Smith v. Beesley

• Decision Date: 10 February 2011
• Docket Number: No. 2 CA–CV 2009–0175.,2 CA–CV 2009–0175.
• Citation: 247 P.3d 548,599 Ariz. Adv. Rep. 14,226 Ariz. 313
• Parties: Otis SMITH, individually and as Personal Representative of The Estate of Lory Garnick Smith, Plaintiff/Appellant,v.Peter BEESLEY and Carol Booth, husband and wife, Defendants/Appellees.
• Court: Arizona Court of Appeals

226 Ariz. 313

247 P.3d 548

599 Ariz. Adv. Rep. 14

Otis SMITH, individually and as Personal Representative of The Estate of Lory Garnick Smith, Plaintiff/Appellant,

v.Peter BEESLEY and Carol Booth, husband and wife, Defendants/Appellees.

No. 2 CA–CV 2009–0175.

Court of Appeals of Arizona, Division 2, Department B.

Jan. 12, 2011.Reconsideration Denied Feb. 10, 2011.

Mariscal, Weeks, McIntyre & Friedlander, P.A., by Michael R. Scheurich, Phoenix, Attorneys for Plaintiff/Appellant.Walker & Harper, PC, by Michael J. Harper Payson, Attorneys for Defendants/Appellees.

OPINIONECKERSTROM, Judge.

¶ 1 This case involves a land use dispute concerning a driveway built by the appellees Peter Beesley and Carol Booth (hereinafter “Beesley”) over a drainage easement in the Kohl's Tonto Creek Ranch subdivision. Appellant Otis Smith, who owned a lot adjacent to the easement, filed an amended complaint against Beesley asserting claims of trespass, nuisance, and unlawful alteration of a watercourse pursuant to A.R.S. § 48–3613. After protracted proceedings regarding Smith's request for injunctive relief, the court held a bench trial on Smith's claims. It then entered judgment in Beesley's favor on all but the nuisance count, for which it found only nominal damages. On appeal, Smith argues (1) the court erred in concluding Beesley had the right to enter upon and alter land within the drainage easement, (2) the court's findings in connection with its preliminary injunction entitled him to “a final mandatory injunction” on his statutory claim, and (3) the court erred in denying his request for attorney fees and awarding them to Beesley.

¶ 2 We agree that the trial court erred in failing to order the removal of the driveway pursuant to § 48–3613, and because Smith's success on this statutory claim will require the court to reconsider its award of attorney fees, we reverse the court's judgment in part and remand the case for further proceedings. The balance of the judgment is affirmed.

Factual and Procedural Background

¶ 3 “When reviewing issues decided following a bench trial, we view the facts in the light most favorable to upholding the court's ruling.” Bennett v. Baxter Group, Inc., 223 Ariz. 414, ¶ 2, 224 P.3d 230, 233 (App.2010).

¶ 4 The Kohl's Tonto Creek Ranch subdivision originally was owned and developed by Michael Mikol, and its plat was recorded by the Phoenix Title and Trust Company in 1952. On the plat appear several non-delineated “drainage easem[ents]” that pass over various tracts of land within the subdivision, between its lots, and over its roads. With regard to these features, the plat's declaration provides as follows:

Know All Men By These Presents: That the Phoenix Title and Trust Company ... hereby declare[s] that the accompanying plat sets forth the location of all ... lots, tracts, private roadways and playground; and gives the dimensions of lots, tracts, private roadways, and playground constituting said Kohl's Tonto Creek Ranch ...; the private roadways and the playground are reserved for the use and benefit of all ... owners of any part of this subdivision ..., their guests or employees but not to the general public. The easements shown hereon are for drainage purposes.

In 2005, Beesley obtained from Mikol's heir a quitclaim deed to the land lying between lots fifty-six and fifty-seven, land that the plat shows as being encumbered by a drainage easement. This property includes a ravine that directs water drainage from tract G, where Beesley owns several parcels, toward the Tonto Creek.

¶ 5 In order to improve access to his land, Beesley built a culvert and driveway over the drainage easement in August and September 2005. Beesley had consulted with two county officials before beginning this project, including Darde de Roulhac, who was the chief engineer of the Gila County Flood Control District. Based on de Roulhac's assurance that the district board did not regulate watercourses such as the one Beesley intended to build in, Beesley did not obtain written authorization from the board for his project, nor did he formally submit his construction plans to the board for review and comment. In fact, no construction drawings ever were prepared for the project. The design came from the contractor Beesley hired to build the project, not from an engineer.

