Spaulding v. Pouliot, 2 CA-CV 2007-0108.

• Decision Date: 23 April 2008
• Docket Number: No. 2 CA-CV 2007-0108.,2 CA-CV 2007-0108.
• Citation: 218 Ariz. 196,181 P.3d 243
• Parties: Pat SPAULDING, in her capacity as a Trust Officer of Stewart Title & Trust of Tucson, an Arizona corporation, as Trustee under Stewart Title Trust Number 3610, Plaintiff/Appellee, v. Michael A. POULIOT, an unmarried man, Defendant/Appellant.
• Court: Arizona Court of Appeals

181 P.3d 243

218 Ariz. 196

Pat SPAULDING, in her capacity as a Trust Officer of Stewart Title & Trust of Tucson, an Arizona corporation, as Trustee under Stewart Title Trust Number 3610, Plaintiff/Appellee, v. Michael A. POULIOT, an unmarried man, Defendant/Appellant.

No. 2 CA-CV 2007-0108.

Court of Appeals of Arizona, Division 2, Department A.

April 23, 2008.

Aboud & Aboud, P.C., by Michael J. Aboud, Tucson, Attorneys for Plaintiff/Appellee.

Butler & Associates, P.L.C., by Michael J. Butler and Michael A. Fleishman, Tucson, Attorneys for Defendant/Appellant.

OPINION

BRAMMER, Judge.

¶ 1 This is a dispute between two property owners regarding the use of a road and the ownership of a small, adjacent parcel of land. Appellant, Michael Pouliot, appeals the trial court's grant of injunctive relief and award of attorney fees and costs in favor of appellee, Pat Spaulding, acting in her capacity as trustee of Stewart Title Trust No. 3610 (the Trust), and its dismissal of his counterclaim. Pouliot argues the trial court erred in dismissing his counterclaim and granting the Trust's requested injunction, based on the court's legal determination that the use and possession of land, by a party claiming rights to it by prescriptive easement or adverse possession, are presumed to be permissive. Pouliot further argues the trial court erred in awarding the Trust its costs and attorney fees.

Factual and Procedural Background

¶ 2 The following facts are undisputed. Pouliot owns and resides on a parcel of land adjacent to a large vacant lot in Pima County. Pouliot purchased his parcel in 1996 from Beatrice Redmond, who had purchased it in 1968. Since 1968, Redmond had used an unpaved road over the neighboring vacant lot to access a carport on her property. During that time, she regularly had the road graded. She had also maintained a small parcel of land between the road and her home (the "adjoining parcel"), upon which she kept and maintained a propane tank that provided fuel to heat her home. Shortly after Pouliot bought Redmond's property in 1996, he built a large garage to replace the carport. He later paved the part of the road he used to access his garage and placed decorative rock on the adjoining parcel. Throughout his ownership, he continued to use and grade the road and to use and maintain the adjoining parcel.

¶ 3 In 1971, John and Emily Aboud purchased the vacant lot next to the Redmond/Pouliot property and visited it periodically over the following three decades. In 2003, the Abouds' children acquired the lot and placed it in the Trust for their benefit. In 2005, in accordance with A.R.S. § 12-1103(B), the Trust requested that Pouliot execute a quitclaim deed to the portions of the Trust's property he had been using. Pouliot refused to do so.

¶ 4 The Trust sued Pouliot, alleging he was trespassing on its property. It asked the court to bar Pouliot from further use of the property and to order him to remove the paving from the road. Pouliot answered, claiming he had a prescriptive easement over the road and had acquired title to the adjoining parcel by adverse possession. Pouliot then served and asked the Trust to execute quitclaim deeds to the road and adjoining parcel.¹ After the Trust refused, Pouliot amended his answer to add a counterclaim, asking the court to rule that he had acquired title to the adjoining parcel by adverse possession and had acquired a prescriptive easement over the road. He also requested his attorney fees and costs.

¶ 5 Before trial, Pouliot moved for summary judgment. Despite the Trust's failure to deny that Pouliot and Redmond had used the road and the adjoining parcel openly, visibly, continuously, and without interference for at least ten years, the trial court denied Pouliot's motion, stating that unspecified questions of material fact remained.

¶ 6 After a one-day bench trial, the trial court entered judgment in favor of the Trust. It found that, although Pouliot and Redmond had used the road "openly and continuously since 1968" without having received express permission to do so,² their use was presumed to be permissive under applicable case law and Pouliot had failed to overcome that presumption as to either the road or the adjoining parcel. Granting the Trust's request, the court ordered Pouliot to remove the paving, enjoined his further use of Trust property, and awarded the Trust its attorney fees and costs. This appeal followed.

