Sabino Town & Country Estates Ass'n v. Carr

• Decision Date: 30 April 1996
• Docket Number: No. 2,CA-CV,2
• Citation: 920 P.2d 26,186 Ariz. 146
• Parties: SABINO TOWN & COUNTRY ESTATES ASSOCIATION, an Arizona nonprofit corporation, Plaintiff/Appellant, v. William S. CARR and Shay D. Carr, husband and wife; Sandra Packard, an unmarried woman, Defendants/Appellees. 95-0222.
• Court: Arizona Court of Appeals

Page 26

920 P.2d 26

186 Ariz. 146

SABINO TOWN & COUNTRY ESTATES ASSOCIATION, an Arizona nonprofit corporation, Plaintiff/Appellant, v. William S. CARR and Shay D. Carr, husband and wife; Sandra Packard, an unmarried woman, Defendants/Appellees.

No. 2 CA-CV 95-0222.

Court of Appeals of Arizona,

Division 2, Department A.

April 30, 1996.

[186 Ariz. 147] Ethan Steele, Tucson, for Plaintiff/Appellant.

Gerald B. Hirsch, P.C. by Gerald B. Hirsch, Tucson, for Defendants/Appellees Carr.

[186 Ariz. 148] Law Offices of Edmund D. Kahn by Edmund D. Kahn, Tucson, for Defendant/Appellee Packard.

OPINION

PELANDER, Presiding Judge.

Plaintiff/appellant Sabino Town & Country Estates Association (Sabino) appeals from a judgment, entered after a bench trial, which rejected Sabino's claims that a deeded easement for ingress and egress over Sabino's property was terminated by abandonment or adverse possession. Sabino also appeals from the trial court's pre-trial order dismissing defendant Packard and awarding her attorney's fees. We affirm.

FACTS AND PROCEDURAL HISTORY

Viewed in a light most favorable to sustaining the trial court's judgment, Knapp v. Wise, 122 Ariz. 327, 328, 594 P.2d 1023, 1024 (App.1979), the facts are as follows. In 1972 defendant Packard, the predecessor in interest of the defendants Carr, acquired real property east of Sabino Canyon Road. At that time Packard also acquired and recorded three deeds of perpetual easement of ingress and egress over a thirty-foot-wide strip of property running west from Packard's property to Sabino Canyon Road. The deeds of easement granted Packard, inter alia, "the free and uninterrupted use, liberty and privilege of, and passage in and along, [the thirty foot] strip of land," together with "[f]ree ingress, egress and regress" to and from Packard's property. By their terms, the deeds of easement "constitute[d] and cover[ed] a perpetual right-of-way to run with the land."

In 1976 Sabino created a subdivision west of Packard's property, between it and Sabino Canyon Road, by recording a plat map. The plat described a "common area" which included property within Packard's easement, but the plat map did not mention or show the easement. After creating the subdivision, Sabino erected and periodically maintained fencing around its common area, including a split rail wooden fence along its west side and a barbed wire fence on its east side, within Packard's easement area. Although Sabino contends that its fencing was "specifically directed at excluding [motor vehicle] use" of the easement, Sabino does not challenge the trial court's finding that Sabino "fenced the common area to protect the desert landscape from intrusion by the public visiting the Sabino Canyon area."

Before and after Sabino erected the fences, the Packards had access to and used the easement property for hiking, jogging, horseback riding and occasional moped riding. Other subdivision residents, with Sabino's knowledge, also used the common area, including the easement strip, for hiking and equestrian travel. Sometime in the 1980s, Sabino created several small openings in the fences to allow people to pass through the common area to use trails for hiking and horseback riding.

From 1972 to 1993, the Packard family did not use the easement for ingress and egress, but rather only used Fenster School property, located to the south and west of Packard's residence, for those purposes. ¹ Packard never developed any portion of the easement and, other than occasional moped riding, motor vehicles were not used on the easement. Nonetheless, Packard never knowingly abandoned any rights to the easement and never stopped using it.

In March 1993, Packard conveyed her property and the deeds of easement to Carr, who bought the property for the sole purpose of using it for a bed and breakfast business. Carr obtained authority to operate such a business on the property and began clearing and grading the easement area west of his property to facilitate ingress and egress. Sabino objected and, after complying with the notice requirements of A.R.S. § 12-1103(B), filed this suit to quiet title in September 1993.

