Scalia v. Green – 10/20/2011
Arizona Court of Appeals Division One Affirms Summary Judgment in Favor of Plaintiffs in Action to Quiet Title to Easements Against Neighbors.
Plaintiffs David and Beth Scalia brought claims against their Prescott neighbors, Robin and Verdie Green, to quiet title in easements granted in favor of their Prescott properties in 1987, 2000, and 2003. The trial court granted the Scalias’ motion for summary judgment, holding that (1) the Greens were barred from asserting any right in the 1987 easement that is inconsistent with the Scalias’ interest, (2) the Greens had no interest in the 2000 easement, and (3) the Greens were enjoined from using the 2003 easement. The trial court also awarded the Scalias their attorneys’ fees and costs. The Greens appealed.
The appellate court affirmed the summary judgment ruling with respect to the 1987 easement, because the Greens had not established, as a matter of law, that the Scalias abandoned the 1987 easement by using the adjacent 2000 easement. Abandonment of an easement is difficult to establish, because it requires evidence of “unequivocal statements of intent [to abandon] coupled with actions inconsistent with continued existence of the [easement.]” Restatement (Third) of Property,: Servitudes section 7.4 ct. c. Mere non-use of an easement, regardless of the length of time of that non-use, is insufficient to establish abandonment. Because the Greens produced no evidence beyond the Scalia’s alternate use of the 2000 easement, the court of appeals held that the grant of summary judgment in the Scalias’ favor was proper.
The appellate court affirmed in part the trial court’s grant of summary judgment with respect to the 2000 and 2003 easements. The 2000 easement unequivocally granted the Scalias an exclusive interest in the property, which worked to the exclusion of the rights of anyone else. The appellate court noted that, in the context of easements, the term “exclusive” connotes the right to exclude all others from any interest in the subject land. Furthermore, the grantor of the 2000 easement had not reserved the right to grant additional interests in the same strip of land to other parties. As a result, the grantor lacked the authority to grant the Greens such an interest by the 2003 easement. Thus, the trial court correctly held that the 2003 easement was void to the extent that it purported to grant to the Greens an interest that was coextensive with the Scalias’ rights created by the earlier 2000 easement. However, the appellate court reversed as too broad the trial court’s conclusion that the Greens had no rights in the 2003 easement; only the portion that invaded the province of the 2000 easement was invalid.
Finally, the appellate court affirmed the discretionary award of attorneys’ fees and costs, and awarded the Scalias their attorneys’ fees and costs incurred in successfully defending the appeal.
Judge Johnsen authored the opinion; Judges Orozco and Gemmill concurred.