US on Behalf of Zuni Tribe of New Mexico v. Platt, Civ. No. 85-1478 PCT-EHC.

• Decision Date: 08 February 1990
• Docket Number: Civ. No. 85-1478 PCT-EHC.
• Citation: 730 F. Supp. 318
• Parties: UNITED STATES on Behalf of the ZUNI TRIBE OF NEW MEXICO, et al., Plaintiff, Counter-defendants, v. Earl PLATT, et al., Defendants/Counter-claimants.
• Court: U.S. District Court — District of Arizona

730 F. Supp. 318

UNITED STATES on Behalf of the ZUNI TRIBE OF NEW MEXICO, et al., Plaintiff, Counter-defendants, v. Earl PLATT, et al., Defendants/Counter-claimants.

Civ. No. 85-1478 PCT-EHC.

United States District Court, D. Arizona, Phoenix Division.

February 8, 1990.

Hank Meshorer, Stephen G. Boyden, for plaintiff.

Warren E. Platt, Mitchell D. Platt, Patrick Xavier Fowler, for defendants.

ORDER

CARROLL, District Judge.

The Zuni Indians, as a part of their religion, make a regular periodic pilgrimage at the time of the summer solstice, on foot or horseback, from their reservation in northwest New Mexico to the mountain area the tribe calls Kohlu/wala:wa which is located in northeast Arizona. It is believed by the Zuni Indians that Kohlu/wala:wa is their place of origin, the basis for their religious life, and the home of their dead.¹

There is historical evidence that the Zuni pilgrimage was occurring as early as 1540 A.D.. Hammond, George P. and Agaptito Rey Narratives of the Coronado Expedition 1540-1542, The University of New Mexico Press; Albuquerque; 1940.

The pilgrimage has been largely uncontested until recent times.

In 1985 defendant, Earl Platt, declared his intention of preventing the Zuni Indians from crossing his land on their pilgrimage. Earl Platt and the estate of Buena Platt (defendant), own or lease from the United States or the state of Arizona land in Apache County over which the Zuni Indians cross on their pilgrimage to Kohlu/wala:wa. On June 12, 1985 the United States on behalf of the Zuni Tribe instituted this action claiming a prescriptive easement by adverse possession across the Platt land.

The United States also sought a temporary restraining order, which was granted by Judge Copple on June 12, 1985, restraining the defendant from interfering with the Zuni pilgrimage.²

On March 3, 1988 the Zuni Tribe was allowed to intervene as plaintiff. The intervenor's complaint, like the original complaint, alleged a right to prescriptive easement but it also bases the Zuni Indians' claim of right-of-way across the land in question on "rights to protection of its property and its free exercise of religion under the treaty of Guadalupe Hidalgo and upon Public Law 98-408 (98 Stat.1533)". The issues of whether under international or federal constitutional law the Zuni Tribe have rights to the land crossed on their religious pilgrimage were severed, for purposes of this trial, from the issue of prescriptive rights.

The Plaintiffs' claim for a prescriptive easement across the defendant's land was heard at trial on January 3-5, 1990.

FINDINGS OF FACT

The evidence presented at trial shows that the Zuni Indians have gone on their quadrennial pilgrimage, approximately every four years³ since, at least, the early twentieth century. There was direct evidence presented at trial, in the form of motion picture documentation, of the pilgrimage occurring in 1924. Exhibit 147 "Motion Pictures at Zuni," Indian Notes. Volume One, Number One, January, 1924, The Museum of the American Indian (Heye Foundation). Furthermore, John Niiha, the Zuni Dance priest, testified that he has been on 11 pilgrimages since his first in approximately 1949. Another Zuni religious leader, Mecalite Wytsallaci, the Zuni Rain Priest of the North for the last 39 years, who is ninety-nine years old, testified that he went on a pilgrimage when he was a young man but has not participated in the pilgrimage since he has been the Rain Priest. Wytsallaci's testimony, indicates that he participated in a pilgrimage sometime prior to 1940. Since 1976 the Apache County Sheriff's office has set up a road block, north of St. Johns, on Highway 666, at the request of the Zuni Tribe, so as ensure the safety and privacy of the pilgrims as they cross the highway going to and coming from Kohlu/wala:wa on their pilgrimage.

