and McCullough 19 46). Survey monuments are 'considered real evidence. Since to present a survey monument as an exhibit would effecitvely destroy its purpose, photographs of a monument 1are admissible as real evidence. Oftentimes, a first-hand view by the judge or jury of an area affected by a boundary dispute will clarify volumes of oral testimony. Evidence which does not require the sworn testimony of any witness but only presentation by the attorney is called judicial notice (McCullough and McCullough 1946). Facts of which the court must take judicial notice include public law or statutes of the United States, public law or statutes of the various states, the common law matters of public interest, matters of public history, matters of which

73 65 a particular court has specific knowledge, and all well-known or established geographic, scientific or physical facts. Facts of which the court may take judicial notice are facts of common notoriety. The principle of judicial notice is essential to an effective, functional and expedient judicial system. The doctrine of judicial notice eliminates the necessity of proving facts which should be common knowledge to everyone (McCullough and McCullough 1946). Effect of Evidence In civil cases, the -affirmative party has the burden of proving his allegations to the judge or jury (Brown and Eldridge 1962). The plaintiff has the burden of proof throughout the trial except for counterclaims made by the defendant. It is important for the jury or judge to consider which party has the burden of proof since, if, at the conclusion of the trial neither party has effectively proved or disproved the principle issues, the verdict will be against the plaintiff (Dunham and Young 1971). Evidence operates to prove or disprove a fact or series of facts which, when taken either collectively or separately, provide proof of the plaintiff s allegations or the defendant's denials. The party with the burden of proof will generally present his case first (Cataldo et al. 1973). The plaintiff will present his witnesses to introduce oral evidence in

74 66 support, of his case. His attorney may present any documentary or real evidence in support of his client s case. The attorney may also present facts to the court of which they may take judicial notice. Brown and Eldridge (1962, p. 15) enumerate the following rules of law which affect the operation of evidence : "(1) For declaring what is to be taken as true without proof? (2) For declaring the presumptions of law, both those which are disputable and those which are conclusive; (3) For the production of legal evidence; (4) For the exclusion of whatever is not legal; and (5) For determining, in certain cases, the value and effect of evidence." These rules give the Surveyor or engineer performing boundary surveys an insight as to which facts or statements a court of law may accept as. evidence and what relative importance a single piece of evidence may have. Surveyors and en- ( gineers should endeavor to make boundary locations based on evidence of the highest relative value and importance. The party who has the burden of proof does not have to prove his case beyond a reasonable doubt# as in a criminal action, but only has to prove a preponderance of evidence (Cataldo et al ). Preponderance does not imply that all of the evidence presented must be in favor of the party who has the burden of proof. It has been defined as: "to incline an impartial mind as to one side

75 '. \ rather than the other" or "to remove the cause from the ;e? realm of speculation" (Brown and Eldridge, 19 62, p. 19) Preponderance requires the evidence presented by one side to be more credible and convincing than the evidence presented by the opposite party. The Surveyor or Engineer in Court In disputes of actual boundary location, the surveyor or engineer plays a predominant role in the trial. It is mainly upon his testimony, as to how the judge or jury will decide the technical merits of either the plaintiffs' or defendants' case. Since the judge and also persons composing a jury are not technically educated, it is important, for the surveyor or engineer to testify in simple language, avoiding technical terms seldom used outside of his profession. Additionally, the surveyor or engineer must act, during his testimony, as an educator, educating the judge and jury in the technical methods of boundary location. To convince the judge and jury that his particular boundary location is correct, the surveyor or engineer must explain. 'and show that the conclusions he has reached would be the same if performed by the foremost experts of his profession. Therefore, th^s surveyor or engineer must first educate the judge and jury in the proper methods of boundary location and then show that he has used these methods.

76 68 The surveyor or engineer, when testifying, will usually testify as an expert witness. He should be well- qualified in the principles of boundary location. The expert witness should possess a combination of knowledge and experience which is at least equivalent to and, hopefully, superior to other members of his profession. This is true since routine boundary locations usually do not end up in litigation. The more difficult, complex cases which require a great deal of skill and judgment on the part of the surveyor or engineer have a higher probability of ending in litigation. When making boundary locations, the surveyor or engineer should do so using all of his intelligence, experience and honesty. This will hopefully minimize litigation over boundary locations.

77 CHAPTER 10 CASES OF FRIEDENBERG VS. COUNTY OF PIMA AND COUNTY OF PIMA VS. NEVILLE The cases of John R. and Lynne B. Friedenberg, Plaintiffs z versus County of Pima, A Body Politic of the State of Arizona, Defendants, and County of Pima, A Body Politic of the State of Arizona, Plaintiffs, versus William D. and Luz M. Neville, Defendants, involve the absolute location of property boundaries. This conflict arises because of the existence of two separate and distinct north-south quarter section lines of Section 23, Township 13 South, Range 13 East, Gila and Salt River Base and Meridian. These two north-south quarter section lines cause an overlap of approximately 40 feet in real property interest (see Figure 1). Pima County's interest revolves around the physical and legal location of a dedicated roadway known as Fairview Avenue or Brown Avenue. Cause of Action In 1909 Willis P. Haynes, the owner of the south half of the northeast:: quarter and the north half of the southeast quarter of Section 23, Township 13 South, Range 13 East, employed J. B. Wright, a civil engineer, who platted ' 69

78 70 S e c r / O A S 3, 7 ~ / 3 S. / P / /? / i l / r o 4 y <? l o r e A / o r r o s o / f t te' M o r r / j i A / o I Z / s t a & j e /&,/=&. 2 2 M t r / ! O/P L O T 9 T o o r r / o A / o e 0//s t /a j o oc//?u?y M o A s c / M O M r C 2//r&? o f s e c r / o / / 2 9 ' H / e r M o x e Figure 1. Overlap of north-south quarter section lines.

79 71 a subdivision for him known as Rillito Park. The subdivision map, as drawn by J. B. Wright, was filed in the office of the Pima County Recorder in Book 3, Page 17 of Pima County Plats and Maps and recorded July 22, By writing on this plat, J. B. Wright performed a survey of the north half of the southeast quarter and the south half of the northeast quarter of Section 23, Township 13, South, Range 13 East. On this plat, he designated specific bearings, distances and monuments to mark the location of Rillito Park. Specifically, the plat of Rillito Park indicates the distance between the east quarter corner and the center of Section 23 as 2633 feet. The next subdivision in this area was recorded on June 27, 1952, with the platting of Vista de Lago filed in the office of the Pima County Recorder in Book 9, Page 113 of Pima County Plats and Maps. The south boundary of this subdivision is the east-west midsection line of Section 23, Township 13 South, Range 13 East and the southwest subdivision corner is the west quarter corner of Section 23. The linear distance given on this plat from the west quarter corner to the west one-sixteenth corner on the midsection line is feet. On July 22, 1958, the subdivision plat of Moreland Vista was recorded in the office of the Pima County Recorder in Book 13, Page 22 of Pima County Plats and Maps. The

80 72 south boundary of this subdivision is.the east-west mid- section line of Section 23, and the southeast subdivision corner is the center of Section 23. The distance given on this plat between the west one-sixteenth corner, a common corner with Vista del Lago, and the center of section is feet. Moreland Vista calls for a north-south midsection line. From the subdivision plats of Rillito Park, Vista del Lago and Moreland Vista, the total platted distance from the east quarter corner to the west quarter corner of Section 23 is feet. Recent field surveys indicate the actual ground distance between these two points is feet. Therefore, a shortage of feet occurs between the existing measurements along the east-west midsection line of Section 23 and the called for dimensions by the plats of Rillito Park, Vista del Lago and Moreland Vista. The property owned by both John R. and Lynne B. Friedenberg and William D. and Luz M. Neville is described by a quasi metes and bounds sectional description, having as a basis of reference, the north-south midsection line of Section 23. Quite understandably, these two property owners claim as a basis for their property description the north-south quarter section line which would result in maximizing their property area. This particular midsection line is the One shown on the plat of Moreland Vista.

81 Pima County claims the north-south midsection line 7 3 which is shown on the plat of Rillito Park. This particular north-south midsection will provide for continued public use of a roadway known as Fairview or Brown Avenue. History of Surveys The original survey of Township 13 South, Range 13 East, Gila and Salt River Base and Meridian was performed by S. W. Foreman in On March 20, 1871, the Government Land Office filed with the Survey General's Office in Tucson, Arizona, an official survey and field notes for Township 13 South, Range 13 East. The subdivision of sections with Township 13 South, Range 13 East was done by S. W. Foreman during February 14 through 20, Specifically, in Section 23, the official plat map refers to the area of Section 23 as being 640 acres with the following given chain dimensions around the exterior boundary of Section 23. On the south boundary, an east-west dimension of chains or feet; on both the east and west boundaries a i dimension of 80 chains or 5280 feet; and, on the north boundary, a dimension of chains or feet. A case in 1929, D. C. Huntley, plaintiff, versus Herman Schulze, defendant, tested the location of the section corner common to Section 11, 12, 13 and 14. This particular case, Huntley versus Schulze, involved the location Of the

82 true line between Sections 23 and 24, 13 and 14, 11 and 12, and 1 and 2. Paul Fernald, surveyor for Schulze, surveyed the line from the southeast corner of Section 35, Township 12 South, Range 13 East, Gila and Salt River Base and Meridian set by the survey of the fractional Township 12 South, Range 13 East by H. F. DuVal in 1911 to the southeast corner of Sectin 23, Township 13 South, Range 13 East set by the survey of Township 13 South, Range 13 East by S.VW. Foreman in 1871, The purpose Of the suit brought by Huntley against Schulze was to resolve the overlap created by the location of the Fernald line with respect to the original Foreman line. After hearing testimony from both parties and from a special surveyor selected by the court, Fred W. Fickett, Judge of the Superior Court, ruled in favor Of the plaintiff and the Foreman line. In a findings of fact and Conclusions of law and Memorandum Opinion from the Bench, Fred W. Fickett ruled: 1. ' That the survey of Township 13 South, Range 13 East by S. W. Foreman in 1871 was an official survey and that the section corners and the quarter corners established by that survey controlled the location of the boundary line between properties. 2. That corners have not been lost and the sites of the original Foreman monuments are known.

83 That even though the original measurements and field notes do not agree with the existing location of corner, the physical location of those corners are unchangeable and the measurements are to be changed to conform to the known corners. The important point to remember concerning Section 23 is that the survey made by S. W. Foreman in 1871 was held to be the original and correct line. Thus, the monu- mentation placed by Foreman throughout Township 13 South, Range 13 East should share the same degree of reliability. Additionally, Fred W. Fickett, Judge of the Superior Court, declared in that monuments set by the original surveyor, even though they may be obliterated, are unchangeable no matter how much in conflict with the original measurements or field notes. On July 22, 1909, Willis P. Haynes recorded a subdivision known as Rillito Park. This subdivision was a subdivision of the south half of the northeast quarter and the north half of the southeast quarter of Section 23, Township 13 South, Range 13 East. According to notations on the Official subdivision plat, the 32 lots within Rillito Park were surveyed during July 12 through 16, 1909, by J. B. Wright, a civil engineer of Tucson, Arizona. By proportioning dimensions given on the plat of Rillito Park, assuming J. B. Wright performed his survey of the Rillito Park

84 76 boundary in accordance with Government Land Office instructions, the south boundary of Section 23 should measure 5262 feet, the east boundary of Section 23 should measure 5280 feet, the west boundary of Section 23 should measure 5280 feet, and the north boundary of Section 23 should measure 5270 feet. It has been conjectured that the cause of the problem in Section 23 is simply the result of an erroneous boundary survey of Rillito Park performed by J. B. Wright. Researching J. B. Wright's background, it was found that he was, at one time, commissioned by the Surveyor General of the United States to perform surveys of the public domain for the United States. With this in mind, it is probable that J. B. Wright had an acceptable knowledge of the proper method for subdividing a section and performed his boundary survey of Rillito Park in accordance with those methods. The Pima County Highway Department, during the 1940's, acquired survey field books from the Tucson Farms Company. These survey field books provide valuable information since they are the only written record of a great majority of the surveying performed along the farming areas of the Tucson Valley. These survey field books were examined to determine what surveying had been performed or what monumentation was found in Section 23 which would clarify the present confusion over the north-south quarter section line of Section 23.

