(dissenting).
We consider that the decision of the majority not only does a gross injustice to the appellees but the principles of law applied to this situation, if followed, will work mischief with land titles generally. We completely disagree with both the majority opinion and the specially concurring opinion of our associates. The majority, as we view it, have by their rejection of what the trial court considered and what we deem to be the true control point, to wit: the quarter section corner on the north line of section 6, “ridden off in all directions”. They are, in our opinion, like a ship at sea without rudder or compass.
The author of the majority opinion maintains that Ida Shaw, (the common grantor of the parties) conveyed said lots “ * * * with reference to the north boundary line of lot 10 owned by Mrs. Newcomb * * * which boundary had become established by acquiescence in an old fence line. On the other hand the author of the concurring opinion maintains that “ * * * the side lines of Cedar Street * * *” constitute the proper control monument. (Cedar-Street — one block in length — while shown on the original plat of 1888 was not opened for use until the year 1911.) We maintain that both statements are predicated upon erroneous assumptions. As a matter of fact the Ida Shaw deeds in evidence specifically state, as to the description, that the conveyance is made with reference to the plat of the Grand Avenue Addition on record in the office of the County Recorder of Maricopa County, Book 1 of Maps, page 9. Later we shall endeavor to point out in more detail the incorrectness of these assumptions and show that the government monument, supra, should be accepted as the control point for an accurate survey. Before doing this, however, there are some general observations that may well be made.
At the outset we call attention to the fact that the sole issue involved in this case is, “Where upon the ground is the true boundary line between lots 6 and 8 of block 31, Grand Avenue Addition” ? Is it 1503 feet south of the northeast corner of the quarter section corner, as contended hy appellees and as found by the court, or is it 27.35 feet north of that point, as claimed by the appellants? The only par*114ties interested in this disputed boundary line are the appellants (plaintiffs), the record owners of lot 8, and appellees (defendants) who hold title to lot 6. The judgment of the trial court was strictly confined to a determination of this issue. This judgment, had it been permitted to stand, would not have upset incorrect boundary lines between lots owned by various other parties in the neighborhood. As between property owners to the south and the west of the lots in question, acquiescence in boundary lines or adverse possession might well be the determining factor. In any event their rights are not before us for determination in this proceeding. It is our opinion that if Ida Shaw, appellants’ grantor, lost title to the south portion — actually 27.35 ft. — of lot 8 it was because of the adverse claims of appellants’ neighbor on the south (Mrs. Newcomb) and not by reason of any deficiency or shortage of land in said lot 8. None of the elements of adverse possession are present as between the parties in the instant suit. It would appear appellants’ remedy was to sue their grantor on her warranty rather than trying to shift to the north the true boundary lines between lots 2, 4 and 6. The trial court found (and there is no evidence to the contrary) : “That there were no fences, monuments or other visible markings either along the (true) boundary line between said lots 6 and 8 * * * or along the line claimed by the plaintiffs to be the boundary between said lots at the time either the plaintiffs or defendants acquired their respective lots.”
We emphatically disagree with the statement in the concurring opinion to the effect that there was 207.5 feet from the north line of lot 10 to the south line of the present alley — originally a part of abandoned Elm Street — which was sufficient to give the owners of lots 8, 6, 4 and 2 each a fifty foot frontage. It is our view that the lot lines in question became fixed with the filing of the original Grand Avenue Addition plat and thereafter were immutable. The fortuitous circumstance of the abandoning of Elm Street by the board of supervisors in the year 1930 — nearly a half century after the subdivision was platted — can have no bearing upon the present controversy. It certainly is a novel suggestion that the closing of a street ipso facto shifts boundary lines of lots in the area. It is to be noted that no authority is cited in support of this proposition.
We believe that the following criticism may be justly leveled at the opinions of the majority. They have in this instance, unwittingly perhaps, set themselves up as the triers of the fact. Certainly throughout they have ignored the seventeen findings of the trial court and 'have stated the facts in a light most favorable to an overthrowing rather than a sustaining of the judgment as well as indulged in a goodly number of unwarranted assumptions. We consider these serious departures from well *115settled rules heretofore scrupulously followed by this and all other appellate courts. Estate of Taylor, 56 Ariz. 211, 106 P.2d 492.
