Beck v. Neville

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STEVEN P. BECK, et al., Plaintiffs/Appellees,

v.

RICHARD NEVILLE, et al., Defendants/Appellants.

No. 1 CA-CV 21-0197
FILED 4-26-2022

Appeal from the Superior Court in Maricopa County
No. CV2019-013786
The Honorable Pamela S. Gates, Judge

REVERSED AND REMANDED

COUNSEL

Combs Law Group PC, Phoenix
By Christopher A. Combs, Darlene Z. Twiss
Counsel for Defendants/Appellants

Tully Bailey LLP, Phoenix
By Stephen W. Tully
Co-Counsel for Plaintiffs/Appellees

Hinshaw & Culbertson LLP, Phoenix
By Bradley L. Dunn
Co-Counsel for Plaintiffs/Appellees
 BECK, et al. v. NEVILLE, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Randall M. Howe joined. Judge James B. Morse Jr.
dissented.

C A M P B E L L, Judge:

¶1 Richard and September Neville challenge the superior court’s
grant of summary judgment in a property boundary dispute with their
neighbors Steven and Lesli Beck. For the following reasons, we reverse and
remand for further proceedings.

BACKGROUND

¶2 The Nevilles and Becks purchased neighboring properties in
1998 and 2000, respectively. The Nevilles’ property includes a parking
space on the north side of their home. A gravel driveway leads from the
residential street to the parking space.

¶3 In 2004, contractors for the Becks installed concrete curbing
on the north side of the gravel driveway. Because the curbing deviates from
the recorded property line, the Nevilles’ gravel driveway covers
approximately 135 square feet of land held in record title by the Becks (the
disputed land).

¶4 Fifteen years after installation of the concrete curbing,
contractors informed the Becks that they needed to extend drainage pipes
on their property, necessitating the removal of the curbing. When the Becks
notified the Nevilles of the planned work, the Nevilles asserted that they
owned the disputed land via adverse possession or boundary by
acquiescence.

¶5 The Becks sued to quiet title to the disputed land shortly
thereafter, and the Nevilles counterclaimed. On cross-motions for summary
judgment, the superior court ruled in favor of the Becks and awarded them
attorneys’ fees under A.R.S. § 12-1103(B). This appeal followed.

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Decision of the Court

DISCUSSION

¶6 In reviewing a grant of summary judgment, we view the facts
and the reasonable inferences to be drawn from those facts in the light most
favorable to the non-moving party. Normandin v. Encanto Adventures, LLC,
246 Ariz. 458, 460, ¶ 9 (2019). “We determine de novo whether any genuine
issues of material fact exist and whether the [superior] court correctly
applied the law.” Diaz v. Phoenix Lubrication Service, Inc., 224 Ariz. 335, 338
(App. 2010). Summary judgment is appropriate “if the moving party shows
that there is no genuine dispute as to any material fact and the moving party
is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(a).
Conversely, summary judgment is inappropriate if “the facts, even if
undisputed, would allow reasonable minds to differ.” Nelson v. Phoenix
Resort Corp., 181 Ariz. 188, 191 (App. 1994).

I. Adverse Possession

¶7 Asserting the concrete curbing demarcated the parties’
respective properties, the Nevilles contend that they adversely possessed
the disputed land by “continuously maintain[ing] and us[ing] [it] within
their gravel driveway to the exclusion of others” since 2004. While they
concede they did not place the curbing and gravel on which their claim
relies, they argue that the curbing has defined the northern boundary of the
driveway since its installation.

¶8 Adverse possession is “an actual and visible appropriation of
the land, commenced and continued under a claim of right inconsistent
with and hostile to the claim of another.” A.R.S. § 12-521(A)(1). To
successfully claim title by adverse possession, a claimant must demonstrate
“that the adverse possession was actual, open and notorious, hostile, under
a claim of right, and [] exclusive and continuous for ten years.” Stat-o-matic
Ret. Fund v. Assistance League of Yuma, 189 Ariz. 221, 222 (App. 1997); see also
A.R.S. § 12-526(A). Whether these elements have been met generally
presents questions of fact based on the circumstances of each case. Sabino
Town & Country Estates Ass’n v. Carr, 186 Ariz. 146, 149 (App. 1996).
Adverse possession claims are disfavored and must be proved by clear and
convincing evidence. Stat-o-matic, 189 Ariz. at 222; Sabino, 186 Ariz. at 149.