85 77 On January 6, 1912, Tucson Farms Company ran a random line near the south boundary of Section 23. In Transit Book 5 on Page 12, the following notes were made with regard to this line: "Commencing at the intersection of fences, random corner of 23, 24, 25, 26 and chain West magnetic south 76 50' west, 2640 feet set stake and 5280 set stake. This line is about three feet south of fence running east-west, to fence running north and south 2670 feet and 12 feet north to an old stake, then 5174 feet to a fence, then 5298 feet to a stake 19 feet north." The sketch on Page 12 indicates that the corner from which this random line starts, begins at the intersection of fences. The north-south fence being the fence constructed on the east side of the Oracle Highway (see Figure 2). On -January 8, 1912, again in Transit Book 5, Page 16, a surveyor for Tucson Farms Company began a line running north from the government corner common to Section 26, 27, 34, 35, then ran north feet set a stake and continued to run north to 5280 feet and Set a stake. Along this north-south line, Tucson Farms Company made reference to a stake which had a nine foot easterly off set from their line. Their specific reference on Page 16 stated that this old stake was the corner common to Section 22, 23, 26, 27: "Old stake in accordance with government witness trees." The witness accessories are described as an old stump found 37

86 78 H O T TO S C J L S / 9 r a O L O O T 4 * r - / A / A C C O # a 4 A /C H //T H G O IS H f / r v s s s T R E /2 T O C O O H CO. 3 H. T>G. /. /S' T'O. OCO ET4/TC MAS DOM CO? ^ \ 2 G E T GTJk'E' SO' TS/CGOA/ t f / J M O O M L/A/C GAT. /=>. /, CO XI '..GOiScc/?. f/astshsccr/oas o e E C A J C C G j / / V 4 C C O H D A M C E la/ath G O t t I H / T H C C S T E C E Figure 2. Tucson Farms Company January 6, 1912 field notes.

87 feet south of the old stake. Analysis of fence lines noted and dimensioned on the Tucson Farms Company sketches indicate that the Old stake, as noted on Page 16, being the section corner of 22, 23, 26, 27, is identical to the old stake noted on Page 12 of Transit Book 5 where this old stake measures feet from the random corner of 23, 24, 25, 26. When running the lines of Section 23, the original field notes by S. W. Foreman indicate that at the corner common to 22, 23, 26, 27, a post with pits as per the original instructions was set for this section corner. Foreman also noted witness trees, one being a mesquite tree ten inches in diameter, bearing south 5 west, 56 links distance another, being a six inch diameter mesquite, bearing north 0 ' 75 east, 84 links distance. Since 56 links is equivalent to 37 feet, and the first witness tree, the 10 inch mesquite would lie approximately south of the corner and therefore, the call given for the witness tree in the original 1871 notes fits the witness tree found and noted in Transit Book 5, Page 16 of the Tucson Farms Company survey field notes. T h i s correlation proves the location of the original stake set by S. W. Foreman for the section corner of Section 22, 23, 26, 27. On Page 18 of Transit Book 5, there is a specific note as to the probable true location of the section corner common to Sections 23, 24, 25, 26. A note on Page 18 states

88 80 that the actual section corner is not along the east-west fence line but in the middle of the road: "In the road in line with intersection of these two fences is claimed by some people as being the corner of Section 2 3, 24, 25, 26." This would place the section corner in the middle of the existing Oracle Highway and approximately 40 feet to the west of the random section corner noted on Page 12 of Transit Book 5. Deducting 40 feet from the dimension given between the old stake and the random section corner of 23, 24, 25, 26, results in a dimension of 5258 feet between a point which is Claimed by the residents of the area as being the southeast section corner of Section 23 and the old stake substantiated as being the original monument for the southwest section corner of Section 23. This particular dimension is somewhat short of the record plat dimension of 5275,38 feet for the south line of Section 23; however, it is substantially longer than the foot dimension between the existing section corners today (see Figure 3). Extrapolating the dimensions given, by J. B. Wright for the survey of Rillito Park, the south boundary of Section 23 should measure 5262 feet. This dimension is close to the dimension of 5258 feet which has been determined through analysis of the Tucson Farms Company field books to be the actual dimension of the south boundary of Section 23 around the years 1912 to The actual

89 SEC. 23, T.I3 S., R.I3E 81 NOT TO s c a l e '<?<*V s &? * / <? t t & a 3<Z9*S7'<?<9'H/ t-; 3 z./ * -. /, & s a < 9 /<?'/ ' -7 3 ' Z C Z '5 0 8 ' M e s*/4 0G /V :79/ [fo.sm W/TM atuss o/tc NW 1/4 NE 1/4 /To J/7/z u w r oe/rr T M tv/zm 3 & S 3 O/Str N 89 22'l5"w ' - T T S t t T U r 2 * 3?.3. 7*'3* <?^8'h/ ' 73./* > 3.AS W/TH &/?>/3 3 0/3C // HS 393 % ' X/ 89 3? ^ T t S 'A f >V 3 3 6' r o s.m. w /t h D/SC A /. 4 a c x * i " 2 9 ' SW 1/4 S E 1/4 /*D. 3.M M//r*/. 3 43S 0/3C Ug>- A/go*zr'3?'W zz3 as 99' ' W r --- ' 3 7CmS 6 /a * t* 09.0'.20 4%* V. <r. Z zxv >V8 9 2l t7mh/ 2 S 9 C /0 3 ' ^ r - Z. - ^ a r * / '3 0 '* ' 06. r MCS A/ *0 7 /»JTx O/SC S 9 C T /0 // A/JO Q9 4 /? T E X SE C T/O A t L/A/ES X / L L / T O P A X X 2 9 S D / / / / 3 / O A /. C4LCC/L4TSO XE/? P X E S E A J T S E C T / 0 7 / A //D Q t / 4 # T C X S E C T /O A / 6 / / / E S P E P 2 0 X 1 / 6 / / 9 7 S. B 4 3 / 2 O X S E 4 X / X E /A /G U 0 0 * 2 9 ' 4 / A S / / E C O A L O A /O T P 6 6Y/S-T/A/G. H /A U A t 0 7 / 0 T P E C A S T X X O P E P T / C /A /6 O X C O T 2 O X P /C C /T O P A X X S O E O / I / / S / O A / Figure 3. Relative positions of section and quarter section corners in 1909 and 1975.

90 overlap of the north-south quarter section line varies from 46.1 feet at the south to 32.1 feet at the north line of 82 Section 23. At the center of the section, the overlap amounts to approximately 38.6 feet. Present measurements place the south quarter corner of Section 23, feet west of the present southeast Section corner of Section 23. Extrapolation of dimensions along the south boundary of Rillito Park would require the dimension from the southeast section corner to the south quarter corner to be 2631 feet. By proportion, this dimension would be 2629 feet using the data analyzed from Tucson Farms Company field survey books. For all practical purposes, the 2631 foot dimension from Rillito Park and the 2629 foot dimension from Tucson Farms are harmonious (see Figure 3). In conclusion, it appears that the east line of Section 23 is in approximately the same position as established by the original 1871 sectional survey by S. W. Foreman. However, the west line of Section 23 appears to have shifted from 80 feet to 89 feet east of its original position. This shift of approximately 80 feet in the west line, of the section would proportion to an approximate 40 foot displacement in the position of the north-south quarter section line, resulting in the present conflict and overlap (see Figures 3 and 4).

91 83 /ol/z / F W / Z 7 ' 3 C "VS'!/<t S.M- (1976) NOT TO SCALE >=2P./Az OS./>/* / S M o r e s *v<x./ "fffz /%T7/ ztvzv /=-i?/pp / p f z e / s r w e s r p e c r / o v Z//V«f 0 P t t C T / O 234 /<% P P O M /I P/Pf/t coc/ajry P 3 P 4 P T M e p r J A / o p p /z o m 4 M/ o p u / s y o f p y p r M S A / r 1 S<?7<S. 67' \ ggl... 7 S y V \*.0 S C 2 4 ~ /3- oce.co*. ^ 0*24'42' " I -*- '/ 4 c o x. 9.pi. (1976) WEST LINE- SEC. 23 PER T. F. Co. a -'.x^t23 J7126 C5/T (1976) Figure 4. Sketch showing the east-west difference between the west section line of Sec. 23, T 13 S, R 13 E in 1976 and the calculated position of 1909.

92 To substantiate the easterly shift in the west line of Section 23, further analysis and examination of historic 84 surveys was performed. Examination of the monumentation along the west line of Section 14 and 23 shows a substantial reverse deflection in the section line between the west quarter corner of Section 14 and the northwest section corner of Section 23. By projecting the west line of Section 23 per the plat of Rillito Park and extending the north half of the west section line of Section 14 south, a theoretical section corner intersection is formed. These two lines fall within nine feet of each other at the theoretical northwest section corner of Section 23 per the plat of Rillito Park. It is interesting to note that at this approximate position, Mr. Trini de la Garza of the Pima County Highway Department found a 1-1/4 inch open pipe in Mr. Percey Jones, a former land owner in the southwest quarter of Section 14 and also an Assistant Pima County Engineer between 1949 and 1954, stated that the south half of the west section line of Section 14 has shifted 40 to 60 feet east of its former position. The statements of Mr. Percey Jones, together with the geometrical analysis of the west section lines of Section 14 and 23 and the discovery of a survey monument near the theoretical position of the northwest section corner based upon data from Rillito Park confirm the shift in the west section line of Section

93 ' from the original position of the S. W. Foreman survey to its present position today (see Figure 4). For the purposes of analysis, the Pima County Highway Department performed a control survey around Section 23 during February of Subsequent surveys were also made to determine if there was a correlation between the existing fences and occupancy of Rillito Park to the sectional lines and monuments of Section 23, Township 13 South, Range 13 East. Examination of aerial photographs dating back to 1941 indicate that the oldest occupation within Rillito Park and adjacent to Oracle Highway is on Lot 2. An occupancy limit and property line appears to be well established by the construction of a wall along the east line of Lot 2 which is on the west right-of-way of Oracle Highway. Computational analysis was performed using existing control survey data, and the occupation of the east line of Lot 2 to compute the positions of the section corners and quarter corners with respect to Rillito Park. Calculating the position of the east quarter Corner of Section 23, it was found that the corner as called for on the plat of ' v, Rillito Park compared within 1.6 feet north-south, 1.8 feet east-west of the present position of an existing survey monument representing the east quarter corner of Section 23 (see Figure 5). Running Rillito Park's record bearing and

94 2 3, r / 3 3, /? / 3 < E a /o r t o s c s. e ro. yoat /VV/Z. I I_ '>27 JM. iv/r/a j f f a / f S o / s c j/fvy D ^ p r O.M. IA//TH S2JSS D/SC I T O. S/S. W / T H j9 /Z 4 3 S D /S C F'O. S A/ J^/T// a e j s o 0 / s c ro. s. M. J V / r H & /Z 4S S 0 / S C )V % C P /A / J Vv? JU/ /y/zy & 2 4 S 3 0 /S C - C O & A / f y? y P f /? /? / /. /. / T O y R 4 /& < C/<?0<?) U - C O /? / V - & yrcl/vjd. C ^ V S J Figure 5. Relative north-south, east-west positions of 1975 corners with respect to 1909 positions.