It cannot be gainsaid that there is an irreconcilable conflict between the Holmquist survey of the area in question and the numerous other surveys thereof shown by the maps in evidence. The reason for this is obvious as different yardsticks were used. On the one hand the following surveys, to wit: (a) the Turney Map of the area (coprighted in 1908); (b) the junior subdivision known as the “F. Q. Storey Addition Plat E” (1927), covering the northeast portion of the original Grand Avenue Addition; (c) the survey made in connection with the abandonment by the board of supervisors of Elm Street (1930) and the establishment of a twenty foot alley on the north portion of said abandoned street; (d) the official map of the city of Phoenix (1938) of this subdivision (following closely the Turney map) upon which the city bases all of its paving, street lines, lot lines and assessments; and (e) the Jones survey made for the appellees, all unquestionably accept the same control point on the township line, to wit: the quarter section corner on the north line of section 6. Hence these surveys completely square one with the other. This fact is to us most significant, bringing, as we believe, irrefutable proof that the original subdivision map in 1888 was also laid out from the same control point. On the other hand Engineer Holmquist elected to ignore such monument, taking in lieu thereof his own previously established control points. In other words he made a survey of the lots-as he found them to exist on the ground and not as they were deeded according to the original plat. Excerpts from his testimony will, we believe, make this point crystal clear. First as to the non-use by Holmquist of the quarter section corner as a starting point he testified on cross examination :
“Q. Now Mr. Holmquist, can you state —and I will ask you this question again— can you tell us whether or not your survey of these two blocks, 30 and 31, Grand Avenue Addition, which was shown on this exhibit, Plaintiffs’ Exhibit ‘C’ in evidence, started from any of the quarter section corners of the Northwest Quarter of this Section 6? A. The east line of the quarter section was used as the east boundary of the block; otherwise it wasn’t passed on any certain distances from any of these corners, (emphasis supplied)
Next as to the map (Exhibit “D”) prepared by him which was primarily relied upon to establish the lot lines as contended for by appellants, we find this most revealing statement:
“q. * * * Now tell the Court in a little greater detail as to just how you found — and upon which you based your survey as is shown by — reflected by this map. A. Well, during a number of years *116I have been called on to make surveys in that portion of Grand Avenue Addition, not only these two blocks, (30 and 31) but blocks to the west. There has been a map prepared by Mr. Turney that I worked for years ago, I had a copy of that map, and I found out on investigation that that map didn’t fit conditions at all, if we attempted to make surveys by that map—
“Mr. Hill: We object to this as not being responsive. The question is where did he begin from to make this survey?
“The Court: Just answer the question.
“A. I made investigations and made preliminary sketches of the map to determine as near as possible where the lot line should be to fit fences that existed, and lines of evidence of where the lot lines were, by occupancy and so on, and altogether it has resulted in this map, as far as these two blocks are concerned, based on what we (call) collateral evidence, * * *
“Q. Tell the different monuments that you found and used as part of your survey in determining this lot 8? A. To start with, there weren’t any real monuments. The monuments were — part of them were put in by me. I don’t recall these two particular blocks, but as I would complete a survey and determine where I thought the line should be, we would put in — we would mark points out in the middle of the street with an iron pipe, and call it a survey monument, and when we would make another survey we have base additional surveys on the same monuments.” (emphasis supplied)
The Holmquist survey map has no official standing, it has never been approved by either the county board of supervisors or the city of Phoenix, nor is it filed for record with the County Recorder. It is admittedly an arbitrary plat showing conditions as he claims they exist upon the ground. It is our view that the original plat of the Grand Avenue Addition is controlling and not some unauthorized junior survey. We take it to be the settled law of this state that a survey based upon governmental monuments controls over one based upon unknown or private monuments. Galbraith v. Parker, 17 Ariz. 369, 153 P. 283.