In its complaint, Sabino alleged that, because of abandonment or non-use, defendants were "barred or forever estopped from having a claim or claiming any right or title to the real property adverse to [Sabino] except for an equestrian easement over the north 30 feet thereof." After a bench trial, the trial court entered judgment for Carr based on its ruling that Sabino failed to carry its burden of establishing abandonment or prescriptive termination of defendants' deeded easement. This appeal followed.

DISCUSSION

On appeal, Sabino acknowledges that it never "was adversely holding against pedestrian and equestrian uses on the easement," but contends "that the scope of the easement [was] partially extinguished--specifically, that motor vehicle use of the easement is now barred by Sabino's adverse possession against such use for a period of over ten years." ² "An easement, whether acquired through grant, adverse use, or as an abutter's right, may be extinguished by the owner of the servient tenement by acts adverse to the exercise of the easement for the period required to give title to land by adverse possession," i.e. ten years. Busby v. State, 2 Ariz.App. 451, 453, 409 P.2d 735, 737, judgment set aside and new trial order vacated, 101 Ariz. 388, 420 P.2d 173 (1966). See A.R.S. § 12-526(A). In addition, "the scope of an easement may be altered when it is adversely possessed as to some uses, though it is not so possessed as to all uses." Titcomb v. Anthony, 126 N.H. 434, 438, 492 A.2d 1373, 1376 (1985); 3 Powell on Real Property, § 34.21 at 34-260 (1995).

To prove adverse possession of defendants' deeded easement, Sabino "had to show by clear and convincing evidence that its use was 'actual, open and notorious, hostile, under a claim of right, continuous for the statutory period [here, 10 years], and exclusive.' " Inch v. McPherson, 176 Ariz. 132, 135, 859 P.2d 755, 758 (App.1992), quoting Rorebeck v. Criste, 1 Ariz.App. 1, 4, 398 P.2d 678, 681 (1965). Because "[t]he owner of the servient estate claiming adverse possession of an easement already has the right to possess and use the land so long as that use is not inconsistent with the easement," Mueller v. Hoblyn, 887 P.2d 500, 507 (Wyo.1994), Sabino also was required "to show by clear, positive and unequivocal evidence that [its] use of the easement was inconsistent with and antagonistic to [defendant's] right." Busby, 2 Ariz.App. at 454, 409 P.2d at 738.

The question of whether the elements of adverse possession have been established is "one of fact which must be determined from the circumstances of each case." Kay v. Biggs, 13 Ariz.App. 172, 175, 475 P.2d 1, 4 (1970); Sevier v. Locher, 222 Cal.App.3d 1082, 1086, 272 Cal.Rptr. 287, 290 (1990). "Just as the creation of an easement by prescription is not favored in the law, the termination of an easement by adverse possession is not favored." Mueller, 887 P.2d at 507. "There are no equities favoring the establishment of such a claim." Chandler v. Jackson, 148 Ariz. 307, 311, 714 P.2d 477, 481 (App.1986).

We view the evidence in a light most favorable to sustaining the judgment, which will not be disturbed if there is evidence supporting it. Inch, 176 Ariz. at 135, 859 P.2d at 758. In addition, it is the trial court's function to distinguish "between evidence which is clear and convincing and evidence which merely preponderates." Id., quoting Yano v. Yano, 144 Ariz. 382, 384, 697 P.2d 1132, 1134 (App.1985). "We are bound by the trial court's findings of fact, unless they are demonstrated to be clearly erroneous, although not by the trial court's conclusions of law." Chandler, 148 Ariz. at 311, 714 P.2d at 481.

The undisputed evidence in this case established that from 1972 to 1993, Packard did not use or attempt to use the easement for regular ingress to, or egress from, her property, nor was the easement needed or used for motor vehicle travel. The evidence also was undisputed that, despite Sabino's fencing the east and west sides of its common area, Packard's family and others continued to use the area, with Sabino's knowledge and consent, for hiking, jogging, horseback riding and some moped riding. Packard's mere non-use of the easement for motor vehicle ingress or egress does not establish Sabino's adverse possession. See Kolouch v. Kramer, 120 Idaho 65, 67, 813 P.2d 876, 878 (1991). See also Squaw Peak Community Covenant Church v. Anozira Dev., Inc., 149 Ariz. 409, 414, 719 P.2d 295, 300 (App.1986) ("The law is well-settled that the owner of an easement created by express grant is under no duty to make use of the easement in order to retain his entitlement.").

When one claims title to property by adverse possession, fencing of the disputed property "is evidence of possession" and may be "sufficient...