95 87 dimension to the northeast section corner, it is found that the record position for the northeast section corner falls within two feet along a north-south line of the section corner called for by Arizona State Highway Department plans of Oracle Highway (see Figure 6) and surveys done by various consulting firms. Proceeding from the east quarter corner of Section 23 south to the record position of the southeast section corner, it is found that this position varies by 2.1 feet north-south and 4.2 feet east-west from the present location of an existing survey monument for the southeast section corner of Section 23. From the record bearing and dimension analysis along the east line of Section 23, it is apparent that the three corners along the east section line have probably moved the least in Section 23. The east quarter corner as substantiated through occupational correlation of the east line of Lot 2 has also been substantiated as being in its original position by testimony of residents who have knowledge of its original position. Therefore, to hold the east line of Section 23 and perform further analysis based on this line, was a correct and valid assumption. Detailed analysis of the north-south midsection line and the center Of section reveal data dating from 1909, 1912, 1919 and As has been mentioned previously in 1909, j:. B. Wright, by his survey of Rillito Park, shows the

96 88 j e c r / o A s zz/zr & C T / 3 S. /? / 3 - c A t c v n r s o /=>os/r/oa/ o r r + s f A/.f. COG. O f 3 C C. 2 3 P f G J. M O P L J / V P f o j e c r f- os/-/c?) -. #_p / A / r f f s e c T / o / / L / A J E P L T O G A/A T C P&S/r/OAJ O f THE- A/.f. COP. O f SEC. 3 f j? ^ / / # C C /? S 1 C 2 S 3 3 ' /V. 4 - a * 0 0 ' A / O r T O 3 C P C S A /. 0 3 m3 ' 3 0 ~ H ' - E E C O f. 3 E C. 2 3 S M S.A. - 3 P P 3 S D / 3 C /A S C O AS C P E T C C 3 U P Y E Y M O A /U M E A S 7 0 P. P - E E C r / O A S C O P A S E P P E P P / L L / T O P P P / C E U S O. C P L C U L A r P O P O S / T / O A J, P O L D / A S & P P E S C A S r P E A / C E L / A S E P O P L o r e / 4 ASO P O f S P / O Figure 6. Positions of corners along east line of Section 23.

97 center of section 2633 feet west of the east quarter corner 89 of Section 23. Around 1912, the Tucson Farms Company performed a ditch line survey around a five acre tract located in the northwest quarter of Section 23. Results Of this survey are shown in Transit Book 40, Page 1 of the Tucson Farms Company field notes. This five acre tract was surveyed for Jennie Perkins and was conveyed to Perkins from Julia A. Knapp, the previous owner of the south half of the northwest quarter of Section 23. The significant point about this survey is that the Tucson Farms Company recognized the monumentation of Rillito Park and used such as a basis for their survey. This survey definitely shows a four inch by four inch white post located at the center of section position as called for by the plat of Rillito Park (see Figure 7). In 1919, the Pima County Highway Department performed a survey along Wetmore Road. In this survey, a bridge was noted near the center of Section 23; 70.5 feet east of this bridge and ten feet north, a one-inch pipe was also noted as being found. In Tucson Farms Company Transit Book 40, Page 23, this same bridge is noted as being found. This bridge was to span an irrigation ditch running from south to north 32 feet west of the north-south quarter section line. Using the bridge as a common call for both surveys and subtracting the 32 foot call Of Tucson Farms for the north-south quarter section line from the 70.5 foot call

98 90 PERKINS TRACT SURVEY o/* orrcm/ s z / r ex/sts' N % NOT TO SCALE 5? y^fv^r/yvj* r & j t c r p e & t p c. { / q / z p j 10 A/.09*&7'HS S OO.-X' 30' N r> L /O'cr/rSST" Z/X/f S/O.7' fi>q/a/t3 TUC3 OK/ /BX& ju S CO. C U * K f X BK.40 PQI O &C.H.O. /97& /?/Lt/ro rw ** h o k o / a j g s t u c c o OF LOT 2 OK/ O S?K C L m % 1 m 1 UJ > e 2 at K O f*t?escajt y-'/k/r '/9 COA. s.hi /K/r '/<? co*. esc. 23 ; r e * # /. /. / t o * * * * ; ' d t ' M < 30 ^ WETMORE». Figure Survey of Perkins Tract.

99 . 91 for the location of a one-inch pipe, the remainder is 36.5 feet which is equivalent to the present overlap of the 1909 north-south quarter section line and the 1958 north-south quarter section line (see Figure 8). In Tucson Farms Company Transit Book 45, Page 13 in late 1913 or early 1914, definite ties and calls are made to two sets of one-sixteenth corners along the north-south quarter section line. One set of one-sixteenth corners are the result of the Rillito Park survey and the other set appears to belong to the Tucson Farms company. The difference between these double set of corners is equivalent to the present overlap today between the Rillito Park northsouth quarter section line and the Moreland Vista northsouth quarter section line. History of Titles The chain of title on the property subdivided as Rillito Park by Willis P. Haynes begins with the granting of patent through the Homestead Act to Manuel Aragon and his heirs. His patent covered the south half of the northeast quarter and the north half of the southeast quarter of Section 23, Township 13 South, Range 13 East. It was granted on June 11, On June 28, 1909, Manuel Aragon and his heirs conveyed this property by bargain and Sale deed to Willis P. Haynes. On July 22, 1909, Willis P.

100 92 G / r c / s ^ o c ^ r / o A / A/eet/A/n T ^ A C 7 ~ r t / C S O A S A A A M COAAAHA/yf/V/Z) 4 A / 0 /*//uj era. Astvy & my>7:('/9/9).. /// cos?- r/ss X / 3 S M W ' / 4 s e c 2 3 M O T y v OCAS, c Ti/COOAS /=X*M CO. SAT4 0. M O C 3 / 9 / / - Z 2 P s m /o o c y te e o c M r socat/ o m : 'o e & C 3. M. :/MT'/4 : w y * ' > I ( w e T A s o M e ) - 5S3^U MO /~M/M2(TMCO.?) /%// o. 7 M A M 3 / r e o O A T //-J? 0 - / 9 / 9 M M Figure Pima County Highway Department survey along Wetmore Road and 1912 ditch line survey by Tucson Farms Company.

101 Haynes filed the subdivision map of Rillito Park in the office of the Pima County Recorder. The chain of title of the property owned by Frieden- berg and Neville is a little more complicated. The United States of America, under the authority of the Homestead Act, conveyed the south half of the northwest quarter of Section 23, Township 13 South, Range 13 East to Migual Amperano on September 3, On August 27, 1902, Migual Amperano assigned all interest to this property to Julia A. Knapp. The next recorded conveyance out of the south half of the northwest quarter of Section 23 was from Julia A. Knapp to Jennie Perkins on March 26, From this point on, the titles are carried down in a quasi metes and bounds sectional description through various individuals to Friedenberg and Neville. The important point about the chain of title concern ing the south half of the northwest quarter is in the convey ance between Julia A. Knapp and Jennie Perkins. This particular conveyance is described in a typical metes and bounds fashion. The point of beginning is "on the quarter section line, 30 feet west of a point on the west line of lot 9 of Haynes' Rillito Park Subdivision which last named point is 42 feet south of the northwest corner of said lot 9." This description specifically states that the quarter section line referred to is the same quarter section

102 94 line established by the survey of the Rillito Park Subdivision. Therefore, the predecessor in title to both Frieden- berg and Neville recognized as the north-south quarter section, the line designated by the plat of Rillito Park. Conclusion 1. By the drawings and markings on the plat of Rillito Park, various, public streets were dedicated to the public and held in trust by the politic body of jurisdiction. Among the streets so dedicated to the public was a 30 foot strip of roadway designated as Brown Avenue or more commonly known today as Fairview Avenue.. Willis P. Haynes intended this roadway to serve as the west boundary to his subdivision of Rillito Park and connect Wetmore Road to Rillito Avenue. The physical bed of the road has been used since the subdivision of Rillito Park in Its primary purpose in 1909 was to serve the orchards in the area and provide a maintenance road-for irri^ gation canals. Between 1940 and 1950, the existing roadbed was widened and maintained for roadway purposes to individual dwelling units constructed on lots within Rillito Park. Aerial photographs from 1941 to show this road to be opened, graded and maintained for use as a public road. Therefore, the physical bed of the roadway has been

103 opened and enjoyed by the public at least between the years of 1941 and Its use was consistent with the use outlined by statutory law which defines the lawful use of public roadways. Arizona Revised Statute specifically states that any action to recover property taken or to receive compensation for damages resulting from the construction of a public highway must be initiated within two years after the construction of the highway. Fairview Avenue was dedicated as a public highway in 1909 and aerial photographs prove its physical existence since 1941:./ Therefore, the plaintiff in Friedenberg versus Pima County, and the defendant in Pima County versus Neville appear to have no cause of action or defense in either of these cases. J. B. Wright, in 1909, performed his boundary survey of Rillito Park in accordance with established methods for the subdivision of sections and he used the monuments set by the original S. W. Foreman survey in Around 1915, the Tucson Farms Company, noting original Foreman monuments, failed to acknowledge the Foreman monuments and set their own corners in the vicinity of the original monuments but in distinctly different locations. Thus, the north-south quarter section line as shown by the

104 plat of Rillito Park is the correct boundary line to be used in these cases since it has been long held principle and rule that, "The lines, corners and boundaries of the survey of public lands as returned by the surveyor general and approved by the government are unchangeable" (Clark 1959, p. 347). When the problem revolves around a conflict between a junior and senior survey, the conflict is to be resolved in favor of the senior (Clark 1959, Skelton 1930). Rillito Park is senior to the survey of Moreland Vista by 49 years. In particular, Skelton (1930) states that his rule has particular force when the lines of the prior survey are. well established and some junior grant calls for the line of the senior. In the conveyance from Julia A. Knapp to Jennie Perkins, a conveyance of a junior grant in the south half of the northwest quarter, the senior north-south quarter section line of Rillito Park is a definite descriptional call. Because of property ownership elements, it is clear that lots within Rillito Park were sold with reference to the original plat. Actual occupation, except for slight rotation, agrees with dimensions called for on the plat of Rillito Park. Clark (1959) states that where an ancient fence is

105 97 built along a property boundary and the controlling monuments become obliterated, the best evidence for the original monument location is the."ancient fence," particularly where ancient ownership elements are in conflict with modern surveys. The wall constructed along the east line of lot 2 of Rillito Park easily qualifies as an ancient fence. By its use as a basis of resurvey, a great majority of the ownership elements within Rillito Park are harmonious with each other but in direct conflict with the north-south quarter section line of Moreland Vista. Therefore, actual ownership within Rillito Park is in accordance with the subdivision plat and the physical location of Fairview Avenue is consistent with the record plat location. The property known as the south half of the northwest quarter of Section 23 was also granted by a Homestead Act patent. Willis P. Haynes acquired the property from Miguel, Aragon. Julia A. Knapp bought the south half of the northwest quarter of Section 23 from Miguel Amparano. Julia A. Knapp, in 1919, conveyed a portion of the south half of the northwest quarter to Jennie Perkins. In the writings of this conveyance or the actual legal description by which she conveys this property, Knapp specifically

106 : 98 mentioned that north-south quarter line of Section 23, Township 13 South, Range 13 East. She described this quarter line as being shown on the plat of record for Rillito Park as recorded on July 22, 1909, in the office of the Pima County Recorder. By the written acts of Julia A. Knapp, the fee simple owner of the south half of the northwest quarter of Section 23, she recognized the boundary line between her property and the subdivision of Rillito Park as the north-south quarter line established by the plat of Rillito Park. It is conclusive that Knapp acted with full knowledge and recognition of Rillito Park when she conveyed a portion of the south half of the northwest quarter to Jessie Perkins. This written act of establishing or recognizing the Knapp property boundary or limit of ownership as the north-south quarter section line shown on the plat o f Rillito Park should preclude both Neville and Friedenberg from claiming as their property boundary the north-south quarter section line shown on the plat of Moreland Vista. There exists a fundamental principle of law that one cannot convey property which one does not own? hence, Knapp could only convey property up to the. Rillito Park north-south quarter section line.

