Rodgers v. Ray, 1

• Decision Date: 03 July 1969
• Docket Number: CA-CIV,No. 1,1
• Citation: 457 P.2d 281,10 Ariz.App. 119
• Parties: Harold RODGERS, individually and on behalf of Steven Rodgers and Dennis Rodgers, his minor sons, Appellants, v. Clinton D. RAY and Carmella Ray, his wife, James W. Ray and Leah Ray, his wife, and County of Maricopa, a body politic of the State of Arizona, Appellees. 760.
• Court: Arizona Court of Appeals

Page 281

457 P.2d 281

10 Ariz.App. 119

Harold RODGERS, individually and on behalf of Steven Rodgers and Dennis Rodgers, his minor sons, Appellants, v. Clinton D. RAY and Carmella Ray, his wife, James W. Ray and Leah Ray, his wife, and County of Maricopa, a body politic of the State of Arizona, Appellees.

No. 1 CA-CIV 760.

Court of Appeals of Arizona.

July 3, 1969.

Rehearing Denied Sept. 5, 1969.

Review Denied Feb. 6, 1970.

Michael H. Lynn, Phoenix, for appellants.

Snell & Wilmer, by Roger W. Perry, Phoenix, for appellees Ray.

McKesson, Renaud & Cook, by J. Gordon Cook, Phoenix, for appellee Maricopa County.

MOLLOY, Chief Judge.

This is an appeal from a summary judgment in favor of the defendants in a personal injury action arising out of a two-car accident occurring at the intersection of two roads. The plaintiffs contend the intersection is 'blind' and sue the defendants Ray as the owners of a farm upon which it is alleged there were obstructions to vision which prevented the drivers of the two cars in question from seeing one another until they converged at this intersection. The County of Maricopa is joined as a defendant in that the streets in question are located within its boundaries.

The Rays' acreage is at the southeast corner of Rambo and Higley Roads, in a rural area of Maricopa County. Their land was, at the time of this accident in September, 1961, being used for the farming of cotton. The roads in question came together at right angles at the northwest corner of this acreage. In 1955, the Rays had created a 'tailings pond' in this northwest corner to conserve water runoff from their property, the natural drainage of the land being towards the northwest. Water collected in this pond was used for irrigation purposes. The pond was formed by earthen dikes built along both Rambo and Higley Roads for several hundred feet on both sides of this intersection. The embankments were, at the time of the accident, approximately eight feet above the natural level of the ground. According to the plaintiffs' complaint, the cars in question had paralleled these two dikes on their respective roads, each blocked from the other's view until immediately prior to entering the intersection.

The depositions which furnish the evidentiary basis for the summary judgment indicate that, at the time of this accident, neither Higley nor Rambo Road had been formally dedicated, but, by reason of long use by the public, were considered to be 66 feet in width, with 33 feet being that portion lying upon the defendants' land. ¹ Plaintiffs take the position that these were both public roads. While there is some doubt in this state as to whether a public road can be established by mere use, ² it is our view that there is sufficient evidence of a common-law dedication and acceptance here for these roads to pass muster as public roads, See Allied American Inv. Co. v. Pettit, 65 Ariz. 283, 290, 179 P.2d 437, 441 (1947), 23 Am.Jur.2d Dedication § 28, pp. 26--27, when attacked only by a motion for summary judgment.

There is no evidence in the record that the dikes constructed by the Rays were on a public right of way, though the testimony is that the embankment was constructed '(r)ight up against the 33 feet.' On appeal, the appellants pose the question for review in such fashion as to impliedly admit that the embankment in question was entirely upon the private property of the defendants Ray. ³

We first look at plaintiffs' suit against the defendants Ray to ascertain whether there was a genuine issue of fact so as to preclude summary judgment. Rule 56, R.Civ.P., 16 A.R.S. Theories of negligence and public nuisance are advanced to support the plaintiffs' claim.

As for negligence, there are three elements necessary for recovery:

'* * * (1) There must exist a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) the defendant must fail to perform that duty; and (3) an injury to the plaintiff must proximately result from such failure.' (Emphasis added) Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 333, 372 P.2d 333, 334--335 (1962).

