Decided Guidance: Case Examinations: Wacker vs. Price—Part 2–The Concurring Opinion

A 1.134Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

We are back in Phoenix, Arizona this month. The Arizona Supreme Court went all gunsa-blazin’ in Wacker vs. Price. I highlighted the decision and facts last month. This month we’ll dissect the concurring opinion by Justice Phelps. So we get a bonus second set of eyes on the matter. Let’s dive right in and see what Justice Phelps has to offer.

Justice Phelps opens up with a key observation "So far as the evidence in this case discloses there was never made an actual survey of Grand Avenue Addition, and certainly none that a survey was ever made with reference to a governmental monument at McDowell Road and 15th Avenue. The map or plat thereof …is shown to have been prepared by a draughtsman…It seems to be agreed by all the parties to this litigation , however, that lots were intended as 50-foot lots and the streets 60 feet in width."

Then Justice Phelps explains a few things that seem to establish a context to this case. The Court took notice that from 1887 until 1911 the area remained on the outskirts of town and was covered with mesquite trees. Lots began to sell and folks began to construct homes which made it necessary to have a survey establish the location of the lots. Fritz Holmquist was "that surveyor" as early as 1919 and over a period of many years. He set wood and iron throughout our block. Houses, fences, and tree rows were built according to the Holmquist surveys.

Now the legal staff down at Dewey, Skrewum, & Howe may tell me I’m full of baloney but I think ol’ Justice Phelps is stretching some rope here and doing a good job of it, to boot! The Justice observes that there is an appropriate amount of frontage for the undeveloped lots between the occupied lots and Elm Street as it exists to the north. He truly retraces the plat and makes a connection to the ground by projecting the street lines and observing that the existing streets fit the block as platted. "…it crosses Grand Avenue and continues straight east without the slightest offset in the side lines thereof, and presumably exists today as it was designated at that time. At least there is no evidence to the contrary." The Justice is referring to Roosevelt (Ash) Street on the south perimeter of the subdivision and makes the same analysis for Cedar Street one block to the north of Roosevelt and our southerly block line. He fixes the block corners by observing that all of Block 31 (the space occupied by Holmquist’s surveyed lots and the vacant lots) accurately fits between the existing streets in harmony with the dimensions on the plat. Keep in mind that the public established, accepted, and used those streets for decades and as the Justice says they presumably exist today as designated at that time.

Justice Phelps touches on something here that is beyond the purview of The Loyal Order of The Plumb Bob. He observes that "The sidelines of all lots south of Lots 8 and 6, Block 31, on the east side thereof have been established by common consent and title vested thereto into the respective owners by adverse possession, and evidence concerning sidelines of lots on the west side of said Block seem to indicate a like condition. A comparison of these property lines with the original plat, the city map, and Plat E of the F.Q. Story Addition will reveal these property lines are in practical conformity with the original plat." It seems to me that "Common consent" fits well with fellow Justice Stanford’s observation in the decision "…the boundary lines between the various lots in the subdivision as established by the parties themselves must control…" I honestly don’t understand Justice Phelps adverse possession logic and I can’t quite reconcile it with the notions of 1.) A whole gaggle of folks truly believing that they are occupying what they bought and observing dedicated streets, 2.) The concept that the lot owners are not adversely possessing each other’s land (perhaps some other underlying landowner like the original subdivider???), and 3.) The Court’s own recognition that the plat was accurately fixed to the ground by the adjoining streets. Isn’t the Court saying that the evidence is in the right place according to the plat? I don’t get it but I’m just the Surveyor!

Justice Stanford falls back on Trotter v. Slayton/Diehl v. Zanger and offers the following: "…that courts must resort and be bound by the best evidence available, it follows that the boundaries fixed by the property owners themselves in the absence of (original survey monuments) must control…" That makes sense in itself and might be the American Flag planted on the moon that Justice Phelps holds as the owners’ adverse claim. In the best interest of conserving The American Surveyor’s inkwell I’ll refrain from any further speculation…until I’m safely in the confines of my justice chamber a.k.a. the local barbershop.

Justice Phelps gives a shout out to the Board of Supervisors (County Commissioners elsewhere) offering respect for their authority to abandon roads. Simultaneously the Justice sort of deflates the balloon by acknowledging Ordinances and Resolutions don’t always follow the writing. More importantly he backs up his words with a local citation of Calhoun v. Moore. Furthermore, Justice Phelps constructed the blocks in a manner that places evidence supporting an inconsistency in the Abandonment Ordinance/Resolution. Not a bad bit of surveying by my count.

We have talked about Surveyor’s forcing outside or unrelated evidence in several Decided Guidance cases. Each case demonstrated that forcing evidence to a plat does not work and this case is no different. Justice Phelps cites Diehl v. Zanger and Chief Justice Cooley regarding an otherwise accurate survey performed by the City of Phoenix. Justice Phelps says "Nothing appears on the original plat to indicate either the width of lots or of streets. No governmental monuments (G.L.O.) are indicated. There is no evidence in this record that any measurement was ever taken from the Governmental monument at the intersection of McDowell and 15th Avenue in platting Grand Avenue Subdivision. There can be no justification in doing so at this time…it is further probable that the draughtsman never checked the plat with actual measurements or monuments…Certainly the Government monument at McDowell Road cannot be treated as the best evidence of a starting point…for the reason that there is no evidence that such a monument was ever used as a starting point, in platting Grand Avenue Subdivision…" Strongly consider Justice Phelps words the next time you jump on the city centerline intersection monument. Was it incorporated in your plat? Did the owners rely on it? Is it something the City cooked up as a best fit? Ask the hard questions when you retrace a survey!!!

Justice Phelps spent a lot of energy and time preparing his affirmation. I encourage all to give it a good reading back n’ forth. As I stated before he really did some hardcore retracement analysis and seemed to come up on the same side of the wash as I do. Of course, I don’t get paid to don a black robe in public either, so I got that goin’ for me… which is nice. Next month we’ll tear into the dissenting opinion. 

Note: A copy of this case is available at
The original GLO plat can be found here:

Jason Foose is the County Surveyor of Mohave County Arizona. He originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian.

A 1.134Mb PDF of this article as it appeared in the magazine—complete with images—is available by clicking HERE

About the Author

Jason Foose, PS

Jason Foose originally hails from the Connecticut Western Reserve Township 3, range XIV West of Ellicott’s Line Surveyed in 1785 but now resides in Township 21 North, Range 17 West of the Gila & Salt River Base Line and Meridian. He is also the Managing Editor of the magazine.