City Of Chandler v. Ariz. Dep't Of Transp.

• Decision Date: 20 May 2010
• Docket Number: No. 1 CA-CV 09-0392.,1 CA-CV 09-0392.
• Citation: 231 P.3d 932,224 Ariz. 400
• Parties: CITY OF CHANDLER, an Arizona municipal corporation, Plaintiff/Appellant,v.ARIZONA DEPARTMENT OF TRANSPORTATION, an Agency of the State of Arizona, Defendant/Appellee.
• Court: Arizona Court of Appeals

224 Ariz. 400

231 P.3d 932

CITY OF CHANDLER, an Arizona municipal corporation, Plaintiff/Appellant,v.ARIZONA DEPARTMENT OF TRANSPORTATION, an Agency of the State of Arizona, Defendant/Appellee.

No. 1 CA-CV 09-0392.

Court of Appeals of Arizona,

Division 1, Department A.

May 20, 2010.

COPYRIGHT MATERIAL OMITTED

Mary Wade, Chandler City Attorney by James R. Cairns, Assistant City Attorney, Chandler, Attorneys for Plaintiff/Appellant.

Terry Goddard, Attorney General by James R. Redpath, Assistant Attorney General, Ron J. Aschenbach, Assistant Attorney General, Phoenix, Attorneys for Defendant/Appellee.

OPINION

PORTLEY, Judge.

¶ 1 This opinion addresses whether Plaintiff City of Chandler (the “City”) is required, as the trial court found, to pay the costs of relocating its utility lines under a roadway that had been dedicated to the public. The City challenges the entry of summary judgment in favor of Defendant Arizona Department of Transportation (“ADOT”). For the following reasons, we affirm the judgment of the trial court.

BACKGROUND AND PROCEDURAL HISTORY

¶ 2 The City owns several water and sewer utility lines under McQueen and Willis Roads in an unincorporated portion of Maricopa County (the “County”). Segments of the utility lines needed to be relocated in order to construct a portion of the Loop 202 Santan Freeway and an interchange at McQueen Road. Both ADOT and the City thought the other should be responsible for relocation costs. To avoid any delay in construction, however, the parties agreed that the City would advance the costs, and ADOT would reimburse the funds if the City prevailed in subsequent litigation.

¶ 3 The City sued ADOT on June 23, 2003, and sought a declaration that ADOT was required to reimburse it for the relocation costs. The City alleged that it had prior rights in the property, and, alternatively, that it had acquired a prescriptive easement to use the property for its utilities.

¶ 4 Both parties moved for summary judgment in June 2008. After oral argument, the trial court concluded that “[the City] did not have prior rights against Maricopa County or ADOT,” and granted ADOT's motion. After the court entered a signed judgment on May 5, 2009, the City appealed. We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21 and -2101(B) (2003).

DISCUSSION

¶ 5 The City argues that the trial court erred because it, not ADOT, was entitled to summary judgment. We review a grant of summary judgment de novo and view the facts in the light most favorable to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12, 69 P.3d 7, 11 (2003). Summary judgment is appropriate “if the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). The determination of whether a genuine issue of material fact exists is based on the record made in the trial court. Phoenix Baptist Hosp. & Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292, 877 P.2d 1345, 1348 (App.1994).

A. Maricopa County's Property Interest

¶ 6 We begin by considering the specifics of the property interest the County, on behalf of the State, acquired in the pertinent roadways. The facts relevant to this inquiry are uncontested.

¶ 7 The Mesa Improvement Company was formed on November 11, 1904, to “reclaim, improve and develop lands for purposes of colonization, farming, stock raising, sale or other purposes.” The company changed its name to the Chandler Improvement Company on January 8, 1913.

¶ 8 Between 1913 and 1917, the Chandler Improvement Company deeded six properties in the vicinity of what is now the intersection of McQueen and Willis Roads to private parties. The deeds conveyed the parcels subject to limitations that allowed for the establishment of a north-south road (McQueen) and an east-west road (Willis). Although the language used in each deed was slightly different, each conveyance “except[ed] thirty-three (33) feet on [the section lines] for road purposes.” ¹ The County subsequently recorded plats for Willis and McQueen Roads, and the Board of Supervisors declared the resulting sixty-six-foot rights-of-way as public highways in 1917.

¶ 9 “Dedication is the intentional appropriation of land by the owner to some proper public use.” Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 287, 179 P.2d 437, 439 (1947) (citations omitted). Property may be dedicated pursuant to statute (a statutory dedication) or by action of the common law (a common law dedication). Pleak v. Entrada Prop. Owners' Ass'n, 207 Ariz. 418, 420-21, ¶¶ 6, 8, 87 P.3d 831, 833-34 (2004). Whether by common law or by statute, a dedication, once perfected, is irrevocable. Thorpe v. Clanton, 10 Ariz. 94, 99-100, 85 P. 1061, 1062 (1906).