It is our view that there is no duty upon the possessor or owner of land abutting public highways to refrain from using his land so as to obstruct a view across his property for those using the public highways. If there was allegation here that the obstructions had been created maliciously, for the express purpose of obstructing the view of travelers upon the highway, or even that the obstructions served no economic purpose, a more critical examination of the law would be necessary. But, here, we have the undisputed fact that the dikes in question served a legitimate farming purpose. If these property owners can be held liable for the obstructing of view across their land, then those who build skyscrapers on busy city streets should also be submitted to the same test, and we know of no such law.

Plaintiffs' contention appears to be sufficiently ingenious that we find few authorities specifically denying the right to recover for the obstructing of highway view by a property owner. As pertinent as any case coming to our attention is Bohm v. Racette, 118 Kan. 670, 236 P. 811, 42 A.L.R. 571 (1925), in which the court, in a syllabus written by the court, said:

'An owner of land adjoining crossing highways, along which high hedges are permitted to grow so as to obstruct the view of those who at right angles approach the corner of the land at the intersection of the highways, is not liable in damage to those who are injured in an automobile collision on the crossing of the highways.'

236 P. at 811.

In Bohm, it was accepted: 'The hedge had not been trimmed as required by law.' 236 P. at 812. Contrariwise, we know of no statute forbidding the construction complained of here.

This court recognizes, of course, that there may be liability for excavations or other artificial conditions so near to existing highways that the possessor should realize there is an unreasonable risk to others of being injured by Physical contact with such artificial condition. See § 368, Restatement (Second) of Torts. We also recognize that there may be liability for placing obstructions upon the public right of way itself. See Beltran v. Stroud, 63 Ariz. 249, 160 P.2d 765 (1945). But we see a clear demarcation between such law and that advanced by these plaintiffs to support recovery.

The plaintiffs urge that these dikes constituted a violation of certain statutory provisions, and in this area of their brief, there is a blending of negligence and public nuisance theories. The first section relied upon is A.R.S. § 28--648 which reads as follows:

'A. No person shall place, maintain or display upon or in view of any highway any Unauthorized sign, signal, marking or device which purports to be or is an imitation of or resembles an official traffic-control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic-control device or any railroad sign or signal, and no person shall place or maintain nor shall any public authority permit upon any highway Any traffic sign or signal bearing thereon any commercial advertising. This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs.

'B. Every such prohibited Sign, signal or marking is declared to be a public nuisance and the authority having jurisdiction over the highway is empowered to remove the same or cause it to be remove without notice.' (Emphasis added)

It is our view that these dikes as a matter of law do not constitute a sign, signal, marking or device. See Ashland v. Pacific Power & Light Co., 239 Or. 241, 395 P.2d 420, 397 P.2d 538 (1964).

The other statute relied upon is A.R.S. § 18--160, subsec. A(2) which reads, in pertinent part:

'A. A person who commits any of the following acts is guilty of a misdemeanor:

'2. Encroaches upon, obstructs, uses, occupies, damages or otherwise interferes with a public highway * * *'

We can see no violation of this statute in this case. These words patently apply to physical obstructions on a public highway and are not intended to cover uses made of private property such as this.

As for a public nuisance, we are of the view that this theory of recovery requires a showing of violation of some criminal statute or ordinance. See City of Phoenix v. Johnson, 51 Ariz. 115, 124, 75 P.2d 30, 34 (1938); and Prosser, Torts § 87, pp. 592, 594. Our public nuisance statute is phrased in broad terms:

'Anything which is injurious to health, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by a considerable number of persons, or which unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal or basin, or any public park, square, street or highway, is a public nuisance, and is no less a nuisance because the extent of the annoyance or damage inflicted is unequal.' A.R.S. § 13--601, flicted is unequal.'

A.R.S. § 13--601.

Without law to restrict the sweep of this statute, we believe that it would fail due process tests. See State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965); State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964); State v. Bowling, 5 Ariz.App. 436, 427 P.2d 928 (1967). No law has come to our attention which would characterize an obstruction to view such as this to be a public nuisance. We hold that these dikes do not constitute a violation of the above-quoted criminal statute. There being no theory of recovery advanced by the plaintiffs which fits the undisputed facts of this case, we believe the trial court properly granted the ...