Siemsen v. Davis

• Decision Date: 04 April 2000
• Docket Number: No. 1CA-CV 98-0651.,1CA-CV 98-0651.
• Citation: 998 P.2d 1084,196 Ariz. 411
• Parties: Richard SIEMSEN and Annette Siemsen, husband and wife; Bill Starmer and Patricia Starmer, husband and wife; and Robert Paloutzian and Darlene Paloutzian, husband and wife, Plaintiffs-Appellants, v. Merwyn C. DAVIS, Trustee under the Merwyn C. Davis Trust dtd. 7/27/81; Edward B. Hitchcock and C.L. Lux, Co-Trustees of the Qualified Election Trust under the Will of June E. Hitchcock dated May 28, 1982, Defendants-Appellees.
• Court: Arizona Court of Appeals

998 P.2d 1084

196 Ariz. 411

Richard SIEMSEN and Annette Siemsen, husband and wife; Bill Starmer and Patricia Starmer, husband and wife; and Robert Paloutzian and Darlene Paloutzian, husband and wife, Plaintiffs-Appellants, v. Merwyn C. DAVIS, Trustee under the Merwyn C. Davis Trust dtd. 7/27/81; Edward B. Hitchcock and C.L. Lux, Co-Trustees of the Qualified Election Trust under the Will of June E. Hitchcock dated May 28, 1982, Defendants-Appellees.

No. 1CA-CV 98-0651.

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

April 4, 2000.

Walraven & Roberts, by Paul L. Roberts, Jerry Carver, Prescott, Attorneys for Plaintiffs-Appellants.

Jones & Rosenberg, by Bruce E. Rosenberg, Prescott, and Murphy Lutey Schmitt & Beck, by Michael R. Murphy, Prescott, Attorneys for Defendants-Appellees.

OPINION

FIDEL, Judge.

¶ 1 Arizona's private condemnation statute, A.R.S. § 12-1202 (1994), permits a landlocked private landowner to condemn a "private way of necessity" across lands of another upon showing a "reasonable necessity." See Solana Land Co. v. Murphey, 69 Ariz. 117, 125, 210 P.2d 593, 598 (1949). In the underlying bench trial, the trial court concluded that the Plaintiff landowners had failed to make the requisite showing. In Plaintiffs' appeal from the judgment for Defendants, we address two issues:

(1) whether landowners seeking to condemn a private way of necessity must prove themselves unable to obtain an easement across adjoining State land that would permit them an alternative route in and out of their property;

(2) whether evidence that an alternate route is arduous, lengthy, and inconvenient suffices to establish reasonable necessity to privately condemn a shorter, more passable, and more convenient route.

HISTORY

¶ 2 Plaintiffs own and reside on 40-acre parcels of land located in Section 7, Township 19 North, Range 3 West, of the Gila and Salt River Base and Meridian, Yavapai County, Arizona. Defendants own and operate ranches in Sections 18 and 19, which lie directly south of Section 7. Directly north of Section 7, Section 6 consists primarily of State-owned land. Extending north from Section 6 to the town of Ash Fork lies a privately owned development of 40-acre parcels known as "Juniperwood Ranch." Section 7 is bounded on the east by Prescott National Forest and on the west by State-owned land. ¶ 3 The parties dispute whether Section 7 is landlocked in fact, but agree that it is legally landlocked—that it has no recorded means of ingress or egress. How it came to be so is unexplained. The record also leaves unexplained why Section 7, although originally part of the large, privately owned ranch that was subdivided into Juniperwood Ranch, was left out of that subdivision's final plat.

¶ 4 The object of Plaintiffs' action is a private two-track dirt road that traverses approximately one and one half miles of Sections 18 and 19. Known as the "Old Telephone Road," it runs southward from the southern edge of Section 7 across Defendants' properties to an improved public road known as "Big Chino Road." Big Chino Road connects in turn with State Highway 89A to the southeast. Although Plaintiffs for a time enjoyed permissive use of the Old Telephone Road, permission was withdrawn and the gated entrance locked after Defendants suffered damage to their ranches from increasing traffic on the road.

¶ 5 In the underlying bench trial, Defendants contested reasonable necessity for Plaintiffs' attempted condemnation, asserting that Plaintiffs have an alternative outlet from their properties over an unimproved, State-owned road that runs north across Section 6, connecting with a private roadway in Juniperwood Ranch that eventually joins Interstate 40 at the town of Ash Fork. Defendants acknowledge that this northerly roadway is "arduous, unkept, lengthy and burdensome." Steep and rocky, crossing washes, impassable by ordinary passenger car, it adds 45 miles and two hours of travel to a trip to Prescott, the closest major town. According to Defendants, however, the road is passable with four-wheel drive and suffices to bar recourse to the private condemnation of a southern outlet across Defendants' land.