Finally as to the origin of the iron stakes shown upon the Holmquist map and so greatly relied upon in the majority opinion, it is clear that they were not placed there by the original subdividers in 1887, for Mr. Holmquist testified:
“Q. But all of the iron stakes shown on this map of yours, marked Plaintiffs’ Exhibit ‘D’, you know yo%i put them in yourself? A. Yes, sir. (emphasis supplied)
We concede that had the lots been staked out simultaneously with the survey in 1888, and that fact could now be established, the purchasers would have a right to rely thereon even though thereafter a discrepancy was discovered. See Arnold v. Hanson, 91 Cal.App.2d 15, 204 P.2d 97. *117But that is a far cry from the facts in the instant case where the stakes were admittedly placed by Mr. Holmquist some three decades after the subdivision was platted.
The hiatus or squeeze play resulting from the impact of these conflicting surveys, Jones and Holmquist, amounting to about half the width of a lot (actually .27.35 feet) becomes manifest with the instant controversy. If the Holmquist map is accepted the lot lines are shifted north by that distance and defendants’ new brick residence is partially upon appellants’ ground. On the other hand if what the trial court considered to be the true measurement is adopted then the appellees have the land called for in their deed and decreed to them by the judgment of the trial court.
In the specially concurring opinion it is stated as a fact: “ * * * The plat (official plat of Grand Avenue Addition) further shows that Cedar Street * * *, if projected, the side lines thereof would be superimposed upon the side lines of Magnolia Street to the west of Grand Avenue.” yet, Engineer Harry E. Jones, whose testimony was evidently accepted by the trial court, testified on cross examination direct,ly to the contrary. We quote:
“Q. Now showing you the photostatic copy of the official recorded map, I will call jour attention to Cedar Street and Mag.nolia. A. Yes, sir.
“Q. They line up together, do they? A. No.
“Q. It appears to be so, does it not ? A. Well, an optical illusion, but they actually don’t for the simple reason that these blocks lying west of Grand Avenue were spaced off, beginning from the south line of the northwest portion, the blocks lie on the northeast side of Grand Avenue and were spaced off beginning at McDowell Road. Those streets, while they may appear to come to a common intersection of Grand Avenue, actually they don’t.
“Q. In other words, what it shows here Magnolia and Cedar Street running through there is an optical illusion? A. They don’t exactly coincide. Neither does Elm Street coincide exactly with Spruce Street west of Grand Avenue.
Even though other evidence in the record, such as a visual inspection of the Dyer map made in 1887, might be somewhat in conflict therewith, we might ask: have we become the triers of the fact? Under this state of the record can it be properly said that “the side lines of Cedar Street are in legal effect a permanent monument * * * from which the location of lots in block 31 may be definitely determined.”? Our answers to both queries are, of course, in the negative.
We agree with the majority that the controlling plat in the instant case is that of Grand Avenue Addition (1888) which plat comprises all of the Northwest Quarter *118of Sec. 6, Twp. 1 N. Range 3 E. of the G. & S. R. B. & M. Unfortunately the official map, other than stating it is drawn to a scale of 300 feet to an inch, is without original scale dimensions. That omission, however, is for our purposes supplied by the admission of all parties that the lots in blocks 30, 31, 32 and 33 (on the east side of the subdivision) as shown on the plat are fifty feet in width (except lot 15, block 30) and the streets shown thereon have a width of sixty feet, plus 33 feet 'for the south half of McDowell Road. With these dimensions conceded no uncertainty remains, hence we may invoke the rule stated in 8 Am.Jur., Boundaries, Sec. 6: “ * * * It is a general rule that a description of premises is deemed certain if it may be made certain. * * * ”
Furthermore, we find it to be the law that: “ * * * whenever a deed describes property by reference to a plat or map, the grantor is considered as having adopted the plat or map as a part of the deed, and the grantee takes title in accordance with the boundaries so identified. * * * An allotment made by reference to a plan which indicates with certainty the location of every lot, although none of the boundary lines may have been actually run or located, will be sufficient if the lots can be surveyed and made certain; * * 8 Am.Jur., Boundaries, Sec. 8.
