100 P. 810 | Ariz. | 1909
The only question presented by this appeal is whether the statute of limitations as contained in paragraph 2938, Civil Code of 1901, bars causes of action which accrued more than ten years prior to the time that it took effect. Its provisions are: “Any person who has a right of action for recovery of any lands, tenements or hereditaments against another having peaceable and1 adverse possession thereof, cultivating, using and enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward.” This provision is contained in title 41 of the Revised Statutes. It was approved by the governor, March 21, 1901, and took effect the first day of September following. Prior to its adoption there was no statute of limitations in this Territory barring a right of action for the recovery of lands by one claiming title against another holding by peaceable and adverse possession merely. Curtis v. Boquillas Land & Cattle Co., 9 Ariz. 62, 76 Pac. 612.
It is urged by appellant that the statute bars only actions commenced more than ten years after September 1,1901; that if the time which had elapsed between the date the action accrued and1 the date the statute took effect be considered, thus giving the statute a retrospective operation, the right to bring the action would be summarily cut off, and the statute be rendered unconstitutional. In presenting this view he relies largely upon Curtis v. Boquillas Land & Cattle Co., supra. He is in error in assuming that the point here involved was there decided. The action was instituted after the passage of the act, but before it took effect. Attention was called to the different rules of construction applicable to statutes of limitation, among others that, where the statute summarily
The statute under consideration, by its terms, operates upon rights of action which accrued before it became effective, as well as those which would accrue thereafter, and it must be held to have been the intention of the legislature that it should so operate, unless, in order to hold it valid, we must impute to the legislature an intent to have it operate prospectively only. Therefore we must examine whether the legislature in fact did provide a reasonable time in which actions that had accrued more than ten years prior to its passage, or that would accrue more than ten years prior to the date it was to become effective, might be brought. As pointed out by this court in the Curtis ease, the weight of authority is to the effect that the time elapsing between the passage of-the act and the date it becomes effective may be considered in determining whether reasonable time has been allowed in
In this territory, as heretofore pointed out, prior to the adoption of the statute under consideration, there was no statute of limitations upon the subject. The complaint in this action shows that the defendants have been in peaceable adverse possession of the property for twenty-four years, and illustrates the necessity for a statute which will set at rest, after some reasonable lapse of time, titles to real estate so held. The legislature, in enacting this statute, probably had in mind that during the early development of the territory, when land was of but little value, in many instances care was not exercised in the preservation of evidences of title, and now, since values have so wonderfully increased, and perhaps extensive improvements have been erected, the former owners or their heirs seek to take advantage of the negligence of their vendees. We are unable to perceive that the time given in which claimants might commence their action was, under all the circumstances, so manifestly inadequate as to require us to hold that the legislature abused its discretion. True, there may be particular or exceptional instances, and this may be
Appellant calls ouro attention to certain observations made by us in Crowell v. Davenport, 11 Ariz. 823, 94 Pac. 1114, where we were considering the operation of an amendatory statute in the light of other statutory provisions, and in which it was suggested that the legislature has indicated a different rule of construction to be applied to new statutes of limitation from that indicated for the construction of statutes which are merely amendatory of those previously existing; but we there said that new statutes of limitation are to be given a prospective effect only, unless a contrary intent be expressed, and that is the rule we have applied in this case.
The trial court entertained the views we have herein expressed, and its judgment is affirmed.