107 CHAPTER 11 CASE OF COUNTY OF PIMA VS RIVER ROAD The case of County of Pima, A Body Politic of the State of Arizona, Plaintiff, versus 1600 River Road, A Limited Partnership, Defendants, involves action to remove a physical obstruction within the right-of-way dedicated by the subdivision plat of ColonioTaxco. Colonio Taxco, Block 1, was recorded in the Pima County Recorder's Office at Book.16, Page 80 of Pima County Plats and Maps on March 28, Arizona Revised Statute specifically prohibits the obstruction of a public highway or placement of an encroachment within the right-of-way dedicated for roadway purposes. Cause of Action The subdivision, Colonio Taxco, is a subdivision of a part of the northwest quarter of the northeast quarter of Section 19, Township 13 South, Range 14 East, Gila and Salt River Base and Meridian lying south of River Road. The drawings on the subdivision plat delineate for dedication a north-south alley, an east-west alley and additional 99

108 100 right-of-way for River Road. The writing of the fee owners, those haying the capacity to dedicate, specifically dedicated to the use of the public all streets, roads, drainage easements and alleys.. On March 14, 1963, the board of supervisors approved the plat as conforming to the statutory requirements for subidivison platting. With this approval, they accepted the right-of-way dedications of the plat of Colonio Taxco. Once dedicated by the fee owners and accepted by the governing political body, the fee to dedicated streets, alleys, parks, etc., vests in the public and is held in trust by the governing political body. Sometimes after the dedication of the alleys and additional rights-of-way, a concrete block archway was constructed at the easterly end of the east-'-west alley along the south boundary of Colonio Taxco. The west portion of this archway completely obstructed the alley near its connection with River Road. History of Surveys The boundary survey for this subdivision was performed by a local consulting firm. They surveyed the boundary, and set the lot corners for Block 1. In the certification of survey, the surveyor states the monuments, or lot corners, are set in the positions indicated on the

109 subdivision plat and consist of thd material as described 101 in the notes. ' On June 30, 19 75, the Pima County Highway Department performed a resurvey of a portion of Block 1 of Colonio Taxco. This resurvey was based on three original monuments found along the south right-of-way line of River Road and the extreme east boundary of Block 1. Two one-half inch steel pins set in concrete were found for the extreme northeast and southeast corners of Block 1. The resurvey indicates their geometric position on the ground is as shown on the plat of Colonio Taxco. The measurements made by the Pima County Highway Department during its resurvey were the same as the original measurements given on the subdivision plat. In addition, the original description of.these monuments match the actual monuments found in the field. The third monument was found at a distance of feet westerly along the south right-of-way of River ROad from the northeast corner of Block 1. This monument, a lead cap pin, is identical to the description of the original monument; therefore, it is.conclusive the lead cap pin is an original monument set by the original surveyor. From the survey control established from the three previously described monuments, the alley right-of-way was

110 established on the ground and measurements were made which describe the location of the block archway encroachment. 102 Conclusions 1. The subdivision plat of Colonio Taxco, Block 1, was filed under the provisions of Arizona Revised Statute The plat complies with all technical provisions of this statute regulating the preparation and construction of subdivision plats. According to Arizona Revised Statute 9-475, all subdivision plats or maps which reasonably conform to the legal requirements of Arizona Revised Statute shall be approved by the board of supervisors and transmitted to the county recorder for recording. Upon recording the plat or map, Arizona Revised Statute indicates the title to streets passes as fee simple to the public. This fee simple conveyance is held in trust for the public by the governmental body having jurisdiction. The subdivision, Colonio Taxed, was signed in the dedication by the fee simple owner indicating the transfer of his estate in the streets and alleys shown on the subdivision plat to the public. It is conclusive that the subdivision plat of Colonio Taxco, Block 1, is a valid subdivision plat whose dedications were done in the manner'prescribed by law.

111 It is evident from the notes on the subdivision plat that the monuments found in the field during the resurvey by the Pima County Highway Department were original monuments placed by the original surveyor. The geometric relationships between the three found monuments and their physical composition; i.e., onehalf inch iron pin and lead capped pin were identical to the calls made in the writings and drawings on the face of the subdivision plat. From the original monumentation, it is possible to reestablish the lines delineating the alleys and Other rights-bf-way. From this delineation, the areas which were conveyed to the public by the plat of Colonio Taxco were outlined and the physical obstructions were noted as being in violation of Arizona Revised Statute

112 CHAPTER 12 CASE OF COUNTY OF PIMA VS. PIONEER TITLE AND TRUST COMPANY AND LICAVOLI The primary purpose of the case of County of Pima, A Body Politic of the State of Arizona, Plaintiff, versus Pioneer Title and Trust Company and Peter Licavoli, Defendants, was to recover costs incurred by the Pima County Highway Department caused by the obstruction of natural drainage, allegedly by Peter Licavoli, across Wrightstown Road. The secondary purpose was to answer the counterclaim by Peter Licavoli that the Pima County Highway Department converted five feet of his private property to highway right-of-way. Cause of Action During October, November and December, 19 72, Peter Licavoli caused a dam, dike, burm or mound of earth to be placed along the north right-of-way of Wrightstown Road, thereby blocking the natural drainage across said road. In a counterclaim against Pima County, Peter Licavoli alleged Pima County, without just compensation and due process of law, wrongfully converted a strip of land approximately five feet in width by 2,000 feet in length to 104

113 105 highway right-of-way for Wrightstown Road. The supposed act of taking was accomplished by a Pima County construction crew in 1966 by moving a fence five feet northward along the south boundary of the Grace Ranch. This counterclaim was complicated by the fact that the east-west midsection line of Section 3 used by at least one official subdivision map was not the same east-west midsection line as shown on the highway right-of-way map for Wrightstown Road recorded December 2, 1929, in the office of the Pima County Recorder at Book 1, Page 19 of Pima County Road Maps. Legal Descriptions The legal description for the Grace Ranch, the property owned by Peter Licavoli, and the area which is a part of this action is as follows: Lots 1 and 2 of Section 3 in Township 14 South of Range 15 East, G. & S. R. B. & M., and the southwest. quarter of the southeast quarter of Section 34 in Township 13 South of Range 15 East, G. & S. R. B. & M., Pima County, Arizona. Lot 5 and the southeast quarter of the northwest quarter of section 3, Township 14 South of Range 15 East, G. & S R. B. & M., Pima County, Arizona. That portion of the southwest quarter of the northeast quarter of Section 3 in Township 14 South of Range 15 East, G. & S. R. B. & M., Pima County, Arizona, more particularly described as follows, to-wit: Beginning at the southwest corner of the northeast quarter of said Section 3, Township 14 South of Range 15 East, G. & S. R. B. & M.,

114 106 Run thence easterly along the south line of the northeast quarter of said Section, a distance of 495 feet to a point; Thence northerly parallel with the west line of the northeast quarter of said section, a distance of 880 feet to a point; Thence westerly parallel with the south line of the northeast quarter of said section, a distance of 49 5 feet to a point on the west line of the northeast quarter of Said section; Run thence southerly along the west line of the northeast quarter of said section, a distance of 880 feet, more or less, to the place of beginning. Except therefrom the southerly 25 feet which was conveyed for road purposes to Pima County, Arizona, by deed dated December 31, 1919, and recorded February 3, 1920, in said County Recorder1s Office in Book 74 of Deeds at Page 364. The official legal description from the establishment files of the Pima County Highway Department for the right-ofway of Wrightstown Road reads as follows: The Board now came to a final determination on the petition praying for the establishment of a road described as follows: Beginning at approximately the northwest Corner of Section 4, Township 14 South, Range 15 East, of G. & S. R. B. & M., and extending in a general east. and southeast direction over Sections 3 and 4 of said township to a point opposite the Wrightstown public school, a distance of approximately two and one-half miles. It appearing to the Board that all notices have been duly posted, and all other legal requirements having been complied with, and no protest against same having been received, and the Board being fully advised in the matter upon motion by member Nathan, seconded by member Mallory, the petition

115 107 was ordered granted, and said road ordered established, and the County Engineer ordered to file the field notes, maps and plats of said road in the Office of the County Recorder for record...the right-of-way for the south branch of.the Tanque Verde, Project No. 11, is a strip of land 75 feet wide, 25 feet of which is on the left and 50 feet is on the right of the centerline of the highway which begins at Engineer's. Station and ends at Engineer's Station as shown on the official road map for Wrightstown Road recorded at Book 1, Page 19 of Pima County Road Maps. Right-of-Way Map and Subdivision Plat Documentation With reference to the right-of-way described by the legal descriptions of the Grace Ranch and Wrightstown Road, a right-of-way map was prepared by the County Engineer on June 3, The right-of-way map recorded for the Tanque Verde South Branch (Wrightstown Road) is a survey from Engineer's Station to Engineer's Station The Pima County Engineer, George S. Foster, acknowledged that the survey for the Tanque Verde South Branch, Project No. 11, was a true and accurate description of the right-ofway for said road. By examination of this right-of-way.map, the survey began along the north line of Section 4, Township 14 South, Range 15 East, Gila and Salt River Basin and Meridian, and

116 108 ended on the east line of Section 3, Township 14 South, Range 15 East. Along the south boundary of the Grace Ranch, it was conclusive the labeled centerline of the highway was the east-west midsection line of Section 3. The writings and drawings on the right-of-way plat indicate any conclusion to the contrary would be illogical. The west quarter corner of Section 3 was not specifically labeled such, but plat geometries again made any other assumption unfounded. Of particular importance was the dimensional tie along the east-west midsection line of Section 3 to the point of intersection for the highway curve between Engineer s P.O. Station and Engineer's P.T. Station The east quarter corner of Section 3 was also not specifically labeled such; however, it was apparent the point of intersection for the highway curve between Engineer s Station P.C and Engineer's P.T. Station was intended to be the east quarter corner of Section 3. It is dimensionally tied to the right-of-way stationing of the Tanque Verde South Branch by the curve's tangent distance. The center of Section 3 was described on the rightof-way map as a 1-1/2 inch iron pipe and a four by four inch redwood post. The described centerline of highway passed through this point and was the same as the midsection line

117 109 of Section 3 between Engineer's Station and Engineer's Station Desert Palms Park, a subdivision recorded January 6, 1961 at Book 15, Page 44 of Pima County Plat Maps, subdivided a portion of the southwest quarter of Section 3, Township 14 South, Range 15 East. The north line of this subdivision ran along a portion of a midsection line of Section 3. From the plat descriptions; it'appeared the center of Section 3 as shown on the plat map of Desert Palms Park was the same center of Section as shown on the right-of-way map of the Tanque Verde South Branch; however, the west quarter corner, described by the Desert Palms Park plat, was definitely not the same as the quarter corner found in the field and used by the 1920 right-of-way establishment of the Tanque Verde South Branch. Two quarter corners were recovered for the location of the west quarter corner of Section 3. One was a 1-1/2 inch open pipe described on the plat of Desert Palms Park and the other was the original stone set by the Government Land Office survey of Township 14 South, Range 15 East. The dimensional difference between these two monument locations was approximately feet in a predominately north-south direction. Field examination at the east quarter corner of Section 3, the point of intersection of the roadway curve

118 between Engineer's Station and Engineer's Station , indicated another survey monument was in place n o for the east quarter of Section 3. This other monument was marked "33/52" and was feet north of the east quarter corner of Section 3 as shown on the right-of-way map of the Tanque Verde South Branch. History of Field Surveys Since Wrightstown Road was first surveyed by L. E. Barker on or near June 3, 1920, Wrightstown Road has been resurveyed by Pima County authorities five times. J. R. Strickland resurveyed the roadway on June 30, C. W. Horton resurveyed Wrightstown Road from October 11 to October 20, M. E. Mershon resurveyed Wrightstown Road in July, E. G. Shesler resurveyed Wrightstown Road during December of 1961, and S. P. Camper, H. H. Skeeles and T. J. Payne performed additional surveys of Wrightstown Road during September of All of these individuals were employed in some official capacity for the Pima County Highway Department. The survey by J. R. Strickland on June 20, 1939, started at the center of Section 3 and ran easterly along Wrights town Road to the intersection of the east line of Section 3. The significant point about the Strickland survey was the actual recognition of the two east quarter corners of Section 3 and single center of section, described as a