We challenge the correctness of the oft repeated statements of the majority to the effect that the Grand Avenue Addition was not originally surveyed or platted with reference to governmental corners on the exterior lines of section 6, and more partían larly with reference to the quarter section, corner on the north at the intersection of what is now McDowell Road and Fifteenth Avenue. As a matter of fact the majority-are in disagreement among themselves as-to this matter of an original survey — Justice STANFORD stating: “* * * It. further appears from the evidence that the monuments from which the original survey was made cannot be accurately located. * * * ” (Emphasis supplied) whereas. Justice Phelps in the specially concurring opinion holds that: “So far as the evidence in this case discloses there was never made an actual survey of Grand Avenue Addition, * * (Emphasis supplied)
Obviously both cannot be right. It seems to us that the latter statement is, completely refuted by the dedication appearing upon the face of the original recorded plat of the subdivision, which reads-in part: "This plat of the lots, streets and alleys is hereby published as the complete-plan and survey thereof, and the said streets, and alleys upon the recording hereof in the County Recorder’s office are dedicated' to the public for their use limited as herein set out. * * * (empha-sis supplied)
Indicative of the ancientness of this plat is that it limited the use of Grand Avenue-"to light vehicles and such as are drawn by not more than two animals.” Would the. majority have us believe that the official *119•plat showing in great detail more than a ■dozen streets (including more than two-thirds of a mile of Grand Avenue), 33 'blocks and more than 700 lots which occupy .all of the NW)4 of Sec. 6, was made with no established control points? The idea to us is preposterous. In 11 C.J.S., Boundaries, § 104 a (3) it is said:
“ * * * It is not to be presumed that a ■surveyor knowingly made a description for lands which would be impossible to run out according to any recognized rules of sur•veying. * * *
% # sj? ‡ ifc
“ * * * In the absence of evidence to •the contrary, it will be presumed that the surveyor actually went on the ground in locating his lines,, and corners, * *
We agree with Justice STANFORD that an original survey was made of this subdivision but emphatically disagree, for the reasons hereinafter stated, that the monuments from which the original survey was made cannot now be accurately located. From the maps in evidence it appears that the government quarter section corner is now marked by a cross in the pavement at -the McDowell intersection. Both engineers, Jones and Holmquist, confirmed this fact. The latter testified on cross examination:
“Q. Now have those quarter section corners of the Northwest Quarter of 6, Township 1 North, Range 3 East, have they always been marked? A. Well, it has been marked ever since I have been in Phoenix.
“Q. How long is that? A. About 38 years.
“Q. And there is no dispute over those quarter section corners? A. Not that I know of” (emphasis supplied)
We may safely take judicial notice that the government survey of the township in question (which always includes the establishment of section and quarter section corners on the external bondaries of each section) was made prior to the time when the Grand Avenue Addition plat was filed as reference is thereon made to a legal subdivision of a surveyed section viz: NWj4, Sec. 6, T. 1 N., R. 3 E. Furthermore there is considerable sanctity to these monuments for it has always been a federal offense to destroy, change or remove to another place any section or quarter section corner on any government line of survey. See Sec. 1858, 18 United States Code Annotated.
The majority of the court, in reversing the judgment, is placed in this embarassing dilemna. They have two, nay three, control points from which they say the surveyor may proceed i. e., the Newcomb “partition fence” between lots 8 and 10, or the “side lines of Cedar Street” — take your choice — which govern (as they maintain) the east-west. boundary lines between the lots. Yet in determining the equally important north-south line, being the east boundary line of the lots in question. Engineer Holmquist — upon whom, from an engineer*120ing standpoint, appellants’ case rests— adopted as the third control point the identical quarter section corner now rejected by this court as being non-controlling. We quote excerpts from his testimony:
“Q. Now what other monuments did you tie into? A. The north quarter corner of the section for the same purpose.
“Q. The north quarter corner of the section? A. You might call that the northeast corner of the North west Quarter.
