City of Phoenix v. Kennedy

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 (repealed 1976).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, to be located across said land or as near as practicable to the exterior boundaries.”

In 1979 the City of Phoenix passed an ordinance declaring its…