Hunt v. Richardson

• Decision Date: 31 July 2007
• Docket Number: No. 1 CA-CV 06-0624.,1 CA-CV 06-0624.
• Citation: 216 Ariz. 114,163 P.3d 1064
• Parties: Thomas HUNT and Sherry Hunt, husband and wife, Plaintiffs-Appellees, v. Phillip L. RICHARDSON and Julia D. Richardson, husband and wife, Defendants-Appellants, Phillip L. Richardson and Julia D. Richardson, husband and wife, Third-Party Plaintiffs-Appellants, v. Transitional Living Corporation, an Arizona corporation, Third-Party Defendant-Appellee.
• Court: Arizona Court of Appeals

163 P.3d 1064

216 Ariz. 114

Thomas HUNT and Sherry Hunt, husband and wife, Plaintiffs-Appellees, v. Phillip L. RICHARDSON and Julia D. Richardson, husband and wife, Defendants-Appellants, Phillip L. Richardson and Julia D. Richardson, husband and wife, Third-Party Plaintiffs-Appellants, v. Transitional Living Corporation, an Arizona corporation, Third-Party Defendant-Appellee.

No. 1 CA-CV 06-0624.

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

July 31, 2007.

Keller & Hickey By Craig L. Keller, Daryl R. Wilson, Tempe, Attorneys for Plaintiffs-Appellees and Third-Party Defendant Appellee.

Combs Law Group, P.C., By Christopher A. Combs, Tiffany D. Brooks, Adam B. Decker, Phoenix, Attorneys for Defendants-Appellants and Third-Party Plaintiffs-Appellants.

OPINION

TIMMER, Judge.

¶ 1 Phillip L. Richardson and Julia D. Richardson appeal from the grant of summary judgment on claims arising out of an access easement on the Richardsons' property. To resolve this appeal, we must decide whether the easement was properly dedicated to public use and, if so, whether the Richardsons raised issues of material fact concerning their ability to lawfully erect a gate blocking access to the easement. We must also determine whether the trial court correctly ruled that the Richardsons' claims for declaratory relief relating to the parties' responsibility for the easement were non-justiciable.

¶ 2 For the reasons that follow, the trial court correctly ruled that the easement was valid and that the Richardsons' request for a declaratory judgment regarding the parties' responsibility for future injuries on the easement was non-justiciable. Because issues of material fact exist pertaining to the Richardsons' ability to erect a gate, and the Richardsons presented a justiciable claim concerning the parties' responsibility for maintaining the easement, however, we affirm in part, reverse in part, and remand for additional proceedings.

BACKGROUND

¶ 3 Larry Simpson and John Simpson owned approximately fifteen acres of property ("Parcel 1") located in Wickenburg. On December 13, 2000, Larry and John recorded with the Maricopa County Recorder a survey ("Survey") indicating the existence of a fifty-foot "Non-exclusive perpetual easement for ingress, egress and public utilities" that ran north-south along the western border of Parcel 1 and a thirty-foot easement of the same description that bisected the parcel from the western border to the eastern border, ending at an adjacent parcel of property ("Parcel 2"). (A copy of the survey map is attached as Appendix A to this decision.) On December 19, the Simpsons recorded a document (the "Easement Instrument") granting an "[e]asement for Ingress, Egress, Public and Private Utilities" to the general public as reflected in the Survey. In March 2001, Larry and John sold Parcel 1 to the Richardsons, who had previously viewed the Survey.

¶ 4 After the Richardsons took possession of Parcel 1, they widened and paved the north-south portion of the easement, which had been a dirt road, and constructed a fence alongside at the forty-foot mark. According to the Richardsons, traffic on the road increased thereafter. The Richardsons replaced an older gate existing at the northern end of the road and installed an automated gate.

¶ 5 Aimee Simpson, as general partner of Simpson Cattle Co. Limited Partnership, Larry and his wife, Sharon Simpson, sued the Richardsons on March 17, 2004, for interference with their easement rights due to construction of the fence and gate. These plaintiffs owned properties contiguous to Parcel 1. The parties eventually filed cross-motions for summary judgment, and the trial court ruled as a matter of law on April 6, 2005, that the easement was valid but concluded that factual issues remained concerning the necessity of the fence for use of Parcel 1 and whether the fence encumbered the easement (the "2005 Ruling").

¶ 6 Thereafter, Thomas and Sherry Hunt, who had purchased Parcel 2, intervened as plaintiffs in the lawsuit. The Hunts alleged that the Richardsons had interfered with the Hunts' easement rights because the fence and the gate restricted access across the easement. Following an evidentiary hearing, the Hunts obtained a temporary restraining order ("TRO") requiring the Richardsons to leave the gate open during the pendency of the litigation.