¶9 To satisfy the elements of open and notorious, a claimant
must show he engaged in conduct that “put the true owner on notice that
his land is held under an adverse claim of ownership.” Knapp v. Wise, 122
Ariz. 327, 329 (App. 1979). While an “enclosure of land” by itself may
provide the requisite notice, id., the curbing at issue did not surround the

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Decision of the Court

disputed land or otherwise bar the Becks from accessing it. See State v. Lewis,
236 Ariz. 336, 346, ¶ 42 (App. 2014) (citing dictionary definitions of
“enclose”―“[t]o surround on all sides; close in” and “[t]o fence in so as to
prevent common use”) (citation omitted). Moreover, because the Becks
installed the curbing, the Nevilles cannot rely on its mere installation as
evidence they placed the Becks on notice of their adverse claim of
ownership. Accordingly, to survive the Becks’ motion for summary
judgment, the Nevilles had to put forward evidence that they engaged in
overt acts of ownership sufficient to put a reasonable property owner on
notice of their adverse possession claim.

¶10 In support of their respective motions for summary judgment,
the parties submitted separate and conflicting declarations. The Nevilles
averred that: (1) they “believed” the concrete curbing delineated the
boundary line between the parties’ properties since 2004; (2) “[o]n several
occasions since” 2004, the Becks and their guests have attempted to park
vehicles “on the Neville Driveway,” and on each “known such occasion,”
Richard Neville “ordered” the Becks and their guests to remove their
vehicles; (3) on one occasion, Steven Beck expressly asked for permission to
park a vehicle “on the Neville Driveway” and Richard Neville refused his
request; and (4) as part of landscaping work completed in 2014, the Becks
removed the original concrete curbing and installed new curbing “in the
same exact location.”

¶11 In contravening declarations, the Becks avowed that: (1) they
informed the Nevilles “of their non-ownership” of the disputed land in
2004, when the concrete curbing was incorrectly installed; (2) they have
used the disputed land “on a regular basis without interference from the
Nevilles” and have “parked cars” on the disputed land “on occasion”; (3)
on several occasions, their guests have parked vehicles “on the [d]isputed
[p]roperty without interference from the Nevilles”; and (4) their yard
maintenance worker has regularly used the disputed land to access other
portions of the Becks’ property.

¶12 The dissent correctly notes that the disputed land comprises
only a portion of the Nevilles’ gravel driveway, and therefore the Nevilles’
efforts to wholly exclude the Becks from parking on the gravel driveway
does not, by itself, demonstrate that the Nevilles specifically excluded the
Becks from the narrow strip that constitutes the disputed land. Importantly,
however, the Becks unambiguously avowed that both they and their guests
parked vehicles on the disputed land. Because the parties’ competing
declarations presented disputed facts, summary judgment was improper
on the Nevilles’ adverse possession claim.

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 BECK, et al. v. NEVILLE, et al.
Decision of the Court

II. Boundary by Acquiescence

¶13 Generally, a boundary can arise when adjoining landowners
occupy their respective properties up to a certain, mutually recognized, and
acquiesced-to line for a long period of time. 82 Am. Jur. Proof of Facts 3d
227, § 1 (2005). To prove a boundary by acquiescence, the claimant must
establish “(1) occupation or possession of property up to a clearly defined
line, (2) mutual acquiescence by the adjoining landowners in that line as the
dividing line between their properties, and (3) continued acquiescence for
a long period of time.” Mealey v. Arndt, 206 Ariz. 218, 221, ¶ 13 (App. 2003).