¶ 6 Shortly after the project was completed, Smith filed a “complaint for injunctive relief” in September 2005 in which he requested that the trial court order the removal of all improvements Beesley had made to the drainage easement land. He also asked the court to permanently enjoin Beesley from using the drainage easement for any purpose other than water drainage. Smith filed an amended complaint the next month, asserting claims of trespass and unlawful alteration of a watercourse pursuant to A.R.S. § 48–3613. Once Beesley filed his answer, Smith filed a motion for summary judgment. In his motion, Smith argued, inter alia, that the drainage easement was created exclusively for drainage purposes and that title to the land over which it ran belonged to Gila County, making Beesley a trespasser upon it. The court denied the motion in January 2006, finding that the plat did not state that the sole or exclusive purpose of the property had to be for drainage and did not indicate any intent to dedicate the subject property to public use.

¶ 7 In August 2006, the trial court held an evidentiary hearing in response to Smith's request for preliminary injunctive relief. At the conclusion of the hearing, the court indicated it would grant Smith's application for injunctive relief. The court expressed reluctance to do so under § 48–3613, however, given that the flood control district would not have reviewed Beesley's plans even had he complied with the statute and submitted them. The court therefore declined to order any specific relief at the time and directed the parties to submit an appropriate form of order. Smith then filed a motion for partial summary judgment on his statutory claim in which he argued he was entitled to a mandatory injunction requiring Beesley to remove the roadway immediately and restore the drainage easement to its natural state.¹

¶ 8 The trial court denied the motion, refused to order the relief requested, and set the matter for trial. Before trial, Smith filed a request for a preliminary injunction order and factual findings from the August 2006 hearing. Although Beesley opposed the motion, the court granted the request and on March 6, 2008, entered a preliminary injunction order along with an “order specifying undisputed facts.”

¶ 9 In its preliminary injunction order, the trial court found that the poor design and construction of the culvert and driveway would cause it to erode over time and would divert water within the drainage easement onto Smith's property in the event of a “100–year flow.” The court further found that Beesley had violated § 48–3613(A) by diverting a watercourse without proper authorization from the flood control district board. In part because it concluded the driveway and culvert posed a hazard to life and property, the court ordered the construction removed.

¶ 10 Before trial, Smith amended his complaint to add a nuisance claim to the trespass and statutory claims he previously had asserted. At trial, Beesley was permitted to present evidence, over Smith's objection, that an improved design would allow proper water drainage within the easement.

¶ 11 In its ruling after trial, the trial court determined Beesley's proposed culvert design would allow proper drainage and would not interfere with the easement. The court reaffirmed, however, that the driveway and culvert Beesley previously had built “were so poorly designed and badly constructed that drainage—if and when there ever was any significant rainfall—would be impaired.” The court found that “the existing culvert and driveway built by Beesley—for the reasons given for issuing the preliminary injunction—do unreasonably interfere with the drainage easement. Accordingly, this interference must be remedied.” The court also ordered Beesley to “take all reasonable and practical steps to ensure that during the removal of the ‘old’ culvert and construction of the ‘new’ culvert and driveway ... no further debris goes onto Smith's property.”

¶ 12 Because rocks and other debris had passed through Smith's fence and onto his property during the original construction process, the trial court found Smith had suffered nominal damages supporting his nuisance claim. But the court declined to order abatement of the claimed nuisance, and it ruled against Smith on both of his remaining claims. In so doing, the court reaffirmed Beesley's ownership of the disputed property and his right to enter and improve it as he had proposed. The court also determined that the flood control district's refusal to regulate certain small watercourses rendered § 48–3613 inapplicable to the case, and it vacated its preliminary injunction order to the extent that order found Beesley to be in violation of the statute.

¶ 13 The trial court directed Beesley to submit a form of judgment and proposed findings consistent with the court's ruling after trial. Over Smith's objection, the court then entered its judgment and accompanying “final findings of fact and conclusions of law” that did not include any order requiring Beesley to ameliorate or remove his original driveway and culvert. The court also granted Beesley attorney fees of approximately $55,000. This appeal followed.

Right to Enter and Alter

¶ 14 As he argued below, Smith contends the trial court erred in concluding Beesley had a right to enter upon and alter the land within the drainage easement. In his view, “the Plat Map created an implied exclusive easement limited to drainage purposes ... for the benefit of the public” that precluded Beesley from using the property for any other purpose. Smith offers five arguments to support this...