Potters Clay Realty, L.L.C. v. Kummer
| Decision Date | 06 May 2014 |
| Docket Number | No. 2 CA-CV 2013-0100,2 CA-CV 2013-0100 |
| Parties | POTTERS CLAY REALTY, L.L.C., AN ARIZONA LIMITED LIABILITY COMPANY; AND ELDERCARE FOR LIFE, INC., AN ARIZONA NON-PROFIT CORPORATION, Plaintiffs/Appellees/Cross-Appellants, v. GERALD A. KUMMER AND KUNIE M. KUMMER, CO-TRUSTEES OF THE GERALD A. KUMMER AND KUNIE M. KUMMER REVOCABLE LIVING TRUST DATED 9 MARCH, 2004, Defendants/Appellants/Cross-Appellees. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Cochise County
The Honorable Charles A. Irwin, Judge
VACATED IN PART; AFFIRMED IN PART; REMANDED TO
CONFORM JUDGMENT
Stachel & Associates, P.C., Sierra Vista
By Robert D. Stachel Jr. and Kaycee Scarr
Counsel for Plaintiffs/Appellees/Cross-Appellants
Gust Rosenfeld, P.L.C., Tucson
By Mark L. Collins and Robert M. Savage
Counsel for Defendants/Appellants/Cross-Appellees
MEMORANDUM DECISIONJudge Miller authored the decision of the Court, in which Chief
¶1 Defendants Gerald A. Kummer and Kunie M. Kummer, as co-trustees of the Gerald A. Kummer and Kunie M. Kummer Revocable Living Trust Dated March 9, 2004 (collectively Kummers) appeal the trial court's judgment entered after a bench trial that plaintiffs Potters Clay Realty, L.L.C. and Eldercare for Life Inc. (collectively Potters Clay) had an easement for ingress, egress, and utilities over a twelve-foot-wide portion of the Kummers' property. Potters Clay cross-appeals the court's denial of their request for attorney's fees. For the following reasons, we vacate the judgment in part and remand for the court to conform the judgment granting an easement by prescription only, consistent with this decision.
¶2 We view the facts in the light most favorable to sustaining the trial court's ruling. IB Property Holdings, LLC v. Rancho Del Mar Apartments Ltd. P'ship, 228 Ariz. 61, ¶ 2, 263 P.3d 69, 71 (App. 2011). Those facts, however, defy brief summary because there were multiple transfers of affected and contiguous properties among many parties, as well as various straw-man transactions. Inits broadest context, this easement dispute originated with an undivided forty-acre square parcel with a ranch house near the center. See Appx. 1 (Undated Cochise County Assessor's Map). In 1985, the owners sold the northern portion by a recorded conveyance that included a twenty-four foot "non-exclusive easement for ingress, egress and utilities" located near the division of the northern and southern portions of the property, described exclusively by metes and bounds (1985 Easement). A driveway was marked by fences to the north and south by 1988, but it appears the twenty-four foot easement as described did not precisely match the location of the driveway and fences. See Appx. 2 (2011 As-Built Survey). Both fences were too far north by nine feet, and about half of the width of the roadway ran north of the metes and bounds description. The northern and southern portions of the original property were subsequently divided into various parcels. The 1985 Easement is not in dispute, nor are several other conveyances of contiguous properties contested. The dispute is over the land where the fences and road were actually built (Disputed Easement).1 We turn to those conveyances that were the subject of the one-day bench trial.
¶3 In late 1993, the Kummers2 purchased two adjacent lots on the northern portion of the original property, known together as Parcel 6Y. The Kummers purchased the properties from Anna Zitzelsberger, who had received them from Friedrich and Ursula Schiller in June 1993.3 In the Schiller-Zitzelsberger deed, theSchillers transferred two lots "[r]eserving unto the Grantors, their heirs, successors and/or assigns, an easement for ingress, egress and utilities over the South 12.00 feet herein" (1993 Reservation). This reservation nearly aligned with the location of the northern half of the Disputed Easement, including the 1988 fence and the roadway, which were still in place when the Kummers obtained possession.
¶4 In 1994, the Schillers recorded a stand-alone easement (1994 Easement), granting several nearby property owners the benefit of the 1993 Reservation included in the Schiller-Zitzelsberger deed. One set of property owners, John and Yolanda Fritz, had purchased the old ranch house west of the Kummers' property in 1988 (Parcel 6F). From the time they purchased the parcel, the Fritzes, and later their tenants, used the driveway and maintained the Disputed Easement, clearing weeds and trimming trees "[f]rom fence-to-fence." When Cochise County requested a name for the driveway that had turned into a road, the Fritzes called it Labrador Lane.