¶14 The Becks contend the Nevilles cannot prevail on their
boundary by acquiescence claim because “[t]he parties were always aware
the curbing was not on the property line.” The Becks cite dicta from a
footnote in Mealey to argue that a “defendant can always defeat the claim
of boundary by acquiescence by affirmatively proving that the location of
the true boundary was known.” 206 Ariz. at 221, ¶ 13 n.2. But they did not
show, as a matter of law, that the true boundary was known. Instead, they
only presented evidence that the Nevilles were aware of the recorded
property line in 1998, six years before the curbing was installed. The Becks
cite no authority suggesting the Nevilles were obligated to determine
whether the later-installed curbing aligned with the recorded property line.
Cf. Berryhill v. Moore, 180 Ariz. 77, 82–83 (App. 1994) (mistake of fact by the
claiming party does not defeat an adverse possession claim).

¶15 The Becks also contend that the curbing “does not meet the
requirements for creating a boundary line sufficient to establish boundary
by acquiescence,” noting the superior court’s finding that it “falls far short
of creating a boundary line identified with certainty.” Arizona law only
requires that the purported boundary be “definite, visible, and clearly
marked.” Mealey, 206 Ariz. at 222, ¶ 15. Photographs offered by both parties
suggests the curbing could be all three. The Becks insist it “was and is for
decorative purposes only,” but the Nevilles presented evidence suggesting
that the curbing visually defined the northern boundary of the gravel
driveway leading to their gate.

¶16 The Becks go on to assert that the Nevilles presented no
evidence to show they occupied the property up to the curbing line. Again,
the Nevilles presented evidence that they (1) excluded the Becks from using
the disputed land at various times and (2) continuously used the disputed
land for parking as part of their gravel driveway. The Becks contend
otherwise, but that disputed fact is for the trier of fact to resolve.

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Decision of the Court

Accordingly, summary judgment was improper on the Nevilles’ boundary
by acquiescence claim.

¶17 The dissent implies that a boundary cannot form by
acquiescence unless it protrudes from the ground. In support of this
proposition, it quotes Benjamin Franklin on hedges, Robert Frost on fences,
and a collection of cases cited in Mealey. Good fences may make good
neighbors, but good cases, not good quotes, make good law.1

¶18 Franklin’s and Frost’s musings on fences and hedges tell us
little about whether a boundary may be formed by a fish house on a
seashore, a trail between everchanging rockpiles, an aisle within an
orchard, or even a fence hidden inside a hedge—the boundaries that were
at issue in the cases cited in Mealey. 206 Ariz. at 222, ¶ 16; see also Calthorpe
v. Abrahamson, 441 A.2d 284, 290 (Me. 1982) (“The erection of a fishhouse on
the seashore simply does not indicate where the boundary was meant to
be.”); Manz v. Bohara, 367 N.W.2d 743, 748 (N.D. 1985) (holding trail
between three rock piles too uncertain as boundary because one rock pile
had been removed, other piles were continually widening, and trail
regularly “move[d] from one location to another within those widths”);
Monroe v. Harper, 619 P.2d 323, 325 (Utah 1980) (“The property here has
trees within the disputed strip of land, but not on the supposed
boundary.”); Platt v. Martinez, 563 P.2d 586, 587 (N.M. 1977) (holding fence
could not serve as boundary because it could not be seen from adjacent
landowner’s side “without ‘crawling through the brush’”). The boundaries
in these cases failed not because they lacked protruding markers like fences
or hedges, but because the boundaries were not lines at all, were not
constant, or were not clearly visible.

¶19 Nothing in the dissent’s cited cases suggests that a tangible
line in or on the ground cannot form a boundary by acquiescence if it is
clear, visible, and enduring. See also Mealey, 206 Ariz. at 222, ¶ 15 (“[L]ine
must be certain, well defined, and in some fashion physically designated upon
the ground.”) (internal quotation marks omitted and emphasis added). In
fact, the gravel driveway in Monroe fell short not because of its lack of
protrusion, but rather because it “parallel[ed] the disputed boundary but
d[id] not mark it.” 619 P.2d at 325. And the court in Dowley v. Morency
affirmed the trial court’s recognition of an on-ground boundary, holding

1 As Franklin himself said, “Well done is better than well said.”
Benjamin Franklin, Poor Richard Improved, 1737 (B. Franklin 1737),
https://founders.archives.gov/documents/Franklin/01-02-02-0028.