¶ 10 The doctrine of common law dedication has long been applied to roadway easements for public use in Arizona. See Pleak, 207 Ariz. at 421, ¶ 9, 87 P.3d at 834. To be effective, a dedication must include an offer by the landowner to dedicate, and acceptance by the general public. Id. at 423-24, ¶ 21, 87 P.3d at 836-37. “The general rule ... is [that] ... [n]either a written grant nor any particular words, ceremonies, or a form of conveyance, are necessary to render the act of dedicating land to public uses.... Anything which fully demonstrates the intention of the donor and the acceptance by the public works the effect.” Allied, 65 Ariz. at 287, 179 P.2d at 439 (internal citation and quotation omitted). When a common law dedication occurs, the public acquires an easement to use the property for the specific purpose, but fee ownership remains with the dedicator. Pleak, 207 Ariz. at 421, ¶ 8, 87 P.3d at 834.

¶ 11 Here, we accept the parties' agreement that the conveyances resulted in common law dedications of portions of McQueen and Willis Roads. The parties do not dispute that valid offers to dedicate were evident from the deed language,² or that the County properly accepted the roadway dedications for the public benefit. Consequently, the County acquired roadway easements in the vicinity where the Willis and McQueen rights-of-way intersect. ³

B. Scope of the County's Easements

¶ 12 The City argues that, by virtue of the common law dedications, the County acquired “surface easement[s] to use the intersection property” with “fee title to that property remain[ing] with the private entit[ies] that dedicated the easement.” The City contends that the County's easements “w[ere] limited to the traveling public's right to use McQueen and Willis Roads.” Although the City correctly argues that the common law dedication does not result in fee ownership, the County's interest was not limited to a “surface easement.”

¶ 13 Generally, a roadway easement includes any subsurface rights incident to use of the surface, such as a foundation for the surface or drainage systems, and substantial rights in the subsurface for purposes of utilities. See City of Bisbee v. Ariz. Water Co., 214 Ariz. 368, 374-76, ¶¶ 15-27, 153 P.3d 389, 395-97 (App.2007) (holding that public policy prohibits the reservation of underground street rights for utility purposes when a property owner dedicates land for roadway purposes, and concluding that the term “ ‘streets' includes ‘so much beneath the surface as is necessary for a foundation for the surface and for water mains, gas pipes, sewer pipes and conduits of various sorts.’ ” (quoting 10A Eugene McQuillin The Law of Municipal Corporations § 30.06, at 237 (3d ed. 1999))). Other jurisdictions have taken a similar position. See Bentel v. Bannock County, 104 Idaho 130, 656 P.2d 1383, 1386 (1983) (concluding that easements for public streets or roads “include, as a general matter, the right to install pipelines beneath the surface area of the road”); Bolinger v. City of Bozeman, 158 Mont. 507, 493 P.2d 1062, 1065-66 (1972) (holding that a public easement in a county road is not restricted to the use of the roadway for vehicular traffic, but may be used for constructing sewers and laying pipes for the transmission of gas, water, and the like for public use); Minneapolis Gas Co. v. Zimmerman, 253 Minn. 164, 91 N.W.2d 642, 649 (1958) (stating that “the use of rights-of-way by utilities for locating their facilities is one of the proper and primary purposes for which highways are designed even though their principal use i[s] for travel and the transportation of persons and property”); Denver Circle R. Co. v. Nestor, 10 Colo. 403, 15 P. 714, 722 (1887) (holding that the ordinary use of streets “includes such modes and means of passage upon and over the streets as are usual in cities, and such additional uses as the health and convenience of the city, in view of the extent of its population, may require; as the construction of sewers, the laying down of gas and water pipes, the grading and paving of the streets, and the like”); Harlingen Irrigation Dist. Cameron County No. 1 v. Caprock Commc'ns Corp., 49 S.W.3d 520, 527 (Tex.App.2001) (“Roadway easements include the use of the subsurface for sewers, pipelines and other methods of transmission and communication that serve the public interest.”); Bivens v. Mobley, 724 So.2d 458, 465, ¶ 29 (Miss.Ct.App.1998) (holding that the installation of a water line was within the scope of a roadway easement because an easement “for ingress and egress to a tract on which a home is to be built means more than a surface roadway”-it also includes ingress and egress for other necessities).

¶ 14 By accepting the dedication from the Chandler Improvement Company, the County, on behalf of the State and the public, acquired all rights incident to roadway use, including substantial rights in the subsurface.

C. The City Establishes Its Utilities

¶ 15 Although the McQueen and Willis intersection is outside the City's southern boundary, the City nevertheless placed the...