Bayless Inv. & Trading Co. v. Bekins Moving & Storage Co.

• Decision Date: 01 April 1976
• Docket Number: CA-CIV,No. 1,1
• Citation: 547 P.2d 1065,26 Ariz.App. 265
• Parties: BAYLESS INVESTMENT & TRADING COMPANY, an Arizona Corporation, and Eller Outdoor Advertising Company of Arizona, a Delaware Corporation, Appellants, v. BEKINS MOVING & STORAGE COMPANY, an Arizona Corporation, Appellee. 2638.
• Court: Arizona Court of Appeals

Page 1065

547 P.2d 1065

26 Ariz.App. 265

BAYLESS INVESTMENT & TRADING COMPANY, an Arizona Corporation, and Eller Outdoor Advertising Company of Arizona, a Delaware Corporation, Appellants, v. BEKINS MOVING & STORAGE COMPANY, an Arizona Corporation, Appellee.

No. 1 CA-CIV 2638.

Court of Appeals of Arizona, Division 1, Department B.

April 1, 1976.

Rehearing Denied May 10, 1976.

Review Denied June 2, 1976.

Moore & Romley by Elias M. Romley and Arthur E. Romley, Phoenix, for appellants.

Rawlins, Ellis, Burrus & Kiewit, by Chester J. Peterson, Phoenix, for appellee.

OPINION

HAIRE, Chief Judge, Division 1.

The questions raised on this appeal concern the propriety of the granting of a preliminary injunction by the trial court in litigation in which the plaintiff-appellee sought to enforce its alleged rights in parking area easements granted pursuant to written agreements entered into between the owners of three parcels of real property.

Prior to October 31, 1950, the Carnation Company was the owner of land which was subsequently divided into the three parcels involved. As a part of a plan to sell two parcels of the property and retain and develop the remaining parcel, Carnation entered into a written agreement with two other parties, Bekins Van and Storage Company, and A. J. Bayless Markets, Inc. The parcels were referred to in the agreement as Tracts A, B and C. The agreement recited that Carnation was in the process of constructing a building upon Tract A, and had agreed to sell Tract B to Bekins, and Tract C to A. J. Bayless Markets, Inc. ¹ The property was situated at the northwest corner of the intersection of Central Avenue and Indian School Road in Phoenix, Arizona, and the agreement generally evidenced the intention of the parties to establish a joint parking area on that portion of the three parcels fronting on Central Avenue, reciting that the parties had agreed:

'. . . to provide for the use of their customers and patrons a parking area 120 feet in width extending from the South boundary of Tract C to the North boundary of Tract A . . ..'

Insofar as pertinent to the issues in this litigation, the specific provisions of the agreement are as follows:

'1. No building or structure of any kind shall be erected, placed, or permitted to remain upon the Easterly 120 feet of Tracts A, B and C, or either or any of said Tracts, without the written consent of the then owners of Tracts A and B and of the then owner of the Easterly 435 feet of Tract C . . ..'

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The East wall of all buildings which may hereafter be erected upon Tracts A, B and C shall be 135 feet West of the East boundary line of said Tracts.'

The next provisions of the agreement set forth the obligations of the respective parties concerning the tiling of an irrigation ditch, and the initial curbing and paving required so as to make the area usable for parking purposes. Subsequent pertinent provisions then followed:

'3. The aforesaid parking area shall conform in general appearance to the parking area in front of Third Party's No. 11 store located at the Northeast corner of Central Avenue and Roeser Road, Phoenix, Arizona, and shall be so arranged and constructed as to provide reasonable means of access thereto and therefrom from Monterosa Street, Central Avenue and Indian School Road; and said parking area shall at all times be available for use by customers, business visitors, and patrons of the parties hereto, it being expressly understood and agreed that said customers, business visitors, and patrols shall be privileged to park their motor vehicles in any part of said parking area except in the driveway referred to in the following paragraph.

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And,

'6. The foregoing restrictions and covenants shall be deemed and taken to be covenants and restrictions running with the land and shall be binding upon the present and future owners of Tracts A and B and upon the present and future owners of Tracts A and B and upon the present and future owners of the Easterly 435 feet of Tract C.'

