Wacker v. Price

PHELPS, Justice

(specially concurring).

I concur in the result of the opinion of Justice Stanford in this matter but desire to more fully state my reasons therefor.

So far as the evidence in this case discloses there was never made an actual survey of Grand Avenue Addition, and certainly none that a survey was ever made with reference to a governmental monument at McDowell Road and 15th Avenue. The map or plat thereof as filed in the office of the county recorder on May 28, 1887 is shown to have been prepared by a draughtsman. Later, on September 18, 1888, another map or plat of said subdivision was recorded. Both maps or plats are *108referred to in the evidence as official plats although plaintiff admits that the latter plat is the official plat. The legend indicates that the plats are drawn to a scale of 300 feet to the inch. The width of lots and streets are not designated in the plat. It seems to be agreed by all the parties to this litigation, however, that the lots were intended as 50-foot lots and the streets 60 feet in width.

The court will take judicial notice of the fact that at the time the Grand Avenue Subdivision was platted the limits of the city of Phoenix extended west only to what is now Seventh Avenue between Jackson and Van Burén Streets known as the original townsite of the city of Phoenix, and all of the territory now embraced in Grand Avenue Subdivision north and east of Grand Avenue was desert, covered in large measure by mesquite. This condition obtained, according to the testimony of the witness Shaughnessey in this case, until as late as 1911 and 15th Avenue had not been opened at that time.

Apparently when lots were begun to be sold and homes constructed thereon it was necessary to have a survey made upon the ground to establish the location of the lot or lots purchased. The evidence shows that as early as 1919 Fritz Holmquist, one of the witnesses in this case and a competent civil engineer was called upon frequently to make these surveys and actually made said surveys and placed wooden or iron stakes at the corners of most of the lots on the east side of Block 31 of said subdivision. He was not questioned about whether he participated in surveys on the west side of said block but did say that he had made surveys in a number of blocks in that subdivision over a period of many years.

In any event homes were constructed, fences built and trees planted along the side lines of all of said lots to the south of Lots 8 and 6, Block 31, in accordance with said surveys. Only Lots 8, 6, 4 and 2 on the east side of Block 31 were vacant at the time the parties hereto purchased Lots 8 and 6 from a Mrs. Shaw. In Block 31 both on the east and west sides of said Block,-property lines between all the lots except Lots 8, 6, 4 and 2 are marked by fences or trees which have been in existence over a long period of years. It is 207.5 feet from the north line of Lot 10 to the south line of the present alley located where Elm Street was shown on the original plat. This footage was sufficient to give to the purchasers of each of the four lots all the frontage they purchased and all the frontage they were entitled to under the law. Be it remembered that at the time Elm Street was abandoned the law did not give to the adjacent property owners the abandoned area as it now does. If appellee should prevail in this litigation the effect would be to reduce the width of appellant’s lot approximately 30 feet, and to increase the frontage to the lot adjacent to the alley the same number of feet.

*109Elm Street above mentioned was immediately north of Lot 2 according to the map or plat of Grand Avenue Subdivision. In 1930 the board of supervisors of Maricopa County by resolution purported to abandon said street except the north 20 feet thereof which it reserved for an alley. An examination of the original map or plat of Grand Avenue Subdivision shows that Ash Street, now Roosevelt Street, marked the south boundary of said subdivision; that it crosses Grand Avenue and continues straight east without the slightest offset in the side lines thereof, and presumably exists today as it was designated at that time. At least there is no evidence to the contrary. The plat further shows that Cedar Street which lies one block north and immediately south of Block 31, if projected, the side lines thereof would be superimposed upon the side lines of Magnolia Street to the west of Grand Avenue.

The side lines of all lots south of Lots 8 and 6, Block 31, on the east side thereof have been established by common consent and title vested thereto in the respective owners by adverse possession, and the evidence concerning side lines of lots on the west side of said Block seem to indicate a like condition. A comparison of these property lines with the original plat, the city map, and Plat E of the F. Q. Story Addition will reveal these property lines are in practical conformity with the original plat.