119 two-inch capped pipe five inches under the road in a dip. This shows that as early as 1939 the problem of two east- west midsection lines for Wrightstown Road existed. More importantly, the actual field notes indicated the east-west midsection line between the singular center of section and the point of intersection for the roadway curve between P.C. Engineer's Station and P.T. Engineer's Station as" "centerline of existing road and also the old one quarter to one quarter line as per old road map." The line between the singular center of section and the lead capped pipe which is feet north of the curve point of intersection, is labeled as "present one quarter to one quarter line." If the "present one quarter to one x quarter line" was intended to be a; straight line, as is the proper method of sectioned breakdown, the west quarter corner of Section 3 must have been the two-inch capped pipe and not the Government Land Office quarter corner stone. C. W. Horton's survey of Wrightstown Road during October 11 to October 20, 1948, ran from a one-inch lead capped pipe labeled "R & H 470 feet from C. L. of wash on R. W. 1945" to Engineer's P.T. Station Horton's title page to the field notes indicated the intention for the survey as establishing "Lines and right-of-way stakes along the Tanque Verde South Branch Road, No. 10, paralleling the one quarter Section line through the center of Section 3,

120 east-west. Township 14 South,. Range 15 East, also known as 112 Wrightstown Road." important points. The actual field notes indicate several First, the west quarter corner of Section 3 used in Horton's survey was the two-inch capped pipe and not the stone which was used in the original survey. Second, the center of section is the same as was used in J. R. Strickland's survey and L. E. Barker's original survey. Third, the east quarter corner of Section 3 as used by Horton was the point of intersection of the curve between Engineer's P.O. Station and Engineer's P.T. Station Fourth, Horton's monument selection dictated a 00 degree, 25 minute, 20 second deflection at the center of section between the east and west quarter corners. Fifth, by use of the two-inch capped pipe west quarter corner, the central angle, tangents and arc length of the original Curve between Engineer's P.C. Station and Engineer's P.'T. Station were drastically different from the original road map curve data. And sixth, it appears enough monumentstion along the centerline roadway tangent between Engineer's P.T. Station and Engineer's P.C. Station was recovered and/or geometrically correlated to indicate this course was fixed in position from L. E. Barker's original survey to Horton's survey of From Horton's survey, it was obvious that the true west quarter corner of Section 3, the Stone was

121 113 obliterated, i.e./ not recovered, and the obvious monument, the two-inch capped pipe, was used as the west quarter corner of Section 3, Township 14 South, Range 15 East. M. E. Mershon surveyed Wrightstown Road on July 12, 1949, from the southwest section corner of Section 33, Township 13 South, Range 15 East through the Engineer's P.I. Station to Engineer's P.T. Station Mershon1s survey used a 1-1/2 inch capped pipe for the west quarter corner of Section 3, Township 14 South, Range 15 East. Examination of his field notes indicated a one-half inch iron pin was set or found at the location of Engineer's P.I. Station The problem of two separate and distinct west quarter corners for Section 3 was not officially recognized until the December survey by E. G. Shesler. Although inferred by the mathematical analysis of previous surveys, it was not until Shesler1s 1961 survey that both monuments for the west quarter corner of Section 3 were recovered and geometrically related to one another. Shesler discovered the stone quarter corner after reestablishing its apparent position described by the record bearing and distance calls from the December 2, 1929, Book 1, Page 19 Road Map. The original stone was uncovered approximately one foot below grade and in the position reestablished by Shesler1s retracement measurements. Shesler tied his

122 114 survey to the Engineer's P.I. Station where he found a one-half inch iron pin set or found by Mershon's survey and to the center.of Section 23, a two-inch iron capped pipe recovered in Strickland's survey of 19 39, Horton's survey of 1948 and Mershon's survey Of Recently, S.. P. Camper, H. H. Skeeles, and T. J. Payne resurveyed portions of this road during September, The objective of this survey was to determine through which midsection line Wrightstown. Road was originally surveyed, thereby fixing the right-of-way boundaries. During this survey, all of the previously mentioned monuments for the east and west quarter corners and the center of section were recovered. In addition, a monument along Wrightstown Road called for by the C. W. Horton survey was recovered. This monument was described as a one-inch lead capped pipe marked "R. & H. 470 feet from C. L. wash on R. W " Also, a local survey monument, an aluminum capped pin, was. recovered for a right-of-way monument 25 feet left of Engineer's P.T. Station A line from a one-half inch steel pin set by Shesler in 1961, 249,07 feet east of the stone quarter corner through a point which is 25 feet southwesterly of the one-inch lead capped pipe marked "R. & H. 470 feet from C. L. wash on R. W. 1945" and the aluminum capped pin substantially retraces the centerline set by L. E. Barker in 1920.

123 115 The record distance between Engineer's P.I. Station and Engineer's P.T, Station was 2, feet, which was in close agreement with the measured distance of 2, feet. The central angle for the curve between Engineer's P.C. Station and Engineer's P.T. Station was 50 degrees, 14 minutes when measured through the stone midsection line. This angle was substantially closer to the record of 50 degrees and 17 minutes than C. W. Horton's angle of 50 degrees, 36 minutes and 30 seconds. From the previous, it was apparent the line between Engineer's P.I. Station and Engineer's P.T. Station as measured in was the same as was laid out in This being true, then the only line which conforms to the plat record bearing and dimension calls was the line between the stone west quarter corner of Section 3 and the 1-1/2 inch pipe center of section. Therefore, the line from the stone west quarter corner through the pipe center of section to the. steel pin east quarter corner was the centerline of highway as originally surveyed in 1920 by L. E. Barker and acknowledged by G. S. Foster, the County Engineer. The limits of right-of-way are 25 feet north and parallel, and 50 feet south and parallel to this original line. Conclusions 1. As far as the specific charges in the counterclaim, the simple movement of a fence does not constitute

124 116 a lawful act of ownership. Particularly, the agents of a governing political body cannot-affect title without proper statutory proceeding as required by law. Only the elected representatives of the people, the board of supervisors, can act on matters which affect the title to streets; and, then, the board of supervisors can only.acquire right-of-way by a legal conveyance of title. A legal conveyance of title is acquired by deed, dedication, donation or condemnation. Pima County cannot be estopped by the surveys of its agents. Namely, the surveys of Wrightstown Road by C. W, Horton during October 11 to 20, 1948, and M. E. Mershon on July 12, 1949, which show the midsection line of Section 3, the centerline of' Wrightstown Road, as the line between the common Center of section and the two-inch capped pipe west quarter corner. Estoppel cannot be in force against Pima County for the following reasons: (a) Peter J. Licavoli has hot claimed the lines of C. W. Horton or M. E. Mershon to be the true centerline of Wrightstown Road; (b) Pima County has not recognized the midsection line shown on the plat of Desert Palms Park, the Horton and Mershon line, as the ' centerline of Wrightstown Road; and, (c) the agents i

125 of Pima County have no authority to alter the location of fee title to streets since Arizona Revised Statute clearly states the fee title of 117 streets vests in the public at large, the alteration of these fee boundaries must be done by the general public and not by a single agent of the public. The case of Quinn v s. Baage -1:38 Iowa 426 (1909) clearly shows the concept of adverse possession, or possession without written authority, cannot work for or against the public in road matters'. But where the road has been established and continually used, the mere fact that the fences bordering it are not on the true line and the portion beyond has been occupied by the land owner up to the fence and not been made use of by the public will not work an estoppel against the public, but entire width of the highway may be appropriated by the public whenever required for the purposes of travel. The doctrine of acquiescence can have no application to the fixing of a boundary between the abutting owners and the highway, for no one representing the public is authorized to enter into an agreement upon, or to acquiesce in any particular location. The fee to street is in the town or city, but always in trust for the public. The municipality can neither sell nor convey nor authorize their use for private uses (Brown and Eldridge 1962, p. 163). 3. In the conflict between the true location of the west quarter corner of. Section 3, Township 14 South,.'Range -15 East, the two-inch capped pipe must yield to the stone monument. In an Act of Congress, adopting the

126 following general rules of federal survey apply to 118 the acceptance of the stone monument and the rejec-. tion of the capped pipe monument. That the boundaries of the public lands established and returned by the duly appointed Government surveyors, when approved by the surveyors general and accepted by the Government, are unchangeable. That the original township, section and quarter section corners established by the Government surveyors must stand as the true corners which they were intended to represent, whether the corners be in place or not (Manual of Instructions 1973, p. 8). The original monuments set by the original surveyor control the true position regardless of the alternate positions which can later be established by subse-. quent surveys. Numerous court cases recognize the control of original monuments. 4. The actual location of the capped pipe west quarter corner originated in a later survey and was probably installed by single proportionate measurement from the section corners north and south after it was assumed the original stone monument was lost..however, the recovery of the stone monument indicated the original monument was never lost but simply obliterated. An obliterated monument is simply a monument where no remaining traces indicate its original position. By use of acceptable record evidence, such as a map or plat, and from improvements

127 constructed when the original, monument position was known, it is possible to recover obliterated monuments. In this case, the construction of Wrightstown Road and the record bearing and distance calls provided the necessary evidence for the recovery of the stone west quarter corner of Section 3 which had been obliterated. The deed or establishment proceedings by which the public received fee title to Wrightstown Road specifically mentioned the right-of-way map recorded December 20, 1920, at Book 1, Page 17 of Road Maps. in the office of the Pima County Recorder. Therefore, the original parties in dedicating Wrightstown acted with knowledge of the actual road map and its contents. Not only did the parties act with knowledge of the road map but they acted with specific reference to the road map in their descriptions. In Brainin v s. New York, 120 NYS 1093 (1910)it is clear that when a deed description references a map, the map becomes a part of the instrument of conveyance (Skelton 1930).. In addition, the distances, bearings and calls shown on the plat of reference are considered controlling since the grantor acted with respect to the plat of reference (Spencer vs. Levy, 173 SW 550, 1915; see also Skelton 1930).

128 Therefore, all bearings, distances and monument descriptions shown on the plat of Wrightstown Road are considered true and exact, for the accuracy standards of the time, unless the contrary can be proven; and, these plat calls are in force against the grantors and any of their successors or assignees for the delineation of highway right-of-way. It is the duty of the surveyor when performing resurveys which locate lines of title to retrace the original survey by reproducing the original calls, courses and distances; and, thus, recovering the original monuments. Surveyors must recover the lines and corners actually established by the original survey. In this case, the previous surveys indicate the centerline of Wrightstown Road was originally laid out along the stone west quarter corner of Section 3.through the center of section to the east quarter corner of Section 3, a one-half inch steel pin. Geometric reproduction of the calls on the original road map are consistent with the stone quarter corner. Skelton (1930) shows that a plat is simply a record of the actual survey work performed in the field and all the course and distance calls are witnesses for the monuments set in the

129 original survey. If by the use of the record plat course and distance calls a monument is recovered, it is conclusive that the monument is an original monument set by the original surveyor. The right-of-way limits of Wrightstown Road, origin nally known as Tanque Verde South Branch, are controlled by a line from the stone west quarter corner of Section 3 through the two-inch capped pipe center of section to the one-half inch iron pin east quarter corner of Section 3. And by the fixation of this line, a fence approximately along the southerly boundary of the Grace Ranch was encroaching into highway right-of-way.

