Bunyard v. U.S., Dept. of Agriculture, CV02-0083-PCTJAT.

• Decision Date: 09 February 2004
• Docket Number: No. CV02-0083-PCTJAT.,CV02-0083-PCTJAT.
• Citation: 301 F.Supp.2d 1052
• Parties: Kenneth M. BUNYARD and Joan Bunyard, husband and wife, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF AGRICULTURE, FOREST SERVICE, Defendant.
• Court: U.S. District Court — District of Arizona

Page 1052

301 F.Supp.2d 1052

Kenneth M. BUNYARD and Joan Bunyard, husband and wife, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF AGRICULTURE, FOREST SERVICE, Defendant.

No. CV02-0083-PCTJAT.

United States District Court, D. Arizona.

February 9, 2004.

Timothy W. Barton, Scott Alan Malm, Gust Rosenfeld PLC., Phoenix, AZ, for Plaintiffs.

Sue A. Klein, US Attorney's Office, Phoenix, AZ, for Defendant.

AMENDED ORDER

TEILBORG, District Judge.

IT IS ORDERED that the Court's Order of February 4, 2004 (Doc. # 45) is amended, effective as of the original date of the Order, to read as follows:

Pending before the Court are Plaintiffs' Motion for Summary Judgment (Doc. # 32) ("Motion") and Defendant's Response to Plaintiffs' Motion for Summary Judgment and Cross Motion for Summary Judgment (Doc. # 37) ("Cross Motion"). The Court held oral argument on January 26, 2004, and has carefully considered the parties' arguments, motions, responses, and replies. As discussed below, the Court will grant Defendant's Cross Motion in part and deny the Cross Motion in part, and grant Plaintiffs' Motion.

Background

Plaintiffs Kenneth and Joan Bunyard own five adjoining parcels of land in Navajo County, Arizona. They acquired the first parcel in 1981 and, since that time, have used the "Old Standard Mill Road" to access a nearby public roadway. Plaintiffs' five parcels are bordered on three sides by land owned by the United States of America. Defendant acquired the land through which the Old Standard Mill Road passes in May, 1965. By July of 2001, Defendant had decided to close the Old Standard Mill Road. Plaintiffs brought this suit to quiet title to an easement on the Old Standard Mill Road.

Discussion

Plaintiffs assert three counts against Defendant for access to the Old Standard Mill Road: (1) Quiet title (prescriptive easement); (2) quiet title (Rev.Stat. § 2477); and (3) quiet title (16 U.S.C. § 3210(a) ("ANILCA")). (See Amended Complaint, Doc. # 16 at 2-3.) For ease of reference, the Court's discussion of the competing motions for summary judgment will track the order of Plaintiffs' counts.

I. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, summary judgment is mandated, "... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Initially, the movant bears the burden of pointing out to the Court the basis for the motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-movant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant's bare assertions, standing alone, are insufficient to create a material issue of fact and defeat a motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505.

II. PLAINTIFFS' CLAIM OF PRESCRIPTIVE EASEMENT

Plaintiffs argue that if a prescriptive easement was established prior to the acquisition of the land in question by the United States, then Plaintiffs may bring suit to quiet title to such an easement under the Quiet Title Act, 28 U.S.C. § 2409a. (See Motion at 5-8.) In response, Defendant asserts that a prescriptive "easement cannot be claimed against the United States ...." (Cross Motion at 3.) Defendant appears to be mistaken. Cf. Michel v. United States, 65 F.3d 130, 132 (9th Cir.1995) (finding that Quiet Title Act suit for an easement over roads and trial in national wildlife refuge was not barred by statute of limitations); see also Kinscherff v. United States, 586 F.2d 159, 161 (10th Cir.1978) (easements are real property interests subject to quiet title actions).

Both parties acknowledge that, in order to maintain a claim for prescriptive easement, Plaintiffs must demonstrate that the necessary elements for a prescriptive easement "occurred prior to ownership of the property by the United States...." (Cross Motion at 3; Motion at 5.) It also appears to be uncontested by the parties that the existence of such a prescriptive easement must be determined under Arizona law.