Eighty Tribe members are selected to participate in the pilgrimage. However, due to age, health and other considerations not all actually go along. The pilgrimage party generally consists of forty to sixty Zuni Indians and twenty to forty horses. The pilgrims walk or ride horses, vehicles are not allowed in the pilgrimage procession. The Zuni pilgrimage begins at the Zuni Reservation, in Northwestern New Mexico, and follows a fairly direct path to Kohlu/wala:wa in Apache County, Arizona. The pilgrimage generally crosses the defendant's land along the line of Township 15 North (T. # N.) — Range 28 East (R. # E.) sections 13, 24, 23, 22, 21, 28, 29, 30 continuing on to R.27E. sections 25, 36, 35, 34, 33, T.14 N. sections 4, 5, T.15 N. section 32 and back into T.14 N. section 5. At this point the pilgrimage splits. One religious clan of the Zuni pilgrims goes north from T.14 N. — R.27 E. section 5 to section 6 continuing through T.15 N. — R.27 E. section 31 and T.15 N. — R.26 E. section 36 then proceeding off the defendant's land. The other religious clan involved in the pilgrimage proceeds south from T.14 N. — R.27 E. section 5 to section 6 continuing through T.14 N. — R.26 E. sections 1, 12 & 13 then proceeding off Platt property.

The two religious groups meet at Kohlu/wala:wa and begin the journey back to the reservation. The return route re-enters the defendant's property at T.14 N. — R.27 E. section 9 goes through section 10, leaves and then re-enters Platt land at T.15 N. — R.27 E. section 36 continuing through R.28 E. sections 31, 32, 29 & 28 at which time the route of egress merges with the route of ingress to Kohlu/wala:wa.⁴

The total trek is 110 miles in length. It takes four days for the pilgrims to travel to Kohlu/wala:wa and return back to the reservation. The pilgrimage crosses approximately 18-20 miles of land owned or leased by the defendant Earl Platt.

The path or route used by the Zuni Indians, on their religious pilgrimage has been consistent and relatively unchanged.⁵ The plaintiffs concede that topographical changes may necessarily alter the route. However, man made obstacles will not cause the Zuni pilgrims to deviate from their customary path. This is evidenced by the fact the pilgrims cut or take down fences in their way.

The pathway used by the pilgrims is approximately fifty feet wide.⁶ The Zuni Indians use of the route in question is limited to a path or a place crossed enroute to Kohlu/wala:wa. Other than the path itself there are no points or landmarks of religious significance to the Zuni Indians on the defendant's land and the pilgrims do not camp on the defendant's land but they do stop for lunch on Platt land.⁷

The use of the property, by the Zuni Indians, along the pilgrimage route has been open visible and known to the community. Several witnesses who have been long time residents of the St. Johns area, which is in close proximity to the land in question, testified that they knew of the Zuni pilgrimage and that it was generally known throughout the community.

The Zuni Tribe, and the people going on the pilgrimage, believed that they had a right to cross the lands traversed by their established route. There has been no showing that they sought to cross lands under permission or by authority of other persons.

CONCLUSIONS OF LAW

The Arizona statute defining adverse possession provides:

"Adverse possession" means an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another.

A.R.S. § 12-521. The Arizona statutes further provide that:

A. A person who has a cause of action for recovery of any lands, tenements or hereditaments from a person having peaceable and adverse possession thereof, cultivating, using and enjoying such property, shall commence an action therefor within ten years after the cause of action accrues, and not afterward.

A.R.S. § 12-526.

The Arizona statutes follow the generally held rule that in order for one to acquire right to property purely by adverse possession, such possession must be actual, open and notorious, hostile, under a claim of right, continuous for the statutory period of 10 years, and exclusive. Whittemore v. Amator, 148 Ariz. 200, 202, 713 P.2d 1258 (App.1985) See also LaRue v. Kosich, 66 Ariz. 299, 187 P.2d 642 (1947).

The Arizona Courts place the burden of proof on the party claiming the right to use another's land. LaRue, 66 Ariz. at 303, 187 P.2d 642. Once the prima facie elements of prescription are met, the law presumes the use to be under a claim of right and not permissive. Gusheroski v. Lewis, 64 Ariz. 192, 198, 167 P.2d 390 (1946). The burden of proving permissive use then falls upon the landowner. Brown v. Ware, 129 Ariz. 249, 251, 630 P.2d 545 (App.1981).

The proof necessary to establish a prescriptive easement to use land is not the same as that to establish a claim of title by adverse possession. Etz v. Mamerow, 72 Ariz 228, 232, 233 P.2d 442 (1951). "It is only the use to which the premises are put which must be shown to be adverse, open and notorious. To the extent that the use is established, it, of course, is hostile to the title of the servient estate." Id. at 233, 233 P.2d 442. Therefore, although the plaintiffs in this case must prove all the elements essential to title by prescription,⁸ their burden of proof must be measured in terms of the right to the use they claim, i.e. a very limited periodic use.

ELEMENTS ESTABLISHING AN EASEMENT

As stated above the plaintiffs must have proven, at trial, every element essential to adverse possession to establish a prescriptive easement over the pilgrimage route in question. Arizona case law does not provide a clear delineation as to the requirements of each element of adverse possession and often two or more requirements are analyzed in conjunction with each other.

The requirements of establishing actual possession and continuous possession are similar and inseparable and therefore they shall be considered together. Neither actual occupancy nor cultivation nor residence is necessary to constitute...