Law School Case Brief
Overson v. Cowley - 136 Ariz. 60, 664 P.2d 210 (Ct. App. 1982)
In order for one to acquire title purely by adverse possession, such possession must be actual, open and notorious, hostile, under a claim of right, continuous for the statutory period, and exclusive. It is generally conceded that all of these elements must coincide before one may acquire title by adverse possession. The claimant's possession must not only be such as to exclude the owner, but must be such that possession is not shared with any other person.
In an action to quiet title to 40 acres of land, the trial court granted summary judgment in favor of the adverse possessor. Nickolaus and Barbara Greer, as lessees of owners, sought to enjoin the adverse possessor from trespassing on the land. The adverse possessor broadened the action by bringing in numerous third-party defendants, including the owners, seeking to quiet title to the 40 acres and claiming adverse possession for more than 10 years. The owners appealed, arguing that there were genuine issues of material fact as to the establishment of the adverse possession elements and the trial court abused its discretion in denying the owners' motion for leave to file additional affidavits.
Did the court err in entering summary judgment for the adverse possessor?
The court affirmed the grant of summary judgment quieting title to the 40-acre tract in the possessor. The court held that the owners were placed on notice of the possessor's adverse claim and the nature and exclusiveness of his possession because: (1) he built a fence on the three sides of the property which were non-contiguous to his own land; (2) in 1961 the possessor made a formal demand for quit claim deed; and (3) the owners were aware of the possessor's use of the land for grazing. The court also held that there was insufficient evidence to establish a re-entry by the owners of a nature calculated to interrupt the running of the statute of limitations. And, assuming title by adverse possession was acquired in 1971, subsequent efforts by the owners to effect a re-entry were of no avail. Further, the trial court did not err in denying the owners' motion for leave to file additional affidavits because the owners unduly delayed in presenting that evidence without any reasonable excuse.
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