Beck v. Neville

540 P.3d 906

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

v.Richard NEVILLE, et al., Defendants/Appellants.

No. CV-22-0134-PR

Supreme Court of Arizona.

Filed January 9, 2024

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

Memorandum Decision of the Court of Appeals, Division One, No. 1 CA-CV 21-0197, Filed Apr. 26, 2022. VACATED

Stephen W. Tully (argued), Tully Bailey, LLP, Phoenix, Attorneys for Steven P. Beck, Lesli C. Beck, and Trustees of the UDTSLGGB Revocable Living Trust

Jared Sutton, Stacey F. Gottlieb (argued), Papetti Samuels Weiss McKirgan LLP, Scottsdale, Attorneys for Richard Neville and September Neville

JUSTICE MONTGOMERY authored the Opinion of the Court, in which JUSTICES BOLICK, LOPEZ, BEENE, KING, and PELANDER (Ret.) joined.^* VICE CHIEF JUSTICE TIMMER concurred in part and in the result in a separate opinion.

JUSTICE MONTGOMERY, Opinion of the Court:

¶1 This case addresses two different causes of action that can dispossess a record title holder of property. Specifically, we consider whether Arizona recognizes a cause of action under the doctrine of "boundary by acquiescence" and, if so, what elements are required to prove it, as well as the burden and standard of proof. We also consider what is required to establish the "open and notorious" element of an adverse possession claim.

¶2 We hold today that Arizona law recognizes a cause of action for boundary by acquiescence, and that, the claimant bears the burden of proving by clear and convincing evidence the elements as set forth in Mealey v. Arndt, 206 Ariz. 218, 221 ¶ 13, 76 P.3d 892, 895 (App. 2003), with the additional element that the actual boundary is uncertain or disputed. We also hold that occasionally parking a car partially on an adjoining landowner’s property is insufficient to establish the open and notorious element of an adverse possession claim.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 In 1998 and 2000, the Nevilles and Becks, respectively, purchased adjoining properties. The Becks’ home is north of the Nevilles’ at a slightly higher elevation. Around 2004, the Becks improved the landscaping of their front yard, which included colored rocks for ground cover. To ensure that the rocks would not flow south down the slope of their yard, they had landscapers install decorative stamped concrete paver bricks.

¶4 However, instead of adhering to the Becks’ actual recorded property line, which runs diagonally from the comer of the common wall between the two properties to a piece of rebar with a pink streamer, the landscapers mistakenly set the concrete pavers on a line running directly east from the corner of the wall to the edge of the street.¹ This mistake made it appear that the pavers constitute the northern edge of an approximately ten foot, single-vehicle wide, gravel driveway running from the edge of the street straight back to a double gate on the north side of the Nevilles’ home. This purported' driveway includes the 135 square foot, triangle-shaped area in dispute.

¶5 The Becks assert that after they learned of this mistake, they informed the Nevilles of what had happened. However, the landscaper responsible for the error apparently went out of business and the pavers were never adjusted. The Nevilles allege that in 2014 the Becks made additional changes to the landscaping in which the pavers were removed and then placed back in the same location. The Becks contend that they did not make any landscaping changes in 2014 other than performing routine maintenance that did not involve removing the pavers and that yard maintenance workers have used the disputed area to gain access to the Becks’ property.

¶6 In 2019, the Becks remodeled their backyard, necessitating the extension of drainage pipes from the end of the common wall down to the edge of the street. The extension would have required the Becks to dig up the disputed property, after which they planned to place the pavers along the recorded property line. The Becks informed the Nevilles of the anticipated construction and the Nevilles responded that they, not the Becks, owned the disputed property. The Becks claim this is the first time the Nevilles asserted such ownership. The Nevilles then sent a cease-and-desist letter to the Becks, stating that the Nevilles were the owners of the property by adverse possession and boundary by acquiescence.

¶7 The Becks, asserting ownership and entitlement to possession of the disputed property, filed this action to quiet title pursuant to A.R.S. § 12-1101. The Nevilles filed a counterclaim to quiet title on their behalf based on adverse possession and boundary by acquiescence. On cross-motions for summary judgment, the trial court concluded that the Becks met their burden to quiet title and that the Nevilles had failed to provide sufficient evidence to establish their claims. It therefore granted summary judgment in favor of the Becks.