¶5 In January 2005, the Fritzes sold their property to Nathan S. Yarbrough and Monica R. Vandivort, who leased it to named plaintiff ElderCare for Life. Yarbrough and Vandivort conveyed the property to their limited liability company, Potters Clay Realty, just before trial. Yarbrough, Vandivort, and Potters Clay Realty continued to use Labrador Lane, maintained the Disputed Easement by mowing and laying out gravel fence to fence, and buried a water line parallel to the road when the well on their property ran dry.
¶6 In 2010, the Kummers removed the 1988 fence north of Labrador Lane and erected another fence approximately nine feet south, near the location of the original 1985 Easement, reducing the width of the road and blocking access to Potters Clay's water line. Potters Clay sought to quiet title to the easement, on the theories of express, implied, and prescriptive easements. The trial court found that Potters Clay had an express easement; alternatively, it found an implied or prescriptive easement over the south twelve feet of the Kummers' property.
¶7 Although we ultimately uphold the judgment on the prescriptive easement theory only, we briefly address the other theories and our decision to remand for a new judgment. First, at oral argument, counsel for the Kummers conceded that the express easement theory ultimately failed because there was not sufficient evidence to show an ownership interest by the Schillers in Parcel 6F or the intent for an easement to benefit other property owners. We agree. As to the implied easement theory, both parties conceded at oral argument that, aside from the deed conveying the 1985 Easement, there was no evidence in the record regarding the use of the easement or the Potters Clay property prior to the Fritzes' purchase of it in 1988. On this record we cannot discern, among other things, whether the road and fence were built to match the metes and bounds description of the 1985 Easement, or vice versa; therefore, we cannot infer whether at the time Parcel 6F was severed from the rest of the northern potion the parties intended an easement over the Disputed Easement, or intended to rely on the metes and bounds description of the 1985 Easement in the chain of title. See, e.g., Koestel v. Buena Vista Pub. Svc. Corp., 138 Ariz. 578, 580, 676 P.2d 6, 8 (App. 1984) (); see also Restatement (Third) of Property: Servitudes, § 2.12 (2000) (). We therefore vacate the judgment as to the express and implied easement theories.
¶8 Finding no express or implied easement, we address the Kummers' argument that the trial court erred in finding a prescriptive easement. The Kummers contend the use of the Disputed Easement was permissive rather than hostile; alternatively, even if there is a prescriptive easement, they argue the court erred in concluding it included all twelve feet of the south end of the Kummers' property.
¶9 "[A] party may obtain an easement by prescription if it can establish that 'the land in question has actually and visibly beenused for ten years, . . . the use began and continued under a claim of right, and the use was hostile to the title of the true owner.'" Tumacacori Mission Land Dev., Ltd. v. Union Pac. R., 228 Ariz. 100, ¶ 5, 263 P.3d 649, 651 (App. 2011), quoting Spaulding, 218 Ariz. 196, ¶ 14, 181 P.3d at 248; see also A.R.S. § 12-526 (). When a claimant shows open, visible, and continuous use of the property of another for the period of time required, the use is presumed to be hostile. Spaulding, 218 Ariz. 196, ¶ 14, 181 P.3d at 248. "There need be no ill will or intent." Rorebeck v. Criste, 1 Ariz. App. 1, 4, 398 P.2d 678, 681 (1965).
¶10 The Kummers contend Potters Clay's use of their property was permissive because the property was rural, raising the presumption that "the use of roads or paths is . . . in the nature of permissive neighborly acquiescence." The Kummers also contend they and their predecessors did not have notice of the use of the easement.
¶11 The Kummers primarily rely on England v. Ally Ong Hing, 105 Ariz. 65, 72, 459 P.2d 498, 505 (1969), for the proposition that use of rural property is presumptively permissive. In England, the defendant owned an eighty-acre parcel of land on which the plaintiff drove cattle to water them at a spring and then graze them in another area. Id. at 67-68, 72, 459 P.2d at 500-01, 505. Our supreme court held that the plaintiffs had an easement by prescription for driving the cattle to the water because a predecessor to the defendant had attended a hearing in which plaintiffs were granted water rights, and therefore had notice that the plaintiffs would have to cross the land. Id. at 72, 459 P.2d at 505. The court also found that there was no prescriptive easement for grazing because there was no proof of notice to de...
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