Home/Arizona Supreme Court/Berger v. Bhend

Berger v. Bhend

285 P.2d 751, 79 Ariz. 173, 1955 Ariz. LEXIS 146
CourtArizona Supreme Court
DecidedJuly 5, 1955
Docket5780
StatusPublished
Cited by14 cases

This text of 285 P.2d 751 (Berger v. Bhend) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berger v. Bhend, 285 P.2d 751, 79 Ariz. 173, 1955 Ariz. LEXIS 146 (Ark. 1955).

Opinion

PHELPS, Justice.

Appellants, the Bergers, prosecute' this appeal from a judgment of the trial court quieting title to certain land described in the pleadings in appellee Ernest Bhend and decreeing that appellants and all who claim under them are without any right whatsoever in and to said real property or any part thereof, and from the order denying appellants’ motion for a new trial. The parties hereto will be hereinafter designated by their surnames.

Bhend brought an action against Otto and Fred Berger to quiet title to the

NEy, of the NWi/4 of Section 1, Township 1 South, Range 5 East of G. & S. R. B. & M., Maricopa County, .Arizona.

The- actual area in dispute, however, consists of approximately 4% acres of land indicated' by the map incorporated herein and designated therein as the “disputed area”-; The Bergers plead thereto by filing .an. amended pleading designated as an answer, third party complaint, and counterclaim. Under permission of the court they brought in to said cause of action as third party defendants John Wiehl and Grace Wiehl, husband and wife, and counterclaimed against the plaintiff Bhend asking, among other things, for a reformation of the deed from the Wiehls to the Bergers. -

*176 The 4% acres above referred to lie along the west side of an irrigation ditch through which water is taken from the Salt River Valley Water Users’ canal which runs along the north side of the NW1^ of section 1. This quarter section is irrigated from east to west and has a slope of about 36 inches across each 40 acres. The ditch has been in existence for SO years or more. It takes the water from the Water Users’ canal approximately 180 feet east of the “forty” boundary line and runs in a slightly southwesterly direction so that when it reaches the south end of said tract it is only approximately 126.8 feet east of the southwest corner of the NE*4 of the NW%.

The evidence discloses that there was a hill or high place covering approximately three of four acres to the west of the canal which could not be farmed and it was the testimony of Mr. Wiehl when asked by the court:

“Q. How much would it cost to make a ditch on the west side of that fence ?
******
“A. ■ Where the trouble would come would be . the lower forty. That lays high and they gave it that slope so that the water would reach the lower end.”

In other words the point at which the ditch received the water from the Water Users’ canal was chosen in order to get water on the SWYi of the NWj4 of section 1 because it was high. This last described 40 acres is and has been owned by the mother of Otto and Fred Berger for many years and has been farmed by Otto Berger since 1920 and irrigated through this particular ditch.

In order that the reader of the opinion may more clearly understand the physical situation of the land here involved, we thought it advantageous to incorporate herein a map portraying the Government survey of the quarter section and the ditch and fence which all of the parties involved herein had pointed out to them and who understood it to be the boundaries of the land they purchased at the time the transaction was consummated.

The Bergers have presented eight assignments of error for our consideration, six of which are predicated upon the contention that the court erred in granting judgment for Bhend and against Bergers and in denying Bergers’ motion for a new trial upon the ground that the judgment-was neither supported by the evidence nor the law.

Assignment No. 6 is based upon the ground that the court found as a fact:

“(a) That Wiehl, Berger, Shepard *178 and Bhend did not agree on a boundary-line;
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Bluebook (online)
285 P.2d 751, 79 Ariz. 173, 1955 Ariz. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berger-v-bhend-ariz-1955.