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 BECK, et al. v. NEVILLE, et al.
Decision of the Court

only that “the mere cutting of grass” did not prove a boundary contrary to
the one established by extending a paint line that the parties agreed marked
another portion of the boundary. 737 A.2d 1061, 1065–66, ¶¶ 4, 10–17 (Me.
1999).

¶20 In sum, good neighbors can agree to boundaries without
fences or hedges. After all, even Robert Frost appeared capable of staying
on one side of a line on the ground.2

III. Attorneys’ Fees on Appeal

¶21 Both sides request their attorneys’ fees incurred in this appeal
under A.R.S. § 12-1103(B), which authorizes an award to the prevailing
party in a quiet title action if certain prerequisites are met. Cook v. Grebe, 245
Ariz. 367, 369, ¶ 5 (App. 2018). Neither side has prevailed on its quiet title
claim at this stage of the litigation. We therefore decline to award attorneys’
fees.

CONCLUSION

¶22 We reverse the grant of summary judgment, vacate the
associated attorneys’ fee award, and remand for further proceedings.

M O R S E, Judge, dissenting:

¶23 I respectfully dissent. To claim property via adverse
possession, one must make "an actual and visible appropriation of the land,
commenced and continued under a claim of right inconsistent with and
hostile to the claim of another." A.R.S. § 12-521(A)(1). Thus, the adverse
possessor must possess the disputed land in an "actual, open and notorious,
hostile," and "exclusive and continuous" manner for ten years. Stat-o-matic
Ret. Fund v. Assistance League of Yuma, 189 Ariz. 221, 222 (App. 1997). The
superior court correctly granted summary judgment to the Becks because
the Nevilles do not allege facts sufficient to meet this threshold. First,

2 “The middle of the road is where the white line is―and that’s the
worst place to drive.” William Safire, Safire’s Political Dictionary 248 (5th
ed. 2008) (quoting Robert Frost).

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Morse, J., dissenting
because the Nevilles did not place the pavers on the Becks' property they
cannot rely on the curbing to show they did anything to claim ownership
of the disputed land. Second, the Nevilles never allege that they laid gravel
on the driveway or made any visible improvements to the Becks' property
on the driveway consistent with claimed ownership. Cf. Higginbotham v.
Kuehn, 102 Ariz. 37, 38-39 (1967) (affirming adverse possession when
plaintiff tore down an old fence, installed a new "hogwire fence" along the
disputed line, and completed various actual and visible acts on the land);
Inch v. McPherson, 176 Ariz. 132, 134-35 (App. 1992) (affirming adverse
possession where adverse possessors "laid down gravel for a driveway"
from their house to the hedge and "regularly parked their car" on that
driveway).

¶24 Instead of alleging they did anything to change the boundary
or alter the property consistent with their claim of ownership, the Nevilles
rely on three allegations. First, they claim they prevented the Becks from
parking on the driveway. Second, the Nevilles avowed that they parked
vehicles on the driveway. Third, they claim they "maintained" the entire
driveway, including the narrow strip of disputed property. These
assertions fail to raise a material point of disputed fact necessary to defeat
summary judgment.

¶25 The Nevilles' claims that they ejected the Becks from the
driveway, and that they used the driveway, do not demonstrate any open
and notorious act hostile to the Becks' claim of ownership of the narrow
strip of land along the driveway's edge. Nearly all of the driveway is
indisputably the Nevilles' property and excluding the Becks from parking
on the driveway is not the same as excluding them from the edge of the
driveway that constitutes the disputed land. The Nevilles make no
allegation, and there is nothing in the record, to show they specifically
sought to exclude the Becks from the disputed land. Absent such an
assertion, telling the Becks they cannot park on the driveway is not a
material fact sufficient to defeat summary judgment. See Knapp v. Wise, 122
Ariz. 327, 329 (App. 1979) (stating the "question" in adverse-possession
cases is whether the "acts of possession" are sufficient to "put the true owner
on notice that his land is held under an adverse claim of ownership").