While it is true that public officials are presumed to act in conformity with ordinances or resolutions passed by them, it does not necessarily follow that because the resolution of the board of supervisors providing that Elm Street should be abandoned except the north 20 feet thereof preserved for an alley, the south portion rather than the north portion thereof was actually abandoned. Striking proof of that fact is evidenced by the case of Calhoun v. George D. Moore, et al., not yet reported, where the board of supervisors by resolution provided for the opening of a road on the half-section line on 23rd Avenue between Indian School Road and Campbell Avenue in this county whereas in fact at that point the road veered 53 feet to the west of the half-section line and has been so used for more than thirty years.

Let it be conceded that the city survey and the Jones survey are accurate surveys of the area according to the Governmental monument located at McDowell Road and 15th Avenue. We must remember that we are not here concerned with an accurate survey of this particular area. We are concerned only with accurately ascertaining, if we can, the location of the boundary lines of Grand Avenue Subdivision according to the original plat thereof and the boundary lines of the lots and streets shown by said map or plat. It matters not how inaccurate the plat may have been or may be, property rights have vested according to that map or plat. No surveyor whether he be acting on behalf of the city or anyone else has the right to arbitrarily change *110property lines ór move streets from the location established by the original map or plat. The city surveyor who prepared the so-called official map of the city of Phoenix and the witness Jones wholly misconceived their duty in making their surveys of this area. The function of a surveyor in a case of this kind is not to determine where the streets or the lot lines in the subdivisions should have been according to an accurate survey-but to determine where they actually were, measured by the original map or plat of Grand Avenue Subdivision. In the case of Diehl v. Zanger, 39 Mich. 601, the court said that a long-established fence is better evidence of actual boundaries settled by practical location than any survey made after the monuments of the original survey have disappeared. That certainly would apply where no survey appears to have been made as in this case and especially where said fences for all practical purposes conform with the original plat. Justice Cooley in a concurring opinion in that case said:

“Nothing is better understood than that few of our early plats will stand the test of a careful and accurate survey without disclosing errors. * * * The (city) surveyor has mistaken entirely the point to which his attention should have been directed. The question is not how an entirely accurate survey would locate these lots, but how the original stakes located them. * * * The city surveyor should, therefore, have directed his attention to the ascertainrhent of the actual location of the original landmarks set by Mr. Campau, and when those were discovered they must govern. If they are no longer discoverable, the. question is where they were located; and upon that question the best possible evidence is usually found in the practical location of the lines, made at a time when the original monuments were presumably in existence and probably well known: Stewart v. Carleton, 31 Mich. 270. As between old boundary fences, and any survey made after the monuments have disappeared, the fences are by far the better evidence of what the lines of a lot actually are. *

The above statement of Justice Cooley is particularly apropos in the instant case. Nothing appears on the original plat to indicate either the width of lots or of streets. No governmental monuments are indicated. There is no evidence in this record that any measurement was ever taken from the Governmental monument at the intersection of McDowell and 15th Avenue in platting Grand Avenue Subdivision. There can be no justification in doing so at this time. At the time the subdivision was platted no law existed in the territory of Arizona prescribing the steps to be taken in laying out subdivisions to towns or cities. The only statute in existence at the time remotely relating to such matters was Chapter 2, section 169, Revised Statutes of Arizona of 1887 adopted in April, 1887, providing for the platting of towns on public lands and for dedication of streets and alleys by filing a plat thereof with the board of supervisors. *111That statute was not applicable either to platting private property or to subdivisions and therefore has no application to the instant case but it is probably that it was used as a pattern in subdividing Grand Avenue Subdivision and it is further probable that the draughtsman never checked the plat with actual measurements or monuments. Under such circumstances it is easy to account for the inaccuracy of the plat with reference to Governmental monuments. Aristotle said: “We should seek such certitude in each thing as the nature of that thing allows.” This is simply a concise statement of the “best evidence rule” adopted by the courts of this country in the ascertainment of certain facts upon which they can predicate judgments.

Bearing in mind that there is no evidence that an actual survey was ever made of Grand Avenue Subdivision or that any actual measurements were ever made from the Government monument at the intersection of 15th Avenue and McDowell Road and that our sole concern here is to determine if we can from the best evidence available what actually was the location of the lots in question as fixed by the plat of the Grand Avenue Subdivision, we are forced to.- the conclusion that their location is to be determined if at all from well-established long-standing monuments existing within the subdivision itself.