130 CHAPTER 13 CASE OF YORSTON VS. COUNTY OF PIMA The plaintiff's purpose in the case of Mark A. Yorston, Plaintiff, versus County of Pima, A Body Politic of the State of Arizona, Defendant, was to quiet title in a portion of real property commonly known as 1701 West Caspian Drive. The defendant's purpose was to quiet title in a parcel of real property known as a portion of Caspian Drive. The plaintiff alleges that Pima County claims the northerly 30 feet of his property and fully intends to use said property for road purposes. The defendant must prove that a portion of the north 30 feet of the plaintiff's property belongs fee simple to the public by means of a statutory dedication. Cause of Action In the affidavit of John W. Teal, the plaintiff, Mark A Yorston purchased certain real property recorded in the office of the Pima County Recorder at Docket Book 49 59, Page 318, described a s : That portion of Lot 6 of Rancho Palos Verdes Extension, Pima County, Arizona, according to the plat of record in the Office of the Pima County Recorder, in Book 6 of Maps, Page 34, described 122

131 123 as follows: beginning at the southeast corner of Lot 60 or Oracle Heights Estates, a subdivision of Pima County, Arizona, according to the plat of record in the Office of the County Recorder of Pima County, Arizona, in Book 14 of Maps and Plats, at Page 1.9, said point being the True Point of Beginning. Thence, east along the. north line of Lot 61 of Oracle Foothills Estates and its easterly extension, a distance of feet. Thence, north feet to a point on the north line of Lot 6 of Rancho Palos Verdes Extension. Thence, north 89 34' 30" west, feet, more or less, to a point, being the northeast corner of Caspian Drive, as dedicated on the map of Oracle Heights Estates, recorded in Book 13 of Maps and Plats, at Page 70. Thence, south 00 25' 30" west, 30 feet to the northeasterly corner of Lot 35 of said Oracle Heights Estates.,Thence, south 89 34' 30" east, feet to the northeast corner of Lot 60 of Oracle Heights Estates. Thence, south along the east line of said Lot 60, a distance of feet to the True Point of Beginning. Pima County holding a portion of the above described property in trust for the public as a fee simple estate..u amends the above legal description to read a s : That portion of Lot 6 of Rancho Palos Verdes Extension, Pima County, Arizona, according to the plat of record in the Office of the Pima County Recorder, in Book 6 of Maps, Page 34, described as follows: beginning at the southeast corner of Lot 60 of Oracle Heights Estates, a subdivision of Pima County, Arizona, according to the plat of record in the Office of the County Recorder of Pima County, Arizona, in Book 14 of Maps and Plats, at Page 19, said point being the True Point of Beginning. Thence, east along the north line of Lot 61 of Oracle Foothills Estates and its easterly extension, a distance of feet. Thence, north feet to a point in the north line of Lot 6 of Rancho Palos Verdes Extension. Thence, north " west, a distance of feet to a point being the northeast corner of Caspian Drive as dedicated on the map of Oracle Heights Estates, recorded in the Office of the Pima County

132 124 Recorder in Book_14, Page 19 of Maps and Plats. Thence, south 00 25' 30" west, a distance of 30 feet to a point being the northeast corner of Lot 60 of Oracle Heights Estates. Thence, south a distance of feet to the True Point of Beginning. - The area dedicated to Pima County for Caspian Drive and claimed by Mark A. Yorston, plaintiff, is described as: Beginning at the northeast corner of Lot 60 of Oracle Heights Estates, a subdivision of Pima County, Arizona, according to the plat of record in the Office of the Pima County Recorder in Book 14, Page 19 of Maps and Plats, said point being the True Point of Beginning. Thence, north " east, a distance of 30 feet to a point. Thence, north 89 34' 30" west, a distance of feet to a point. Thence, south 00 25' 30" west, a distance of 30 feet to a point.. Thence, south 89 34' 30" east, a distance of feet to the True Point of Beginning. On March 9, 19 32, the majority of Section 3, Township 13 South, Range 13 East, Gila and Salt River Base and Meridian, was subdivided into Rancho Palos Verdes Extension as recorded in the office of the Pima County Recorder at Book 6, Page 34 of Pima County Maps and Plats. Marvin H. and Celia Volk then purchases Lots 3, 4, 6, 7, 8, 10, 11 and 12 of Rancho Palos Verdes Extension. By Docket Book 1292, Page 586, dated July 21, 1958, Marvin H. Volk and Celia Volk conveyed the same property to Arizona Land Title and Trust Company under Trust Agreement Number 5433-T. From this trust, Arizona Land Title and Trust Company prepared, filed and recorded the subdivisions of Oracle Heights Estates, Lots 1 through 37, and Oracle Heights Estates,

133 . 125 Lots 38 through 66. Oracle Heights Estates, Lots 1 through 37, was recorded on March 17, 19 59, in the office of the Pima County Recorder at Book 13, Page 70 of Pima County Plats and Maps. Oracle Heights Estates, Lots 38 through 66, was recorded on October 5, 1959, in the office of the Pima County Recorder at Book 14, Page 19 of Pima County Plats and Maps. Examination of the plat of Oracle Heights Estates, Lots 38 through 66, reveals a clerical error in the omission of the street name for that portion of Caspian Drive north of Lot 60. Construing this parcel to be anything other than a dedication for Caspian Drive is logically inconsistent for the following two reasons. First, by the previous plat of Oracle Heights Estates, Lots 1 through 37, a portion of Caspian Drive is dedicated and so named. Geometrically, the parcel not identified on the plat of Oracle'Heights Estates, Lots 38 through 66,; abuts and lies parallel with the previa ously dedicated portion of Caspian Drive. Second, if the unnamed. parcel lying to the north of Lot 60 is not a dedication for Caspian Drive, then Lot 60 has no means of legal access. Lack of legal access is inconsistent with subdivision policy and common law. Oh June 14, 1962, Arizona Land Title and Trust Company under Trust 5344-T conveyed to Tucson Building Investment Corporation, the plaintiff's predecessor, a portion

134 126 of the property described as belonging to the plaintiff. This description began at the northeast corner of Lot 60 and ran easterly along an easterly projection of the north line of Lot 60. Technically, this legal description provided no means of access for Tucson Building Investment Corporation. The only finite access point common with a previously dedicated road was the common corner known either as the northeast corner of Lot 60 of Oracle Heights Estates or the southeast corner of Caspian Drive. This common corner with a dedicated right-of-way is of little practical value since it is simply a point and has no unit of length. On July 19, 1962, Arizona Land Title and Trust Company under Trust 5344-T reconveyed to Tucson Building Investment Corporation that portion conveyed on June 14, 1962; and, additionally, a strip 30 feet in width along the north together with the parcel previously dedicated by the plat of Oracle Heights Estates, Lots 38 through 66, for Caspian Drive. A metes and bounds legal description conveyed this property using the northeast corner of Lot 60 as the point of beginning. A common claim of ownership by Docket Book 1968, Page 100 and the plat of Oracle Heights Estates, Lots 38 through 66, is the basis of conflict between Mark A. Yorston and Pima County. It is difficult to ascertain the purpose in the reconveyance between Arizona Land Title and Trust Company

135 and Tucson Building and Investment Corporation less than one month after the original transaction; several theories are possible. The reason most probably is one which suggests the intent of providing a means of legal access for Tucson Building Investment Corporation. Through the writings of the parties involved, fee simple title passed to Tucson Building Investment Corporation for the 30 foot strip immediately north of the parcel conveyed by Docket Book 1954, Page 79 on June. 14, Since the parcel noted on the plat of Oracle Heights Estates, Lots 38 through 66, had been previously dedicated for Caspian Drive, title for this portion could not pass to Tucson Building Investment Corporation because the owner had no power to convey property previously dedicated to the public. Perhaps the confusion arising from the lack of a formal road name on this segment prompted Arizona Land Title" and Trust to include it in their legal description of July 19, 1962, thereby insuring attachment to a roadway dedicated and named by a previous plat. Whatever its reason for inclusion, the net effect was to create an overlap of title between Pima County and Mark A. Yorston. On December 14, 1962, in Docket Book 2029, Page 536, Tucson Building Investment Corporation conveyed to Robert M. and Shirley Norris the property described in Docket Book 1968, Page 100, recorded July 19, The

136 128 parcels conveyed were identical, and the actual legal description used almost the identical language as Docket Book 19 68, Page On July 16, 1968, Robert H. and Shirley Norris conveyed to Anton F. and Louise A. Rausell in Docket Book 3287, Page 270, the identical property as was conveyed by Docket Book 2029, Page 536. On February 21, 19 75, Anton F. Rausell, a widower, conveyed to Mark -A. Yorston in Docket Book 4549, Page 318 and 319, the identical property as was conveyed by Docket Book 3287, Page 270. All the previous Docket Book and Page references are recorded in the office of the Pima County Recorder. Conclusions 1. The subdivision, of Oracle Heights Estates, Book 14, Page 19 of Pima County Maps and Plats is a valid legal subdivision conforming to the requirements of Arizona Revised Statute By the recordation of the plat, the board of supervisors accepted the plat as reasonably conforming to legal requirements and endorsed or approved the plat. By the writing and details of the plat, streets within Oracle Heights Estates were made a part of a statutory dedication to the public as held in trust by Pima County. The fee simple owner, Arizona Land

137 Title and Trust Company, Trust 5344-T, of the subdivision held title to all property at the time of dedication; and, therefore, had the authority and capacity to dedicate the streets as shown on the plat. Arizona Revised Statute states that upon the filing of the map or plat, the fee to all streets, alleys, parks and other parcels of ground reserved therein to the use of the public, shall vest in the public. The property conveyed to the plaintiff was owned fee simple by Arizona Land Title and Trust Company, Trust 5344-T. The plaintiff's parcel was conveyed by a metes and bounds description after the recordation of Oracle Heights Estates, Lots 38 through 66. The plaintiff's legal description made specific reference to the plat of Oracle Heights Estates, Lots 38 through 66, by a call to the southeast corner of Lot 60. This descriptive call shows that the actual construction of the plaintiff's and his predecessor's deed was made with full knowledge of the contents of the plat of Oracle Heights Estates, Lots 38 through 66. By reason of seniority of the plat of Oracle Heights Estates, Lots 38 through 66, over Mark A. Yorston's

138 130 deed and his predecessor's deeds, any claim of title for this area must yield to Pima County. Arizona Land Title and Trust, Trust 5344-T, had no power to convey title to property which it had previously conveyed to the public through a statutory dedication.

139 CHAPTER 14 KLEINDALE BOULEVARD The Pima. County Highway Department caused surveys to be made and plans to be drawn for drainage and roadway improvements of Kleindale Boulevard between Richey Boulevard and Alvernon Boulevard during the latter part of The improvements for Kleindale consisted of a major storm drain, full pavement sections and curbs. FOr installation to be in accordance with recognized engineering practice, these improvements necessitated the full utilization of ' dedicated right^or-way for Kleindale Boulevard. The minimum platted, or dedicated, right-of-way for Kleindale Boulevard is 50 feet. Physical measurements between installed fences north and south of the traveled way for Kleindale Boulevard vary from 38 to 42 feet. Obviously, if the full 50 feet of right-of-way was to be used, fences either on the north or on the south, or possibly on both sides of Kleindale Boulevard, had to be moded. A full investigation of all available public and private records was made in an effort to evaluate the right- of-way problem on Kleindale Boulevard. After evaluation of the best available evidence and additional field surveys, 131

140 - 132 a right-of-way centerline was established, thereby fixing the limits of north and south right-of-way boundaries. From this establishment, the north right-of-way line of -. v.. - Kleindale Boulevard fell eight to ten feet north of several fences. To construct the planned improvements, the fences which encroached eight to ten feet were moved to the established north right-of-way line of Kleindale Boulevard. All fences which were encroaching into the established right-of-way for Kleindale Boulevard were moved under the direction of the Pima County Highway Department during January, With respect to the fences which were actually moved, the affected property owners have two options. First, they may accept the north right-of-way line of Kleindale Boulevard as established by the Pima County Highway Department? or, second, they may seek relief in the Superior Court by filing an action to quiet title or an action of inverse condemnation against Pima County. Documents and Plats which Affect Kleindale Boulevard Kleindale Boulevard was first deeded or dedicated to Pima County for roadway purposes on September 19, This deed was recorded in the office of the Pima County Recorder in Book 21, on Pages 577, 578, 579 of Deeds. This particular instrument dedicated a roadway 60 feet in width through Section 28, Township 13 South, Range 14 East. The

141 133 legal description, shown below, which describes the granted, quit claimed or dedicated right-of-way was a mixture of metes and bounds calls and United States Public Land sectional calls. This mixture of calls lends to alternate interpretations as to actual location. Whereas certain inhabitants of Road District Number One of Pima County, taxable therein for road purposes, have petitioned in writing the Board of Supervisors of Pima County, to lay out a new road therein, as set forth in their petition dated 30 of April, 1890, which said road is proposed to be located as follows to w i t : Commencing at a point on the section line between Sections 27 and 28, 1320 feet north of the corner to Sections 27, 28, 33, and 34 in Township 13 South, Range 14 East; thence, south 30 feet to a point; thence, due west through Section 28 to a.point in Section 28, 30 feet west of the section line between Section 28 and 29; thence, running north to a point 30 feet south of a point 30 feet west of the one-quarter section corner between Sections 2 8 and 29, Township 13 South, Range 14 East; thence, running due west through Section 29, 30, 25, and 26 to a point 30 feet south of the onequarter section corner between Sections 26 and 27, Township 13 South, Range 13 East; thence, north 60 feet; thence, east through Sections 26, 25, 30, and 29 extending into Section 28, 30 feet east of the section line between Sections 28 and 29; thence, south to a point 30 feet east of a point 30 feet north of the one-sixteenth section corner between Sections 28 and 29, Township 13 South, Range 14 East; thence, east through Section 28, to a point 30 feet due north of the. place of beginning; thence, south to the place of beginning, being parts of Sections 28, 29, 30, Township 13 South, Range 14 East and Sections 25 and 26, Township 13 South, Range 13 East, Gila and Salt River Base and Meridian.