¶26 The majority notes a factual inconsistency about where the
Becks parked their cars (the driveway or the disputed land). Supra ¶ 12.
But such dispute is immaterial when the Nevilles fail to allege facts showing
they put the Becks on notice by openly, notoriously, and exclusively
claiming possession of the narrow strip of disputed land. Knapp, 122 Ariz.
at 329; see also Orme Sch. v. Reeves, 166 Ariz. 301, 311 (1990) ("[I]t would
effectively abrogate the summary judgment rule to hold that the motion

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 BECK, et al. v. NEVILLE, et al.
Morse, J., dissenting
should be denied simply on the speculation that . . . some dispute over
irrelevant or immaterial facts might blossom into a real controversy in the
midst of trial.").

¶27 Moreover, the Nevilles' allegation that they "maintained" the
driveway is not supported by any admissible evidence presented at
summary judgment. And, even if they had made such a claim in their
declarations, a vague claim of maintaining property does not provide
evidence of a claim to ownership hostile to the Becks' claim and cannot be
sufficient to put the Becks on notice that they might lose their property.
Knapp, 122 Ariz. at 329; see also Badia v. City of Casa Grande, 195 Ariz. 349,
357, ¶ 29 (App. 1999) ("Sheer speculation is insufficient . . . to defeat
summary judgment.").

¶28 The Nevilles fare no better with boundary by acquiescence
because the curbing does not define the Neville-Beck property line with
sufficient certainty. See Mealey v. Arndt, 206 Ariz. 218, 222, ¶ 15 (App. 2003)
("A party cannot be said to acquiesce in a boundary unless the boundary
can be identified with certainty."). Benjamin Franklin wrote "[l]ove your
neighbor; yet don't pull down your Hedge,"3 and Robert Frost suggests that
"[g]ood fences make good neighbors."4 But the Neville-Beck property line
lacks either fences or hedges. See Mealey, 206 Ariz. at 222, ¶ 15 (collecting
cases where boundary marked by fences, monuments, roadways, or
buildings); see also Dowley v. Morency, 737 A.2d 1061, 1067, ¶ 16 (Me. 1999)
(holding "mere cutting of grass is insufficient to produce a visible line of
occupation"). The majority posits that landowners may agree that a painted
line marks a property boundary. Supra ¶ 19; see Dowley, 737 A.2d at 1066,
¶ 10 ("There is also no dispute that the [orange paint] blaze line marks the
common boundary . . . ."). But the majority fails to explain why that matters.
In Dowley, rather than relying on an agreed upon painted boundary, the
court rejected a claim for boundary by acquiescence at the unpainted
border, noting the lack of "any other monument, fence, or the like serving
as indicia of a line of occupation." 737 A.2d at 1067, ¶ 17.

¶29 Ultimately, even if a painted line or line of pavers can mark a
property line in Arizona, the Nevilles fail to establish "mutual
acquiescence" in the claimed boundary. See Mealey, 206 Ariz. at 221, ¶ 13.
To the contrary, the Becks asserted that the true boundary line was known.
See Argyle v. Jones, 118 P.3d 301, 305, ¶ 15 (Utah Ct. App. 2005) (identifying

3 Benjamin Franklin, Poor Richard Improved, 1754 (B. Franklin & D. Hall
1754), https://founders.archives.gov/documents/Franklin/01-05-02-
0051.
4 Robert Frost, Mending Wall, in North of Boston (1914).

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Morse, J., dissenting
factors inconsistent with acquiescence such as contact, "however minimal,"
and "knowledge of the true boundary"). And the record lacks any evidence
from which a jury could infer that the Becks acquiesced to their landscaping
feature becoming the new property line. See Mealey, 206 Ariz. at 222, ¶ 16
(noting case in which an "orchard and gravel driveway" did not support
boundary by acquiescence (citing Monroe v. Harper, 619 P.2d 323, 324-25
(Utah 1980)); see also McGlothlin v. Livingston, 276 P.3d 1042, 1049, ¶¶ 28-30
(Okla. Civ. App. 2011) (concluding no boundary by acquiescence when
landowner "maintained the fence to contain their cattle and not to establish
a boundary").

¶30 For the foregoing reasons, I agree with the superior court that
the Nevilles presented insufficient evidence to support a claim for adverse
possession or boundary by acquiescence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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