Neal et. al v. Brown – 7/8/2008
Arizona Court ofAppeals Division One Holds that Landlocked Parcel Owner Does Not Have Absolute Right to Enforce Right-of-Way Granted Under Federal Law if Adequate Roadway Already Exists.
Plaintiffs/Appellees are two couples who are neighbors of Defendant/Appellant Brown. Plaintiffs/Appellees (“Neighbors”) won summary judgment in the Superior Court on their claim against Brown to quiet title to a right-of-way over Brown’s land. The original land patent to Brown’s land noted that the patent was subject to a right-of-way (“ROW”) for roadway and public utility purposes. Since the issuance of the patent, Skinner Drive was constructed along the southern boundary of Brown’s property and skinner Drive provides ample access for vehicle travel to all properties involved in this case.
After obtaining proper permits, Brown constructed, around her property, a fence (the “Fence”) which enclosed some or all of the ROW in question. Neighbors filed a complaint seeking to quiet title and an injunction directing that the Fence be taken down. On cross-motions for summary judgment, Neighbors contended that the Fence impaired their use of the easement and maintained that the access provided by skinner Drive was of no consequence. Brown contended that Neighbors were not the beneficiaries of the easement, that the actual beneficiary, MaricopaCounty, had authorized the construction of the Fence, and that the Fence was wholly proper.
Before the trial court and the Arizona appeals court, the parties agreed that the case was controlled by Bernal v. Loeks, 196 Ariz. 363 (App. 2000). Bernal recognized a private right of action on a land patent ROW where a nearby property owner without the ROW was impaired in his access to his own property. See Bernal, 196Ariz. at 363-64. Distinguishing Bernal based on the the Neighbors unfettered access to their property via Skinner Drive, a split panel of the Court of Appeals held that easement rights conveyed by federal land patents are not unconditional rights of ingress and egress, but rather are limited by their stated purposes.
In addition to distinguishing Bernal, the majority distinguished Squaw Peak Comm.CovenantChurch v. Anozira Dev., Inc., 149 Ariz. 409 (App. 1986). Neighbors had relied onSquawPeak for the notion that they were entitled to full use of the ROW unhampered by any obstruction. The Court distinguished that case on the ground that the easement there was precisely 40 feet, whereas the ROW here was “ambiguously” defined as “not exceeding” 33 feet. The Court then canvassed several out-of-state cases in accord with this holding.
Judge Hall authored the decision in which Judge Portley joined.
Judge Snow, who would have affirmed, dissented. In dissent, he maintained that the majority had misread the patent itself, misapplied existing law, failed to preserve the purpose of the Small Tract Act (“STA”), 43 U.S.C. §682(a)(repealed 1976), and created great uncertainty for lands with STA ROWs. Judge Snow also disagreed with the majority’s holding that the ROW was ambiguous. He further expressed his belief that the majority erred by interpreting the ambiguity in favor of the servient parcel (Brown’s) when Arizona law dictates the opposite. See Mtn. States Tel. & Tel. Co. v. Kennedy, 147Ariz. 514-16 (App. 1985). Finally, Judge Snow explained that the majority had created a public policy problem (1) in deciding that every STA reservation that used the term “not exceeding” is now ambiguous and (2) in holding that every STA reservation was now subject to a need-based analysis.