142 134 Now, therefore, in consideration of the location and establishment of said road as above described, and of the benefits to accrue to us and each of us by such location, in the undersigned, owners, occupants and Claimants of land required for road purposes on the line of the foregoing designated route, hereby signify our approval of the said road, and do hereby consent thereto, and we do hereby grant, quit-claim and dedicate the belonging to us and each of us as far as the source be required for such road to the County of Pima, to that purpose and for the use of such road; and we hereby waive all claims for damages for and on account of the same. If the metes and bounds calls are used, the center- line of Kleindale Boulevard lies 1,320 feet north of the southeast section corner of Section 28. Therefore, the north right-of-way boundary would lie 1,350 feet from the southeast section corner of Section 28 or approximately 34 feet farther north of the line actually claimed by Pima County. An alternate interpretation from the United States Public Land sectional calls places the centerline of the 60 foot right-of-way at 1,303 feet o.r 1,308 feet from the southeast section corner of Section 28 as along the south one-sixteenth line of Section 28. By this interpretation, the line which controls the north right-of-way line of Kleindale Boulevard lies 1,333 feet or 1,338 feet north of the southeast section corner of Section 28. These lines are either three or eight feet farther north of the line claimed by Pima County.

143 135 The next recorded document adjacent to Kleindale. Boulevard was the subdivision plat of Lohrum Subdivision recorded August 29, 1916, in the office of the Pima County Recorder at Book 3, Page 54 of Pima County Plats and Maps. This subdivision plat dedicated 20 feet for what it called Third Street along its northern boundary, Third Street is synonymous with Kleindale Boulevard. Dimensionally, the north line of the subdivision of Lohrum falls 1,300 feet north of the southeast section corner of Section 28 or approximately three feet or eight feet south of the sectional south one-sixteenth line of Section 28. Following the recording of Lohrum by 13 years was the recording of a subdivision named Rillito Riverside Acres. Rillito Riverside Acres was recorded March 8, 1929, in the office of the Pima County Recorder at Book 5, Page 46 of Pima County Plats and Maps. This subdivision had as its south boundary Kleindale Boulevard for which it dedicated 30 feet. Rillito Riverside Acres dimensionally called the centerline of Kleindale Boulevard 1,320 feet south of the east quarter corner of Section 28. The north right-of-way " line for-kleindale Boulevard was then 30 feet north of this centerline. The plat of Rillito Riverside Acres fails to Show the amount of subdividable property between the east quarter corner of Section 28 and the north line of the previously platted Lohrum Subdivision was only 1,306 feet.

144 136 Therefore, the subdivision plat of Rillito Riverside Acres was in conflict with the September 19, 1890 deed for Kleindale Boulevard and the previously recorded plat of Lohrum Subdivision. From comparison' of the previously recorded instruments or plats, it was possible to postulate five separate and distinct positions for the centerline of Kleindale Boulevard. The first three positions arise from interpretation of the original September 19, 1890 deed. A fourth position was shown by the plat of Lohrum Subdivision, and the fifth position comes from the plat of Rillito Riverside Acres. To fully understand the problem with respect to the location of the true centerline of Kleindale Boulevard, it was necessary to analyze the various dimensions along the line between the east quarter corner of Section 28 and the southeast section corner of Section 28. The subdivision plat of Lohrum Subdivision platted 1,300 feet along the east line of Section 28 from the southeast section corner of Section 28 northerly. The plat of Rillito Riverside Acres platted 1,320 feet along the east line of Section 2 8 from the east quarter corner of Section 28 southerly. The total platted distance between the east quarter corner of Section 28 and the southeast section corner of Section 28 was 2,620 feet. The measured

145 137 distance between these two existing monuments was 2,606 feet. Therefore-, if each subdivision occupies its fully platted length, an overlap of 16 feet occurs between the Lohrum Subdivision centerline for Kleindale Boulevard and the Rillito Riverside Acres centerline for Kleindale Boulevard., From the comparison of record plat measurements, actual occupation and deed descriptions, the following positions for the intersection of Kleindale Boulevard and the east section line of Section 28 are possible. These positions are given in their chronologic order of appearance in the public record. First, on September 19, 1890, a deed of conveyance was recorded which described the center- line of Kleindale Boulevard as being 1,320 feet north of the southeast section corner of Section 28. Second and third, by an alternate interpretation of this September 19, 1890 deed, the centerline of Kleindale Boulevard would lie along the south one-sixteenth line of Section 28. These second and third positions are either 1,30 3 or 1,308 feet north of the southeast section corner of Section 28. Fourth, the subdivision plat of Lohrum Subdivision platted the centerline of Kleindale Boulevard 1,300 feet north of the southeast section corner of Section 28. Fifth, the subdivision plat of Rillito Riverside Acres indirectly platted the centerline of Kleindale Boulevard 1,2 86 feet north of

146 138 the southeast section corner of Section 28. From the previous, overlaps of from 15 to 34 feet were possible. Occupation along the north and south side of Kleindale Boulevard has taken place during the last 50 years. On the south side of Kleindale, the lines for the plat of Lohrum Subdivision control occupation. Fences and improvements constructed on the south of Kleindale Boulevard follow a straight line and occupy a position on the south right-of- way boundary for Kleindale Boulevard as shown by the plat of Lohrum Subdivision. On the north side of Kleindale Boulevard the plat of Rillito Riverside Acres appears to control occupation. A majority of the fences along the north side of Kleindale occupy a position indicated by the plat of Rillito Riverside Acres as the north right-of-way line of Kleindale Boulevard. The measured distance between the south right-of-way occupation of Rillito Riverside Acres and the north right-of-way occupation of Lohrum varies from a minimum of 38 feet to 46 feet. The theoretical platted right-of-way is 50 feet. The actual occupational overlap between the centerline of Kleindale Boulevard dedicated by the plat of Lohrum Subdivision and the centerline of Kleindale Boulevard dedicated by the plat of Rillito Riverside Acres was approximately ten feet. To install the contemplated right-of-way improvements on Kleindale Boulevard and to provide for minimum

147 public safety on a traveled right-of-way, a minimum right- 139 of-way width of 50 feet was necessary. The line which was chosen to control this 50 foot width of right-of-way for Kleindale Boulevard between Richey and Alvernon was the centerline dedicated by the plat of Lohrum Subdivision. This position was chosen over the other four positions because it was felt this line accomplished delineation of the necessary minimum amount of right-of-way with the least disruption to established usage along'kleindale Boulevard. It should be noted that other interpretations, which may be legally more defensible, were rejected since their promulgation would cause additional movement of fences to the north. Conclusions 1. The intent to create Kleindale Boulevard is expressly clear in a deed to Pima County recorded September 19, As per this deed, the appropriated width for Kleindale is 60 feet. At present, the absolute deed location for this 60 feet of right-of-way is not clear. Interpretation of calls for the right-of way description lend to two different locations. It should be noted this ambiguity does not defeat the intent to create Kleindale Boulevard nor does. it decrease the appropriate width.

148 140 The question of location did not invalidate this grant since a definite physical location was possible. Conflicts of location which arise from the interpretation of calls can be resolved through the rules of construction. Regardless of location, the following specific points should be considered with respect to this deed. A. The deed granting right-of-way for Kleindale Boulevard possesses all of the necessary characteristics for validity. It has been signed, sealed, delivered and recorded. B. A grant for right-of-way is a perpetual one and is not lost by either the passage of time or the lack of use. C. As stated by Thompson (.1961), when the width of a right-of-way has been definitely stated in the grant, the usage of right-of-way may be over the entire width granted. D. Thompson (1961) also states that a grant for right-of-way of a specific width does not restrict the grantee to the portion first constructed. At any time in the future, the grantee may change the roadway location to any part of the width specified in the original grant.

149 The chronologic order of various surveys is useful in resolving conflicts which arise from those same 141 surveys. McCullough and McCullough (1946) state that when two surveys are in conflict with one another, the senior takes precedent over the junior. This is usually held to be true unless the senior is proven to be false, erroneous or fraudulent. The survey of Lohrum Subdivision was performed on or before August 29, 1916'. The survey of Rillito Riverside Acres was performed on or before March 8, Therefore, in this case, the senior centerline of Kleindale Boulevard as dedicated by the plat of Lohrum Subdivision is superior to all other junior centerlines. A subdivision plat is generally regarded as creating several parcels of land by the same person or persons and by the same instrument. This is recognized as a simultaneous conveyance- Simultaneous conveyances have no junior or senior parties since all of the subsequent purchases act with reference to a particular subdivision plat. In the state of Arizona, a dedication of highway right-of-way is a conveyance of a fee simple estate from a grantor to the public in general - It is presumed that this conveyance, from the grantor to the public, takes place upon

150 recording the plat since delivery of a deed to the general public is cumbersome, In this instance, the passage of a fee simple estate by the dedication of subdivision streets does, in fact, create junior and senior parties. The public's right to subdivision streets is senior to all subsequent purchases of lots within the same subdivision. Skelton (19 30) states that the public takes no more property than the dedicator intended to grant, but all that was intended. If the subdivider had known of a deficiency, it is logical he would have taken some property off of the lots and left the street a certain width. The tendency is for all subdividers to make the streets of a minimum width so as to maximize the area of lots. For this reason, it is of paramount importance that the right-of-way dedicated for public streets be held superior and senior to individual ownership. When the September 19, 1890 deed was recorded, the public became the fee simple owner of Kleindale Boulevard. Brown (19 69) has shown that when a subdivider improperly subdivides property of which he has no title, he cannot convey title to the area improperly subdivided. A subsequent purchaser cannot receive title to the area improperly

151 143 subdivided. A subsequent purchaser cannot receive title to the area improperly subdivided unless the rights of adverse possession or prescription are operative. The rights of adverse possession or prescription are completely ineffective in this case since Thompson (1961) states that property held in trust for the public cannot be acquired by adverse possession or prescription. Once dedicated, granted or acquired, the public's title to highway right- of-way can only be relinquished through a proceedings authorized by law. Therefore, the subdivider of Rillito Riverside Acres incorrectly subdivided property which belonged fee simple to the public. He could not convey title to property he did not own.