Discussion

Prescriptive easement over road

¶ 7 Pouliot first argues the trial court erred in determining that, under applicable supreme court precedent, the use of land over which a prescriptive easement is claimed is presumed to have been with the permission of the title-holder. Relying on LaRue v. Kosich, 66 Ariz. 299, 304-05, 187 P.2d 642, 645-46 (1947), the trial court ruled that Pouliot "had the burden of proving that the use was not with the implied permission of [the owner]." The court recognized, however, that an earlier supreme court case, Gusheroski v. Lewis, 64 Ariz. 192, 167 P.2d 390 (1946), had adopted the opposite presumption. But, because LaRue was decided after Gusheroski and "has never been overruled," the court applied the presumption it believed LaRue announced. It then concluded Pouliot had "failed to meet his burden of proof that his and his predecessor's use of the road [was] under a claim of right and hostile to the owner."

¶ 8 Pouliot contends the trial court erroneously interpreted LaRue. He asserts LaRue "was fully on board with the Gusheroski holding," despite the LaRue court's discussion of the opposite presumption. Pouliot further contends the presumption the trial court applied does not "accurately reflect[] the current state of the law concerning prescriptive easements." On appeal, we review de novo questions of law, but we will not disturb the trial court's findings of fact unless they are clearly erroneous. See Sabino Town & Country Estates Ass'n. v. Carr, 186 Ariz. 146, 149, 920 P.2d 26, 29 (App.1996). We will affirm the trial court's judgment if there is any reasonable evidence supporting it. See id.; Inch v. McPherson, 176 Ariz. 132, 135, 859 P.2d 755, 758 (App.1992).

¶ 9 As the trial court noted, our supreme court held in Gusheroski that:

[w]here the claimant has shown an open, visible, continuous, and unmolested use of the land of another for the period of time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right, and not by license of the owner. In order to overcome this presumption, thereby saving his title from the encumbrance of an easement, the burden is upon the owner to show that the use was permissive.

Gusheroski, 64 Ariz. at 198, 167 P.2d at 393, quoting Glantz v. Gabel, 66 Mont. 134, 212 P. 858, 860 (1923). One year later, while discussing Clarke v. Clarke, 133 Cal. 667, 66 P 10, 11 (1901), a California decision that long preceded Gusheroski, the LaRue court did observe that, under the facts of Clarke, "[t]he law . . . presume[d] . . . that the use was by permission." But the court nonetheless clearly confirmed in LaRue that it agreed with the presumption adopted in Gusheroski "in its entirety," although apparently concluding the presumption had been overcome in that particular case. LaRue, 66 Ariz. at 304, 306, 187 P.2d at 645, 647.

¶ 10 In Harambasic v. Owens, 186 Ariz. 159, 920 P.2d 39 (App.1996), Division One of this court acknowledged the apparent conflict in LaRue that confused the trial court here. The court in Harambasic recognized the presumption, adopted by Gusheroski and subsequently followed by our courts, that a "`use will be presumed to be under a claim of right, and not by license of the owner,'" once "`the claimant has shown an open, visible, continuous, and unmolested use of the land'" for the statutory period. Harambasic, 186 Ariz. at 160-61, 920 P.2d at 40-41, quoting Glantz, 212 P. at 860; see Gusheroski, 64 Ariz. at 198, 167 P.2d at 393; see also Inch, 176 Ariz. at 136, 859 P.2d at 759 (recognizing Gusheroski presumption); Brown v. Ware, 129 Ariz. 249, 251, 630 P.2d 545, 547 (App. 1981) (same); see generally Restatement (Third) of Property: Servitudes § 2.16 cmt. (g) (2000) ("The majority of American states apply a presumption that an unexplained, open or notorious use of land, continued for the prescriptive period, is adverse."). We agree with the Harambasic court that the presumption first adopted in Gusheroski correctly represents the law in our state.³ The Trust did not contest here or below that Redmond's and Pouliot's use of the road over its property was "open, visible, continuous, and unmolested" for the statutory period. Therefore, the trial court erred by not following Gusheroski.

¶ 11 But the Trust suggests this presumption is inconsistent with our supreme court's decision in England v. Ally Ong Hing, 105 Ariz. 65, 72, 459 P.2d 498, 505 (1969), in which the court stated that, "[u]nless notice of [the] use, hostile to the owner, is clearly brought home to the true owner, such use will be deemed permissive." The court observed that notice could be achieved either if the owner had actual knowledge of the hostile use or if the adverse nature of the use was "`so plainly apparent from [the claimant's] acts that knowledge should be imputed to [the owner].'" Id., quoting Hester v. Sawyers, 41 N.M. 497, 71 P.2d 646, 651 (1937). We need not decide here, however, whether the rule declared in England and cited by the Trust would in fact be inconsistent with the Gusheroski presumption, because the rule's application is limited to prescriptive claims over large, unenclosed, rural parcels of land.

¶ 12 In England, the claimant asserted, inter alia, that he had acquired a prescriptive easement to drive his cattle over another's ranch land. Id. at 71-72, 459 P.2d at 504-05. As the court noted, "In [Arizona], it is not uncommon for cattle to range at will across the open ranch lands. An owner of [such land] over...