City of Scottsdale v. Thomas, 2
| Decision Date | 14 April 1988 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 156 Ariz. 551,753 P.2d 1207 |
| Parties | CITY OF SCOTTSDALE, a municipal corporation, Plaintiff/Appellant, v. Kurt B. THOMAS, Richard D. Cantin and Bonnie A. Cantin, husband and wife; Dennis M. Mastro and Jane Mastro, husband and wife; Noel E. Cullison and Barbara Cullison, husband and wife; Charles I. McCluey and Linda C. McCluey, husband and wife; Edward E. Burr, Trustee; and Edward E. Burr and Jane Doe Burr, husband and wife; Victor La Tempa and Debra La Tempa, husband and wife, Defendants/Appellees. 88-0095. |
| Court | Arizona Court of Appeals |
The City of Scottsdale appeals from an order denying its request for a mandatory injunction to compel removal of encroachments on an easement owned by the city over a portion of appellees' property. We reverse.
In July 1967, the city approved a plat which established the subdivision of Paradise Valley Farms. Included in the plat was the dedication of an easement to the city along the easterly 40 feet of the subdivision "for flood protection and roadway purposes." In October 1982, the city council adopted a resolution which abandoned 25 feet of the easement because it was "no longer necessary for public use as roadway." Attached to the resolution, and by reference made a part thereof, is a listing of the revised legal descriptions of the affected homeowners' properties showing the remaining 15-foot easement. Each revised description states that the 15 feet is reserved "as an equestrian easement." There is no mention of this reservation in the resolution abandoning the 25 feet.
For some years, the city had channels cut in the area for flood control purposes, but those channels no longer exist and are no longer necessary. The city has never maintained the easement, and some of the appellees have built fences, walls and corrals in the easement. The city sent letters seeking to have the encroachments removed and filed suit when the letters produced no results.
At the evidentiary hearing on the request for an injunction, the city produced evidence that it had specific design criteria for equestrian trails, that the city presently maintains about three miles of equestrian trails and that the proposed trail would be maintained if the department were instructed to do so. Appellees presented testimony that the homeowners did not want an equestrian trail on the easement, that they were concerned about maintenance of the trail and insurance coverage in the event of injuries or damage caused by the trail. The trial court denied the request for injunction, finding that the city had changed the purpose of the easement when it abandoned the 25-foot strip in 1982 and that appellees did not consent to the change. The court, in noting that a significant change cannot be made in the use of an easement without the consent of the holder of the servient estate, found that:
The City's argument is a subjective one opining that the burden of being near to a roadway would be greater than that of being next to an equestrian path.
The homeowner's [sic] subjective opinion is that the equestrian path places a 'greater'...
To continue reading
Request your trial
-
Kadish v. Arizona State Land Dept.
...to determine whether either argument provides a legal basis for the trial court's denial of fees. See City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (App.1988). If neither of those issues supplies a legal basis for denying the fee application, we must examine whether ......
-
Rotter v. Coconino County
...Because the trial court's ruling was a conclusion of law, this court is not bound by the conclusion. City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (1988). We conclude that the trial court correctly determined that the statute allows expansion of a nonconforming busin......
-
Hunt v. Richardson
...so far as the exercise of such right is inconsistent with the purpose and character of the easement."); City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (App.1988) ("[T]he owner of the easement cannot materially increase the burden of the servient estate or impose there......
-
Arizona Biltmore Estates Ass'n v. Tezak
...1089. As a result, the Court of Appeals is not bound by conclusions of law reached by the trial court. City of Scottsdale v. Thomas, 156 Ariz. 551, 552, 753 P.2d 1207, 1208 (App.1988). Article XI, Section 6, of the deed restrictions provides in relevant No trailer, camper, boat or similar e......