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CITY OF PHOENIX v. KENNEDY

No. 1 CA-CIV 6225.

138 Ariz. 406 (1983)

675 P.2d 293

CITY OF PHOENIX, municipal corporation, Plaintiff-Counterdefendant, Appellee, v. Earl D. KENNEDY, a divorced man, Defendant-Counterclaimant, Appellant.

Court of Appeals of Arizona, Division 1.

December 22, 1983.

Attorney(s) appearing for the Case

Andrew Baumert, Phoenix City Atty. by Sandra Karen McGee, Asst. City Atty., Phoenix, for plaintiff-counterdefendant, appellee.

Ray A. Taylor, Scottsdale, for defendant-counterclaimant, appellant.

OPINION

HOWARD, Chief Judge.

In 1955 appellant was granted a federal patent to five acres of land pursuant to the Small Tract Act, 43 U.S.C.A. § 682a et seq. (repealed 1976). William F. Davis received a patent to an adjacent five acres, which he quit claimed to appellant that same year. Both patents contain the following language:

"This patent is subject to a right-of-way not exceeding 33 feet in width, for roadway and public utilities purposes...

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