What is the best evidence in this case? Certainly the Government monument at McDowell Road cannot be treated as the best evidence of a starting point from which the actual location of the lots here involved may be accurately determined for the reason that there is no evidence that such monument was ever used as a starting point, in platting Grand Avenue Subdivision. On the other hand so far as the evidence discloses Cedar Street as it exists today is located exactly where the plat-of the Grand Avenue Subdivision places it. It certainly is located exactly where the property owners in Blocks 31 and 32 by common consent have placed it since it was opened for use, some time after 1911. As stated above, if the side lines of Cedar Street were projected west they would be superimposed upon the side lines of Magnolia Street and vice versa. That is where the original plat places it. The extended side lines of a street constitute in law a permanent monument. Carey v. Clark, 40 Nev. 151, 161 P. 713. Therefore the side lines of Cedar Street are in legal effect a permanent monument in Grand Avenue Subdivision from which the location of lots in Block 31 may be definitely determined. In fact, under the best evidence rule it is the only monument from which the location of said lots according to the Grand Avenue Subdivision plat can be made. The accuracy of this monument has been confirmed by acquiescence by all of the property owners in Block 31 except Lots 8, 6, 4 and 2 thereof, and all of the property owners in Block 30 to the south of Cedar Street. This acquiescence is *112clearly evidenced by location of homes on such lots and the building of fences and growing of trees along the side lines thereof for a long period of years far in excess of the statutory period required to acquire title by adverse possession. This is true as to lots on both the east and west side of Block 31 and especially directly west of Lots 8 and 6. These things were clearly visible to both parties to this litigation when they purchased the lots from Shaw. The fences along the side lines of the lots themselves may be treated as monuments. Perich v. Maurer, et al., 29 Cal.App. 293, 155 P. 471. It was said in Ralston v. Dwiggins, 115 Kan. 842, 225 P. 343, 344, that where a survey appears to conform with the recognized boundary lines of city lots on which buildings have been erected and expensive improvements made the boundaries so generally accepted and recognized for many years lend some support to the survey approved by the court; citing Tarpenning v. Cannon, 28 Kan. 665. The surveyor in that case testified that if the appellant’s theory was adopted “it would move every existing improvement in town 6 feet.” If appellee’s survey is accepted it will move every lot line in Blocks 30 and 3,1 Grand Avenue Subdivision south approximately 25 to 30 feet. Such a result would be disastrous to all of said property owners were it not for the fact that they have all acquired title to the property actually occupied by them by adverse possession. The court in the. Ralston case, supra, further said: “ ‘The primary rules for locating city plats upon the ground are, in order of precedence in application, as follow: (1) Find the lines actually run and the corners and monuments actually established by the original survey. (2) Run lines from known, established or acknowledged corners .and monuments of the original survey. (3) Run lines according to courses and distances marked on the plat.’ ” citing In re Richardson, 74 Kan. 557, 87 P. 678. The court further said in that opinion: “It is urged that the section line was the proper base line which the surveyor should have ascertained and from which his measurements and calculations should 'have been made. That leaves out of consideration the original survey as. actually located upon the ground. A certain hedge fence is spoken of as having been used as a base line in early days, but time has erased that mark. The monuments and marks found by the surveyor furnished reasonably good evidence in locating the original survey. * *

We have conceded that Grand Avenue Subdivision was not accurately platted but we are bound by that plat as we find it and not by what it should be if accurately platted. We .are bound by the best evidence rule which must be held to be the monuments established by the plat itself, acquiesced in and confirmed by the property owners in Block 31 as evidenced by long-established property lines.

*113It follows that the location of Lots 8 and 6 must be determined in accordance with the best evidence rule, that is, by measurements from monuments irrefutably established by the original plat itself as confirmed by the property owners of Block 31.

The findings of the trial court are not supported by substantial evidence. The judgment of the court should therefore be reversed and the cause remanded to that court for the purpose of determining the amount of the damage suffered by appellant, in the manner specified in Justice STANFORD’S opinion.