Bernal v. Loeks, 2 CA-CV 99-0107.

• Decision Date: 16 March 2000
• Docket Number: No. 2 CA-CV 99-0107.,2 CA-CV 99-0107.
• Citation: 997 P.2d 1192,196 Ariz. 363
• Parties: Arthur S. BERNAL, a married man dealing with his sole and separate property, Plaintiff/Appellant, v. Ronald LOEKS and Donna Loeks, husband and wife; Gary E. McCusker and Kerry McCusker, husband and wife, Defendants/Appellees.
• Court: Arizona Court of Appeals

997 P.2d 1192

196 Ariz. 363

Arthur S. BERNAL, a married man dealing with his sole and separate property, Plaintiff/Appellant, v. Ronald LOEKS and Donna Loeks, husband and wife; Gary E. McCusker and Kerry McCusker, husband and wife, Defendants/Appellees.

No. -0107.

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

March 16, 2000.

Cruse, Firetag & Bock, P.C. by Jules I. Firetag and Paul F. Dowdell, Phoenix, Attorneys for Plaintiff/Appellant.

William F. Doran, Phoenix, Attorney for Defendants/Appellees.

Mariscal, Weeks, McIntyre & Friedlander, P.A. by Gary L. Birnbaum and Michael S. Rubin, Phoenix, Attorneys for Amicus Curiae Land Title Association of Arizona.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Arthur Bernal appeals from the trial court's order granting summary judgment in favor of the defendants/appellees Ronald and Donna Loeks and Gary and Kerry McCusker on his claim that they had unlawfully denied him access to rights-of-way that had been reserved on their properties in federal land patents. We reverse.

Facts and Procedural History

¶ 2 We view the facts in the light most favorable to the party against whom summary judgment was entered. United Bank of Arizona v. Allyn, 167 Ariz. 191, 805 P.2d 1012 (App.1990). Bernal and his neighbors the Loekses and McCuskers all own parcels of land that had originally been acquired from the federal government by land patents pursuant to the Small Tract Act, 43 U.S.C.A. §§ 682a through 682e (repealed 1976). Bernal's property is bounded on the east by the north-south trending Cedar Drive. His house faces this roadway, which provides access to his property. The back, west boundary of Bernal's property abuts the east boundary of the Loekses' property which, in turn, is bounded on the north by the McCuskers' property. The Loekses' and McCuskers' properties are bounded on the west by the north-south trending Meridian Road; this roadway provides access to their properties. Bernal's property is bisected by a north-south trending arroyo. He can access the west half of his property by using a foot bridge that spans the wash. However, he would like to keep horses on the west section, access to which can be readily gained only west of the arroyo.

¶ 3 Each of the patents for lots of land from which the parties' parcels were subdivided provides that the patent "is subject to a right-of-way not exceeding 33 feet in width, for roadway and public utilities purposes, to be located along" three of the lot's boundaries. Hence, each of the parties' parcels are subject to a right-of-way along two of its boundaries. These rights-of-way and others in the area form an "H" pattern, with the uprights representing Cedar Drive and Meridian Road and the crossbar representing a yet-to-be-built connecting roadway, prospectively named Moonvista Street. Bernal's and the Loekses' parcels lie directly below the crossbar and the McCuskers' parcel lies directly above.

¶ 4 In April 1998, Obie O. Rooker, the previous owner of Bernal's parcel, brought an action seeking to quiet title to, and to enjoin the Loekses and the McCuskers from blocking his access to, the rights-of-way along, respectively, the northern and southern boundaries of their properties, which together form a portion of the prospective Moonvista Street. Rooker averred that his property was in escrow, the closing of which was dependent upon his acquiring physical access to the western portion of his property. He claimed that the Loekses had erected a fence across, and had deposited piles of soil, rocks, and debris on, the rights-of-way, which prevented him from acquiring such access. Shortly thereafter, Bernal acquired ownership of the parcel and was substituted as the plaintiff in the action.

¶ 5 In December 1998, Bernal moved for summary judgment, claiming that he had "access rights" to the "right-of-way easements" on the defendants' lands that had been reserved in the federal patents. He argued that, because the reservations of rights-of-ways for roadway purposes in the patents "were inserted ... for the mutual benefit of the grantees and the general public by providing [property owners in the vicinity of lands subject to the rights-of-way] a means of acquiring ingress and egress" to their property, the federal government, as grantor, must have intended that those property owners could use the rights-of-way, even if, as here, the state or local government had not yet constructed the roadways. The trial court disagreed, finding that:

... although the patent reservation of an easement of 33 feet in width [on the parties' properties] states it is for roadway and public utilities [purposes], it is well established case law that the legislative intent of creating the reserved easement was to preserve for future public action the ability to utilize it for public roads and public utilities; that, although Pinal County accepted all such reserved easements by resolution of the Board of Supervisors, ... the easements in question (which are part of the proposed Moonvista [Street]) have not been dedicated and established by Pinal County as a public roadway;

That there is no private right to enforce the easements reserved by the Federal patents and the subsequent deeds acquired by the parties and their successors in interest.

The trial court therefore denied Bernal's motion for summary judgment and granted summary judgment for the defendants. It denied Bernal's motion for a new trial, and this appeal followed.

Standard of Review

¶ 6 Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c), 16 A.R.S. See Allyn. When reviewing de novo the trial court's grant or denial of summary judgment, we apply the same standard as it used in ruling on the summary judgment motion in the first instance. Id.

Discussion

¶ 7 The Small Tract Act provided for the sale or lease of small tracts of federal land "for residence, recreation, business, or community site purposes." § 682a. It did not specifically provide for the reservation of rights-of-way in the land patents but simply permitted the Secretary of the Interior to reserve in the patents "such rules and regulations" as he or she deemed necessary. Id. Bernal argues the trial court erred in holding that the reservation of rights-of-way "for roadway purposes" in the patents was intended solely for the eventual construction of "public," that is, government built and maintained, roadways and that nearby property owners have no private right "to use or enforce" the rights-of-way. For the following reasons, we agree with Bernal.

¶ 8 Initially, we find misplaced the trial court's reliance on case law to support its conclusion that private parties could not use or enforce the right-of-way provisions reserved in the federal patents. The handful of cases that have addressed these provisions, two of which are from Arizona, were all brought or defended by either a government entity seeking to build a public roadway, City of Phoenix v. Kennedy (Kennedy I), 138 Ariz. 406, 675 P.2d 293 (App.1983), or a utility company seeking to install a public utility. Mountain States Telephone and Telegraph Co. v. Kennedy (Kennedy II), 147 Ariz. 514, 711 P.2d 653 (App.1985).¹ See also State v. Alaska Land Title Ass'n, 667 P.2d 714 (Alaska 1983)

; State Dep't of Highways v. Green, 586 P.2d 595 (Alaska 1978); State Dep't of Highways v. Crosby, 410 P.2d 724 (Alaska 1966). Accordingly, none had occasion to address whether nearby property owners could use and enforce the rights-of-way to secure access to properties located in the vicinity of parcels subject to them. Not only did the...