152 CHAPTER 15 GREEN VALLEY DESERT MEADOWS NUMBER ONE On April 22, 19 70, the Superior Court granted to the state of Arizona fee title to certain properties by right of eminent domain after just compensation. The properties so granted by Final Order of Condemnation Number (Eminent Domain) were to be used for the construction of Interstate Highway 19. Specifically, the property described and recorded in the office of the Pima County Recorder in Docket Book 3741, Pages 253 through 263, was used for additional right-of-way for slopes in the construction of the Continental Interchange. On February 28, 1972, Fairfield Green Valley recorded a subdivision plat known as Green Valley Desert Meadows Number One, recorded in the office of the Pima County Recorder at Book 22, Page 65 of Pima County Plats and Maps. On November 23, 1971, Lawyers Title of Arizona issued a title report describing the subdivision as all the land shown on the tentative plat prepared by a local engineering firm with the exception of any portion lying within the Tucson/Nogales Highway/ Interstate Highway 19. However, the Lawyers Title detailed list of exceptions failed to list Docket Book 3741, 144

153 145 Pages 253 through 263z the Final Order of Condemnation Number Geometrically, the Final Order of Condemnation Number and the subdivision plat of Desert Meadows Number One overlap by 3667 square feet. For the state of Arizona, this overlap occurs in an area designated as right- of-way for slopes. For Green Valley Desert Meadows Number One, the overlap partially obliterates an alley and a small portion of Lot 49. Authority for the Right of the State of Arizona Under the authority of Arizona Revised Statute , the right of eminent domain may be exercised by the state, county, city, town or village for the purpose of roads, streets, alleys and other public uses to benefit the public. This specific case meets the prerequisites detailed in Arizona Revised Statute for legal taking by condemnation; i.e., (1) the use to which the property was applied was a use authorized by law, and (2) the taking was necessary to such use. According to Arizona Revised Statute , the estate to which the state of Arizona is entitled under the Final Order of Condemnation Number is fee simple. To validate the judgment of the Superior Court, Arizona Revised Statute makes it mandatory that the decision of the

154 146 Court, affecting title to real property,- be recorded in the office of the county recorder of the county in which the property is located. With reference to the previous list of statutes, (1) the state of Arizona has the authority to exercise the power of eminent domain, (2) the taking was necessary and (3) the judgment of the court was properly recorded in the office of the Pima County Recorder, it, therefore, appears obvious that the state of Arizona has acquired an ungues^ tionable fee simple right to the property described in the Final Order of Condemnation Number Conclusions / 1. Eminent domain is the power of the government to acquire private property for public use. This right predates constitutions, statutory and common laws; it is the superior right of the sovereign over its citizens to take property regardless of the origin of title. This power is absolute; however, in the United States, it cannot be exercised without due process of law and just compensation. The Fifth Amendment to the Constitution of the United States of America states: "No person Shall be deprived of life, liberty or property without due process of law; nor shall private property be taken without just compensation." In this case, the act of condemnation

155 exercised the state's right to use the power of eminent domain for a public purpose. The person or persons deprived of property were given due process of law before the Arizona Superior Court. By the decree of the Superior Court, the person or persons being damaged by the process of eminent domain received just compensation in the form of money damages. Clearly, the power of eminent domain used by the state of Arizona for Interstate Highway 19 was proper and carried out within the constitutional framework set up for its use. The construction of the Continental Interchange has two immediate consequences. First, the physical function of the alley used as an alternate means on ingress and egress for property owners of Green Valley Desert Meadows Number One and also used by service vehicles-will be obstructed. Second, the present policy of the Arizona Department of Transportation does not allow utilities in areas designated as right-of-way for slopes; therefore, underground electric, telephone, gas and utility lines installed in the condemned portion of the subsequently dedicated alley must be removed. The Pima County Highway Department, exercising its statutory authority to review and approve subdivision

156 plans failed, as had all other parties, to discover the conflict. 148

157 CHAPTER 16 CASE OF LAWRENCE VS. COUNTY OF PIMA In the case of Richard and Beverly Lawrence, Plaintiffs, versus County of Pima, A Body Politic of the State of Arizona, Defendants, the action brought by Richard and Beverly Lawrence was to quiet title to a certain portion of real property known as the east 25 feet of the west 75 feet of Lot 72 of Section 18, Township 15 South, Range 13 East, Gila and Salt River Base and Meridian, Pima County, Arizona. Cause of Action On June 17, 19 59, in Docket Book 1467, Page 503, the United States of America, under the authority of an Act of Congress, approved June 1, 1938, and entitled "An Act to Provide the Purchase of Public Lands for Homes and Other Sites," granted to Geldo C. Federico, Lot. 72 of Section 18, Township 15 South, Range 13 East, Gila and Salt River Base and Meridian. This particular patent was subject to a right- of-way 50 feet in width for roadway and utility purposes along the north, east and west boundaries of Lot 72. '149

158 150 Lot 72 of Section 18, Township 15 South, Range 13 East was subsequently granted by deed to Dino DeConcini who granted to Pima County in the form of a gift deed the west 75 feet of Lot 72 to be used for roadway purposes. Dino DeConcini signed this, gift deed January 17, 1964, before a Notary Public. Pima County did not record this gift deed in the office of the Pima County Recorder until April 7, Between this time, Dino DeConcini conveyed Lot 72 to Lewis C. and Arlene M. Anderson on September 29, 1965 as recorded in Docket Book 2588, Page 6. Lewis C. and Arlene M. Anderson entered into a contract for sale of real estate to convey Lot 72 to Richard and Beverly Lawrence on March 1, This contract was recorded in the office of the Pima County Recorder in Docket Book 3755, Pages 651 through 655 prior to Pima County recording its gift deed from Dj.no DeConcini. The basis of this action lies in the fact that Pima County did hot record a gift deed, an instrument for the conveyance of real property, granted by Dino DeConcini on January 17, 1964 until April 7, During this time, the fee title to Lot 72 of Section 18 passed from Dino DeConcini to Lewis C. and Arlene M. Anderson and, subsequently, to the plaintiffs, Richard and Beverly Lawrence. The gift deed signed on January 17, 1964 was not made a matter of public record until April 7, 19 72; therefore.

159 151 the plaintiffs in this action entered into a contract forsale of real estate on March 1, 19 70, unaware of a possible cloud of title against the east 25 feet of the west 75 feet of Lot 72., Title 12, Courts and Civil Proceedings, Article 1, Action to Quiet Title pursuant to Arizona Revised Statute , states that an action to determine and quiet title to real property may be brought by anyone having or claiming an interest. By the recording of the gift deed from Dino DeConcini, Pima County is asserting its claim of interest in the subject property. Richard and Beverly Lawrence as plaintiffs in the action to quiet title.are seeking to remove the adverse claim or cloud of title on the subject property. Conclusions 1. Ownership of land consists of (a) proper written title with the right of possession, or.(b) actual possession with the right to acquire written title as a result of a lawful unwritten conveyance. The parties involved in this action acted on one or both Of these principles of ownership. The defendants, Pima County, assumed that the receipt Of the gift deed from Dino DeConcini was a good, written title with the right of possession. To this date, Pima County has not exerted a physical right of

160 possession, by construction of a road over the disputed portion. The plaintiffs, Richard and Beverly Lawrence, assumed the receipt of the contract of sale from Lewis C. and Arlene M. Anderson was proper, written title With the right of possession. Richard and Beverly Lawrence are also the actual physical possessors on this date. The deeds filed by both parties in this case serve not as a proof of ownership, but as evidence of ownership. Common or customary practice is to place deeds or documents of ownership in the public record, thereby making a registration of evidence Of land ownership. Pima County failed to place its evidence of ownership in the public record until a period of seven years and four months had passed. Researching Arizona statutory law, it is found that Arizona Revised Statute specifically states that no instrument affecting real property is valid against subsequent purchasers unless recorded as provided by law in the office of the county recorder of the county in which the property is located. Although the intent to dedicate the subject property between Dino DeConcini and Pima County was clear, the force of said dedication was invalid because of Pima County's failure to record the instrument of

161 153 transfer. It would be inconsistent with statutory law for this instrument to be valid against the subsequent purchasers, Richard and Beverly Lawrence. I

162 CHAPTER 17 SUMMARY OF CASES AND'CONCLUSIONS As has been stated previously, the listed cases or possible cases involve highway rights-of-way their location, their existence and their passage. The cases of Lawrence versus County of Pima and Yorsfon versus County of Pima and the possible case of Green Valley Desert Meadows Number One all involve questions of the actual existence of highway right-of-way. In Lawrence versus County of Pima, it was shown by Statute that an unrecorded deed is ineffective against subsequent purchases. Yorston versus County of Pima points out that areas previously dedicated to the public for highways cannot be conveyed to a private party by the same grantor. The possible case of Green Valley Desert Meadows Number One has shown that real property, once condemned by the state cannot be appropriated for any other use. The cases of Friedenberg versus County of Pima, County of Pima versus Neville, County of Pima versus Pioneer Title and Trust Company and the possible case of Kleindale Boulevard all involve the correct location of highway right-of-way. The final determination of boundary locations by the author for these cases was based upon the author1s technical

163 155 conclusions which are at the end of each chapter. The case of County of Pima versus 1600 River Road litigated the obstruction of a public right-of-way since a highway does not serve^its intended purpose unless it is passable. The cases as described in Chapters 10, 11, 12, 13 and 16 have all been before the Superior Court of the State of Arizona. Most action taken to date has been either temporary hearings for restraining orders or other pretrial motions. At this time, only one case has been through a full Superior Court trial. The expected verdict for this case will not be rendered for 60 days, and then is subject to appeal. Chapters 14 and 15 are discussions of boundary conflicts which are not before the courts at this time. The. conclusions drawn at the end of each Chapter are the Opinions of the author based upon his interpretation of the technical merits of each case or possible case. The author advises any surveyor or engineer who finds himself involved in a boundary dispute to prepare a written document similar to Chapters 10 through 16 itemizing in great detail: (1) the cause of the conflict;. (2) the history of various surveys relating to the conflict; (3) the documents relating to the conflict; (4) the technical principles supporting the actual boundary location, the statutory authority relating to or supporting the boundary location; and, (5) the common law supporting the boundary location.

164 156 This written documentation is very important for three reasons. First, if a surveyor or engineer puts his thoughts in writing he must thoroughly understand his subject. This helps prepare him for the testimony he will give as an expert witness and the key to being a good expert witness is adequate preparation. Second, the attorney presenting the. case must also have a complete understanding of the facts. It has been the author's experience that the attorney will have a more complete understanding of the pertinent facts and points of the case if he can read them and refer to them in a prepared text. Third, the long and tedious oral testimony of an expert witness can be simplified if the written comments of an expert witness, concerning the facts and points of a particular case, are admitted as an exhibit for clarification of testimony which the court may later refer to in making a decision.

165 SELECTED BIBLIOGRAPHY Arizona Revised Statutes, Annotated. West Publishing Company, St. Paul, Minnesota: Brainin vs. New York. New York Supplement, Volume 120. St. Paul, Minnesota: West Publishing Company, 1910, p Brown, Curtis M. Boundary Control and Legal Principles. New York: Wiley and Sons, Inc., Brown, Curtis M- and Winfield H. Eldridge. Evidence and Procedures for Boundary Location. New York: Wiley and Sons, Inc., Cataldo, Bernard F., Frederick G. Kempin, Jr., John M. Stockton and Charles M. Weber. Introduction, to Law and the Legal Process. New York; Wiley and Sons, Inc.,, Clark, Frank E. A Treatise on the Law of Surveying and Boundaries, 3rd edition. Indianapolis: The Bobbs- Mefrill Company, Day, James W. "The Validation of Erroneously Located Boundaries by Adverse Possession and Related Doctrines." Surveying and Mapping, XXXIII(1):41-55, March Dean, Darrell R. and John G. McEntyre. "Surveyor's Guide to the Use of a Law Library." Surveying and Mapping, XXXV(3): , September Dunham, Clarence and Robert D. Young. Contracts, Specifications and Law for Engineers, 2nd edition. New York: McGraw-Hill, Manual of Instruction for the Survey of the Public Lands of the United States 19 73, Bureau of Land Management Technical Bulletin 6. Washington, D.C.: Department of the Interior, United States Government Printing Office,

166 158 McCullough, Conde B. and John R. McCullough. The Engineer at Law, Vols. I and II. Iowa City, Iowa: The Collegiate Press, Inc., Niles, Russell D. and Elmer M. Million. Walsh and Niles Cases on the Law of Property, Vols. I, II, III. Indianapolis: The Bobbs-Merrill Company, Pima County Highway Department, Arizona. Pima County Recorder's Office, Arizona. Quinn vs. Baage. Iowa Reports, Volume Iowa City: T. H. Flood and Co., 1909, p Rabin, Edward H. Fundamentals of Modern Real Property Law. New York: The Foundation Press, Inc., Skelton, Ray H. The Legal Elements of Boundaries and Adjacent Properties. Indianapolis: The Bobbs-Merrill Company, Spencer vs. Levy. Southwestern Reporter, Volume 173. St. Paul, Minnesota: West Publishing Company, 1915, p Thompson, George W. Thompson on Real Property, Vol. 3. Indianapolis: The Bobbs-Merrill Company, Inc., 1961, pp Wait, John Cassan. The Law of Operations Preliminary to Construction in Engineering and Architecture, 1st edition. New York: Wiley and Sons, Inc., Walsh, William F. A Treatise on the Law of Property, 2nd edition. New York: Baker, Voorhis and Company, 1947.

167