Paragraph 5 of the agreement, while it does not directly deal with the parking area in dispute, does affect our interpretation of the extent of the rights conferred in the parking area. In general, paragraph 5 required that Carnation provide a right-of-way extending north from Indian School Road to the northwest corner of the Bekins' parcel 'in order that (Bekins) may have means of ingress and egress to and from said Tract B.' This right-of-way was to the western part of the Bekins property, and was not contiguous to, or in any way a part of, the property designated by the parties as a parking area. ²

After the execution of the 1950 agreement, Carnation built its plant and ice cream parlor on Tract A, which was the north parcel; Bekins built its warehouse and offices on the middle parcel, Tract B; and Bayless built a grocery store and shopping center on the south parcel, Tract C. The joint parking area along Central Avenue, extending from Indian School Road on the south to Monterosa Street on the north, was developed and apparently used as contemplated by the parties, without significant change or problem until the year 1968.

In 1968, Bayless demolished its grocery store and shopping center on the south parcel because of structural defects which made the buildings unsafe and dangerous. Until the Bayless buildings were demolished in 1968, Bekins found the area in front of its building entirely adequate for its customer parking. During the pre-1968 period Bekins did not allow its employees to park in front of the Bekins building in the joint parking area. After the Bayless Grocery Store closed in 1968, Bekins relaxed its rules and thereafter did permit its employees to park in the joint area. Even so, the parking area in front of the Bayless property was not needed by Bekins, except for auction sales conducted by Bekins approximately once every nine months.

Subsequent to 1968, and prior to 1971, problems arose for Bekins because too many strangers (individuals not customers of Bayless, Bekins or Carnation) were parking in the joint parking area. These strangers were overflowing from the southern part of the joint parking area, which was in front of the then vacant Bayless parcel, into the parking area in front of Bekins. At one time the Bekins manager contacted a Bayless representative concerning these problems and suggested that Bayless ought to put in some concrete bumper stops so as to make the parking area in front of the Bayless property separate from the parking area in front of the Bekins property, preventing any crossover. No decision was made on this suggestion. Shortly thereafter, the Bekins manager advised the Bayless representative that he had installed a sign in the parking area in front of the Bekins building, and that he thought that the sign would take care of the problem. That sign, which remained on the property until after the commencement of this litigation, read as follows:

'BEKINS CUSTOMERS AND EMPLOYEES PARKING ONLY. ALL OTHERS WILL BE TOWED AWAY'

In July 1971, Bayless entered into a lease agreement with AMPCO Auto Parks, Inc. (AMPCO). By the terms of this agreement, that part of the joint parking area which was situated on the easterly part of the Bayless property (Tract C) was leased to AMPCO for use as a commercial pay parking lot. AMPCO thereafter began operating the parking lot and charging a parking fee to all users. A year later, AMPCO terminated its lease. During the approximately one year period of operation as a commercial parking lot, Bayless never had any complaints from Bekins concerning that use, except concerning truck access, which complaints will be discussed in more detail later in this opinion. Also during that period, it appears that any customers of Bekins who might have used the AMPCO parking area during one of Bekins infrequent auction sales, paid AMPCO the required parking fee.

Against the above background, we now consider the facts which directly led to the present litigation. In January 1973, Bayless commenced negotiations with appellant Eller Outdoor Advertising Company of Arizona for a lease of the easterly part of Tract C, including that portion of Tract C which was a part of the joint parking area. The lease which finally evolved was dated May 8, 1973, and covered the east 150 feet of Tract C. The lease provided for the construction of a 'mini-park' in conjunction with use by Eller for the purpose of installing two commercial advertising billboards.

In April 1973, prior to the execution of the lease, a representative of Eller went to the Bekins office seeking information about the lights which were on the Bayless property. A Mr. Papo was introduced to him as the foreman or superintendent of the warehouse. The Eller representative explained to Papo Eller's plans to place advertising signs on the Tract C parking area, and that a mini-park was to be developed there. No objection was expressed on Bekins' part, although Mr. Papo expressly voiced the opinion that some opposition might be encountered from Carnation because of some prior agreement. ³ After hearing this, the Eller representative contacted Bayless' counsel and was advised to the effect that counsel considered the agreement no longer binding as to this property. The parties proceeded on that assumption. The evidence also disclosed that prior to April 30, 1973, the president of Bekins was advised by his local manager of the Bayless and Eller plans.

On May 15, 1973, Eller made a sawcut in the asphalt parking area surfacing along the common boundary line between the Bekins and Bayless properties. Between May 23 and May 26, the asphalt itself was removed. Although on May 23 and 24 top-level discussions were held within the Bekins organization concerning the proposed use of the property by Eller and Bayless, no objection was made known to Eller or Bayless concerning the proposed use until June 13, 1973, when Bekins' local c...