¶ 6 Plaintiffs have never been denied access to the northerly route, but neither have they established a legal right to use it. At trial the parties disputed whether an effort to obtain a permanent easement from the State over Section 6 would be fruitful or futile. They also disputed whether, if Plaintiffs could obtain an easement over Section 6, they were legally entitled to use the private roadway through Juniperwood Ranch. Finally, the parties disputed whether the northerly roadway, even if entirely available to Plaintiffs, constituted a reasonable alternative, given its arduous condition and its length.

¶ 7 After trial, the trial court concluded that Plaintiffs had failed to carry their burden of proving a reasonable necessity to condemn an outlet across Defendants' land. In support of this conclusion, the trial court made the following findings, among others:

9. Each of the Plaintiffs, prior to purchasing their property, knew there was no recorded access to the property in Section 7. The Plaintiffs admitted this knowledge and, in addition, their title policies, deeds and escrow documents clearly recite that there is no legal access in and out of Plaintiffs' property....

10. The Plaintiffs do have physical access to their Section 7 property via a road that extends north through Section 6, continuing through Juniperwood Ranch to Ash Fork. This northern roadway initially traverses a portion of land owned by the State of Arizona before continuing into and through the Juniperwood development....

11. With regard to access across the State-owned land in Section 6, the Court finds that the Plaintiffs have done nothing to avail themselves of the opportunity to acquire an easement or fee title to the roadway which runs to the north of their property....

12. Conflicting expert testimony was presented to the Court regarding the "legality" of the Plaintiffs' use of the road through Juniperwood to the north. The Court resolves this factual dispute in favor of the Defendants and adopts as fact the testimony of Mr. Chesbro, who is employed by First American Title Company, the trustee for Juniperwood. Mr. Chesbro testified, and the Court so finds, that First American Title would insure access through Juniperwood based on the recorded public easements....

14. The Court finds that while the condition of the roadway north from Section 7 to Ash Fork is poor and inconvenient for the Plaintiffs, it is, in fact, passable.

¶ 8 We deferentially review the trial court's findings of fact, but draw our own conclusions of law. See Ariz. R. Civ. P. 52(a); Polk v. Koerner, 111 Ariz. 493, 494-95, 533 P.2d 660, 661-62 (1975).

THE AVAILABILITY OF AN ALTERNATE ROUTE

¶ 9 Arizona law permits a landowner to engage in private condemnation when land "is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity." A.R.S. § 12-1202(A).¹ A landowner seeking to condemn a private way of necessity over the lands of another must show a "reasonable necessity" for the taking. See Solana, 69 Ariz. at 125, 210 P.2d at 598.

¶ 10 We first consider whether, in order to show reasonable necessity, Plaintiffs were obliged to demonstrate the unavailability of the northerly route across Section 6 and the Juniperwood Ranch. Plaintiffs argue that, because the evidence showed their property to be "landlocked," the proper question for the trial court was whether they exercised bad faith in selecting the Old Telephone Road. In support of this proposition, Plaintiffs quote a passage from Solana: "On the matter of selection of the route to be condemned the condemnor makes the initial selection and in the absence of bad faith, oppression or abuse of power its selection of route will be upheld by the courts." Id. at 125, 210 P.2d at 598.

¶ 11 We accept the quoted proposition as the law, but do not agree that it establishes Plaintiffs' right to ignore the northerly route. The question whether Plaintiffs exercised good or bad faith in choosing a particular route to be condemned could not arise until Plaintiffs established a reasonable necessity to condemn any route at all. See id. To assert that they were landlocked and entitled to condemn a southerly outlet begged the question whether they had an adequate outlet by the northerly route. See Bickel v. Hansen, 169 Ariz. 371, 375, 819 P.2d 957, 961 (1991)

(where an adequate alternative exists, "the statutory way of necessity does not exist because the purportedly landlocked land is not, in fact, hemmed in"). Because it was Plaintiffs' burden to establish the absence of an adequate alternative, the trial court properly considered whether Plaintiffs had established either the unavailability or the inadequacy of the northerly route.

¶ 12 Most of the northerly route consists of a private roadway through the Juniperwood subdivision. Although Plaintiffs' deeds lack any reservation of easement through Juniperwood, the Defendants contend that Plaintiffs are nevertheless entitled to the beneficial use of an easement that was reserved within most of the deeds conveying parcels in that subdivision. At trial, the parties made this disputed contention the subject of conflicting expert testimony, and the trial court resolved the issue in favor of Defendants, finding that a title company would insure the Plaintiffs' "access through Juniperwood based on the recorded public easements."

¶ 13 Although we owe deference to a trial court's resolution of conflicting expert testimony on a dispute framed as one of fact, we question the resort to expert testimony on an issue of legal entitlement that should more properly have been framed as one of law. See Hafner v. Beck, 185 Ariz. 389, 393, 916 P.2d 1105, 1109 (1995)

("Although standards for experts'...