219 P. 232 | Ariz. | 1923
This is an action brought by Hattie L. Mosher, appellant, against the Arizona Packing Company, appellee, to quiet title
The evidence shows that about 1908 or 1909 John Botot entered upon this land and built a shack thereon. It appears that John Botot was in the peaceable possession of a portion of this fifteen-acre tract from 1909 up until a few months prior to the commencement of this suit. During the greater portion of this period the land was otherwise vacant and unoccupied. The appellant claims that she is entitled to a judgment quieting the title in her by virtue of paragraph 698 of the Civil Code of 1913, which is as follows:
“Any person who has a right of action for recovery of any lands, tenements or hereditaments against another having peaceable and 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.”
If John Botot had peaceable and adverse possession of the fifteen-acre tract of land for a period of ten years, and the appellee and its predecessors in interest made no effort during that time to recover possession thereof, then appellant is entitled to a
“ ‘Adverse possession,’ is an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.”
It would serve no useful purpose to enter into a discussion of the evidence. It is sufficient to say that there is no substantial evidence indicating that the possession of John Botot was adverse. The evidence does not show that his possession was under any claim of right inconsistent with and hostile to the claim of any one of the several parties who at different times held the paper title. On the contrary, the evidence is very plain that the possession of John Botot was without any claim of right, and that he never claimed any interest in the land until shortly before the commencement of this action. Possession without some pretense or claim of right is not adverse.
The judgment is affirmed.
McALISTER, C. J., and ROSS, J., concur.
LYMAN, J., being disqualified, Honorable "W. R. CHAMBERS, Judge of the superior court of the state of Arizona, in and for the county of Graham, was called to sit in his stead.