“Q. The northeast corner of the Northwest Quarter, that is the one at the center of McDowell? A. Yes, sir.
“Q. You tied into that on your survey? A. Tied into that line, yes, sir, the line connecting those two points.
“Q. I understood you to say you didn’t go that far with your survey. A. You had to get that line to get the east boundary of the blocks.
“Q. And did you tie in then to the quarter corner up there. A. I don’t recall whether I measured up there or not. We used this as a line. * * * ”
We contend that if this monument was valid for such purpose it was valid for all purposes. In a situation of this kind there can be but one control point, not two or more conflicting ones.
Obviously, the trial court took the view, and so do we, that in examining and construing the official plat of Grand Avenue Addition covering all, not a part, of the northwest quarter of said section 6, the only legal inference to be drawn therefrom was. that the subdivision conformed to the governmental survey of the area and that therefore the quarter section corner was the one and only controlling monument from which disputed boundary lines could properly be determined.
Part of our difficulty can be resolved', if the question a-s to who carries the burden of proof on this original monument matter is analyzed. It seems to be the view of the majority that it was incumbent upon the appellees (defendants) to affirmatively establish — after a lapse of 59 years, with participants probably all dead — that when the Grand Avenue Addition plat was prepared that it was laid off and measurements were taken from the governmental quarter section corner on the north line of section 6. We deny this premise and point out that-appellants were the plaintiffs in the court below and hence the burden was upon them of showing that t'he government survey corners had been moved in the interim or that the subdivision was not laid out in accordance with the official survey of said section 6. From 11 C.J.S., Boundaries, § 104(b), Burden of Proof, these excerpts, are taken:
“ * * * proof of a change of boundary is on the party asserting that fact
% % iji # i}c íjí
“As to surveys. One claiming under a survey, or disputing the accuracy of a stir*121vey, has the burden of proving the truth of his contention. * * * ”
As a matter of fact this precise narrow question came from the fertile minds of our ■associates as it was not made an issue in the lower court and no testimony either pro •or con appears in the record.
As an abstract proposition we have no quarrel with the principle of law announced .in Silsby & Co. v. Kinsley, supra, relied upon the majority, to the effect [89 Vt. 263, 95 A. 638]: “The actual location upon the ground of original lot lines will control, if capable of being ascertained; but, when such lines have never been surveyed or, if surveyed, their location upon the ground ■cannot be ascertained, resort may be had to the lines of adjacent lots to determine their location.”
It is our position that under the law and the facts of this case as we have detailed them this principle of law 'has no application for the reason that the surveyors are able to definitely fix the true monument from which the original survey of Grand Avenue Addition was made and thus ascertain the true location upon the ground of said lots. In other words, as we view it there are no lost, obliterated or destroyed monuments to deal with in this case. There is no occasion therefore for us to analyze the various cases cited by the majority.
It is our view that under the record of this case it may be conclusively presumed —there being no evidence to the contrary — ■ that the Grand Avenue Addition was laid out in accordance with the government survey of the area which it embraces. If we are correct in this conclusion that the government quarter section corner is the proper control point for an accurate survey then it indubitably follows the trial court was correct in finding in effect that: (1) it was precisely 1503 feet south from this established corner to the true boundary line between lots 6 and 8; (2) the Jones survey of the boundaries of appellees’ lot 6 is correct; and (3) no portion of the six room residence appellees erected thereon encroaches upon appellants’ lot 8. It is now conceded by the court’s majority, at least we so interpret their statements that the Jones survey was correct if the government monument controls, and hence we shall not labor the point by marshalling the evidence which so overwhelmingly establishes the correctness of the trial court’s findings in this regard.
To accept the decision of the majority in its full import will cast grave doubt upon, (a) the accuracy of the survey of all lots lying north of lot 10, block 31, Grand Avenue Addition, (b) the validity of the paving and other assessments levied by the City of Phoenix in the area, and (c) the abandonment of Elm Street and the establishment of the alley way therein.
For the reasons 'herein stated we would affirm in all particulars the judgment of the lower court.
DE CONCINI, J., concurs.