¶8 The Nevilles appealed. In a split decision, the court of appeals reversed the summary judgment and remanded the case to the trial court for further proceedings. Beck v. Neville, No. 1CA-CV 21-0197, 2022 WL 1218629, at *4 ¶ 22 (Ariz. App. Apr. 26, 2022) (mem. decision). The majority held that summary judgment was incorrectly entered because the parties’ declarations presented disputed facts concerning both the adverse possession and boundary by acquiescence claims. Id. at *2 ¶ 12, *3 ¶ 16. The dissent agreed with the trial court that the Nevilles had failed to present sufficient evidence to support those claims. Id. at *6 ¶ 30 (Morse, J., dissenting).

¶9 We granted review because the circumstances under which a claimant may quiet title to a portion of a record owner’s real property is an important issue of statewide concern. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

DISCUSSION

[1, 2] ¶10 We "review a grant of summary judgment de novo, viewing the evidence in the light most favorable to the party against whom summary judgment was entered." Dabush v. Seacret Direct LLC, 250 Ariz. 264, 267 ¶ 10, 478 P.3d 695, 698 (2021). Where cross-motions for summary judgment are filed, "summary judgment in favor of either party is appropriate only "if the facts produced in support of the [other party’s] claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.’" Andrews v. Blake, 205 Ariz. 236, 240 ¶ 13, 69 P.3d 7, 11 (2003) (alteration in original) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008, (1990)).

A. Boundary by Acquiescence

¶11 We begin by addressing whether Arizona recognizes the doctrine of boundary by acquiescence and, if so, what is required to prove such a claim.

1. Recognition

[3] ¶12 The parties disagree on whether Arizona has recognized a cause of action based on the doctrine of boundary by acquiescence. The doctrine permits adjacent landowners to "mutually recognize a boundary and act as if it were the true property line." Thomas Phillip Boggess V, Cause of Action to Establish Boundary Between Adjoining Property Owners, 42 Causes of Action 2d 489, § 2 (2023) [hereinafter "Boggess"]. The purpose of the doctrine is to "avoid[ ] litigation and promote[ ] stability in landownership." Bahr v. Imus, 250 P.3d 56, 65 ¶ 35 (Utah 2011) (quoting Staker v. Ainsworth, 785 P.2d 417, 423 (Utah 1990)).

¶13 Although the Becks acknowledge that this Court and the court of appeals have discussed such a cause of action, they argue that this Court has not affirmatively recognized it and no Arizona court has set forth its elements. The Nevilles argue that there is no need to "affirmatively recognize" boundary by acquiescence because it is a part of the common law, which Arizona courts have adopted to the extent it is not inconsistent with constitutional or statutory law. Additionally, the Nevilles assert that Arizona has explicitly recognized boundary by acquiescence in Hein v. Nutt, 66 Ariz. 107, 184 P.2d 656 (1947), or, at the very least, in Mealey.²

¶14 Hein involved an attempt to determine the corners of various parcels of land to establish the boundaries of adjoining pieces of property. Hein, 66 Ariz. at 108–09, 184 P.2d 656. As part of its analysis, this Court noted,

The period of acquiescence must continue for the period prescribed by statutes relating thereto or required by statutes of limitations relating to the acquisition of title by adverse possession. Arizona has no statute on acquiescence and our applicable statute of limitations on adverse possession requires five years. Therefore, even assuming that the required elements of acquiescence were present, the necessary time element is lacking.

Id. at 114, 184 P.2d 656 (cleaned up). Thus, the boundary by acquiescence claim in Hein failed because it lacked the required amount of time, not because the Court declined to recognize the cause of action.

¶15 Boundary by acquiescence was next at issue in Wacker v. Price, 70 Ariz. 99, 216 P.2d 707 (1950). Therein, this Court observed: "Every lot in block 31 south of lots 6 and 8 here involved have definite boundaries established by acquiescence of the parties for a much longer period than is required to establish title by adverse possession." Id. at 104–05, 216 P.2d 707. Accordingly, this Court treated "the boundaries fixed by the property owners themselves" as the best evidence of the boundaries. Id. at 106–07, 216 P.2d 707. Therefore, neither "the city surveyor nor any other surveyor ha[d] any authority to establish new boundaries which must of necessity affect the property rights of all property owners concerned where they cannot establish title by adverse possession." Id. at 107, 216 P.2d 707. Thus, this Court clearly acknowledged the doctrine of boundary by acquiescence and treated it as distinct from adverse possession.

[4] ¶16 More recently, the court...