A. Prescriptive easements under Arizona law: "To gain a prescriptive easement, a person must establish that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and [that] the use was hostile to the title of the true owner of the land." Paxon v. Glovitz, 203 Ariz. 63, 50 P.3d 420, 424 (Ariz.App.2002) (citing Harambasic v. Owens, 186 Ariz. 159, 920 P.2d 39, 40 (Ariz.App.1996)). "If the use is permissive, it cannot ripen into an easement by prescription because it is neither `hostile' nor `adverse' to the owner's title." Paxson, 50 P.3d at 424 (citing Herzog v. Boykin, 148 Ariz. 131, 713 P.2d 332, 334 (Ariz.App.1985)). In order for Plaintiffs to prevail on summary judgment, they must "make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. If Plaintiffs meet that burden, then the burden shifts to Defendant to rebut Plaintiffs' evidence.

Visible and continued use for ten years: Plaintiffs present evidence in the form of deposition testimony from Mrs. Lorene Petersen that the Old Standard Mill Road has been used since 1929. (Plaintiffs' Statement of Facts ("PSOF") at ¶ 6.)¹ Mrs. Petersen states the road was used by a number of homeowners to access their property (PSOF at ¶ 13.) Moreover, Mrs. Petersen indicates that after a nearby lumbermill closed in 1936 and neighboring homes were removed between 1936-38, her family continued to use the Old Standard Mill Road in farming operations. (PSOF at ¶ 11; Petersen Deposition at 33-34.) Mrs. Petersen also states that her family used the road openly. (Petersen Deposition at 34.) Lawrence Petersen provides a declaration in which he indicates that he recalls using the Old Standard Mill Road to access his family's property in 1950. (PSOF at ¶ 14.) Mrs. Petersen's daughter recalls the presence of the road in the 1950s. (PSOF at ¶ 15.)

Plaintiffs argue that their evidence shows use of the Old Standard Mill Road "for more than the required ten-year period following 1929." (Motion at 6.) The excerpts from Mrs. Petersen's deposition testimony provided to the Court support the contention that she used the Old Standard Mill Road in 1929 to take the school bus. (Petersen Deposition at 18, 30.) But those same excerpts do not indicate how long Mrs. Petersen continued such use. Similarly, Mrs. Petersen states that she used the road "a lot" to get to homes in the area, but does not reference any time frame for such use. (Id. at 20.) Mrs. Petersen also stated that her "father-in-law, even after those houses had moved [1936 to '38] and he farmed, he used that road to get out on when he was going to Pinedale." (Id. at 32-33.) But her deposition testimony does not indicate how long her father-in-law's use continued after the houses were moved or clearly state that such use was ongoing before such date. Finally, Plaintiffs present the statement of Mrs. Petersen's nephew, Lawrence Petersen, about using the Old Standard Mill Road in 1950. (PSOF, Ex. F at ¶ 8.) Mr. Petersen does not, however, indicate that he or his family used the road prior to that trip in 1950.

While Plaintiffs' evidence shows use of the Old Standard Mill Road during a period of more than 10-years, there are gaps in the evidence regarding the nature and frequency of such use. Before deciding whether Plaintiffs' evidence is sufficient for summary judgment, it is necessary to determine the nature and frequency of use required to establish a prescriptive easement.

The nature of use demonstrated by Plaintiffs is sufficient. See Harambasic, 920 P.2d at 40 (finding testimony that plaintiff "used the road and had never asked anyone for permission to do so" was sufficient). It does not matter that Plaintiffs have not demonstrated exclusive use of the road:

To acquire title by adverse possession, a person must demonstrate that he had exclusive possession of the property at issue throughout the ten-year period. The same showing is not required of a person seeking to establish an easement by prescription. A person may establish a prescriptive right even though other people, including the holder of fee title in the servient tenement, use the property in the same way that he does. His use need only be exclusive in the sense that it is based upon a right that he claims as an individual rather than as a member of the general public.

Ammer v. Arizona Water Co., 169 Ariz. 205, 818 P.2d 190, 194 (Ariz.App.1991) (citation omitted).²

With respect to duration, the use must be "`continued without effective interruption for the prescriptive period.'" Paxson, 50 P.3d at 426 (quoting Restatement: Servitudes, § 2.17). As discussed above, Plaintiffs' evidence shows use during a more than 10-year period but does not necessarily show that such use was...