Otis Smith v. Peter Beesley – 1/12/2011

January 12, 2011

Arizona Court of Appeals Division Two Holds That A.R.S. § 48-3613(D) Requires Courts to Issue an Order to Remove an Obstruction and Restore a Watercourse to its Original State if Compliance With the Statute and Authorization From the Board Cannot Be Achieved.

In 1952, Michael Mikol developed the Kohl’s Tonto Creek Ranch Subdivision.  The subdivision plat contains several non-delineated “drainage easements” passing over various tracts of land within the subdivision.  In 2005, Peter Beesley (“Beesley”) purchased land that the plat shows as being encumbered by a drainage easement.  Beesley subsequently built a culvert and driveway over the drainage easement without obtaining authorization of any kind.  Shortly after the project was completed, Otis Smith (“Smith”) filed a complaint for injunctive relief requesting that the trial court order the removal of all improvements Beesley had made to the drainage easement land.  After a brief trial, the court determined the driveway Beelsey had built would impair the drainage easement, but concluded that Beesley could build an alternative design which the court determined would not interfere with the easement.  Over Smith’s objection, the court entered a judgment which did not include any order requiring Beesley to ameliorate or remove his original driveway and culvert.  Smith subsequently appealed the judgment.

The Arizona Court of Appeals reversed the trial court’s judgment, holding that the trial court was obligated under A.R.S. § 48-3613(D) to order Beesley to remove the roadway.  A.R.S. § 48-3613(A) provides that “[A] person shall not engage in any development which will divert, retard or obstruct the flow of waters in any watercourse without securing written authorization from the bard of the district in which the watercourse is located.”  Subsection (D) provides that “[i]f a person is found to be in violation of this section, the court shall require the violator to either comply with this section if authorized by the board or remove the obstruction and restore the watercourse to its original state.”  In this case, there was no dispute that the driveway that Beesley constructed would impede the flow of water in the drainage easement and that the land within the easement constituted a “watercourse” as that term is defined in A.R.S. § 48-3601(12).  Moreover, Beesley’s own testimony established that he did not develop and submit construction plans.  Because Beesley had clearly violated the plain language of § 48-3613, the Court concluded that Smith was required to the relief set forth in subsection (D). 

The Court rejected Beesley’s contention that he did not violate § 48-3613 because the Gila County Flood Control District had passed an ordinance electing not to regulate drainages that are less than 160 acres, such as the one at issue here, making it impossible for him to get written authorization before beginning his project.  The Court explained that § 48-3613(D) expresses an unambiguous legislative intent that one person’s unauthorized construction cannot divert waters to another’s detriment.  Because courts must interpret ordinances so as to harmonize with pertinent statutes, the Court concluded that the board had no intention to immunize those persons diverting watercourses, even in smaller watersheds, from potential civil liability.   

Judge Eckerstrom authored the opinion; Judges Vasquez and Kelly concurred.