¶ 7 Meanwhile, the Richardsons filed a counterclaim against the plaintiffs and a third-party complaint against John Simpson and Transitional Living Corporation ("Transitional Living"). Transitional Living owned other property adjacent to Parcel 1 ("Parcels 3, 4, and 5"). Among other things, the Richardsons challenged the validity of the easement and, alternatively, asked for a judgment declaring that the owners of parcels 2-5 shared responsibility for maintaining the easement and liability for any future injuries suffered due to poor maintenance. Following cross-motions for summary judgment, the trial court again ruled that the easement was valid, entered a permanent injunction requiring removal of the fence and gate, denied declaratory relief to the Richardsons, and awarded attorneys' fees to the Hunts and Transitional Living pursuant to Arizona Revised Statutes ("A.R.S.") section 12-341.01(A) (2003). The court subsequently denied the Richardsons' motion for reconsideration. After entering judgment pursuant to Arizona Rule of Civil Procedure 54(b), this appeal followed.¹

¶ 8 We review de novo the entry of summary judgment, viewing the evidence in the light most favorable to the Richardsons as the non-prevailing parties. L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180, 939 P.2d 811, 813 (App.1997). The court properly entered summary judgment for the Hunts and Transitional Living if no genuine issues of material fact existed, and they were entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(c); Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990).

DISCUSSION

I. Validity of easement

¶ 9 The Richardsons first argue the trial court erred by ruling as a matter of law that the easement was valid because (A) the Easement Instrument failed to comply with the requirements applicable to deeds, and (B) the easement did not constitute a common law dedication to the public. We address each contention in turn.

A. Deed requirements

¶ 10 The Richardsons contend the Easement Instrument was invalid as it failed to comply with two requirements applicable to property deeds: the existence of a non-fictitious grantee and valid delivery. The underlying premise of the Richardsons' contention is that the requirements for deeding title to real property must be satisfied in order to expressly grant an easement. We reject this premise.

¶ 11 Scruby v. Vintage Grapevine, Inc., 37 Cal.App.4th 697, 43 Cal.Rptr.2d 810 (1995), which the Richardsons cite to support their argument, merely noted that when construing the language of an express grant of an easement, the court should follow rules applicable to construing the language of property deeds. Id. at 702, 43 Cal.Rptr.2d 810. That court did not hold that formal requirements for transferring title to property must be met in order to grant an easement. Indeed, as we explain, see infra ¶¶ 12-13, it is not necessary to follow such requirements when making a common law dedication of an easement to the public. For this reason alone, we reject the Richardsons' argument without addressing whether the Easement Instrument met the requirements for a property deed.

B. Common law dedication

¶ 12 Under the common law, an owner can dedicate real property to a proper public use. Pleak v. Entrada Property Owners' Ass'n, 207 Ariz. 418, 421, ¶ 8, 87 P.3d 831, 834 (2004) (citing Restatement (Third) of Property: Servitudes ("Restatement") § 2.18(1) (2000)). The dedication allows the public to acquire an easement to use the property for specified purposes while fee title remains with the party making the dedication. Pleak, 207 Ariz. at 421, ¶ 8, 87 P.3d at 834. It is well settled that roadway easements for public use may be created by common law dedication. Id. at 421, ¶ 9, 87 P.3d at 834.

¶ 13 To be effective, the 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. No magic words are required to dedicate land to public use; any full demonstration of the donor's intent to make the dedication is sufficient. Id. at 424, ¶ 21, 87 P.3d at 837.

¶ 14 The Richardsons do not dispute that a valid offer to dedicate was made. Rather, they contend that neither the Town of Wickenburg nor any other governmental entity accepted the dedication, as required by law. The Richardsons point out that the Town expressly rejected the dedication by expressing its lack of interest in using or maintaining the easement. The Hunts and Transitional Living respond that, as set forth in the supreme court's decision in Pleak, it is unnecessary for a governmental entity to formally accept a dedication in order to validate that dedication. We agree with the Hunts and Transitional Living.

¶ 15 In Pleak, owners of the servient estate burdened by an easement argued that an offer to dedicate a roadway and utility easement for public use could not be accepted by the general public absent use by the general public. Id. at 424, ¶ 22, 87 P.3d at 837. The supreme court disagreed, holding that the principles applicable to common law dedications of parks apply to common law dedications of roadway easements. Id. at 424, 425, ¶¶ 23, 26, 87 P.3d at 837, 838. Thus, a "sale of lots referencing a recorded plat containing the dedication constitutes an `immediate and irrevocable' dedication." Id. at 424, ¶ 23, 87 P.3d at 837 (citing County of Yuma v. Leidendeker, 81 Ariz. 208, 213, 303 P.2d 531, 535 (1956)). It is undisputed that the Richardsons, Hunts, and Transitional Living purchased their properties with reference to the...