SOC, Inc. v. Mirage Casino-Hotel

• Decision Date: 17 May 2001
• Docket Number: No. 34563.,34563.
• Citation: 117 Nev. 403,23 P.3d 243
• Parties: S.O.C., INC.; Hillsboro Enterprises, Inc., and Hillsboro Enterprises, Ltd., Appellants, v. The MIRAGE CASINO-HOTEL, a Nevada Corporation; and Treasure Island Corp., a Nevada Corporation, Respondents.
• Court: Nevada Supreme Court

23 P.3d 243

117 Nev. 403

S.O.C., INC.; Hillsboro Enterprises, Inc., and Hillsboro Enterprises, Ltd., Appellants, v. The MIRAGE CASINO-HOTEL, a Nevada Corporation; and Treasure Island Corp., a Nevada Corporation, Respondents.

No. 34563.

Supreme Court of Nevada.

May 17, 2001.

Potter Law Offices, Las Vegas, for Appellant S.O.C., Inc.

JoNell Thomas, Las Vegas, for Appellant Hillsboro Enterprises.

Schreck Morris, Todd L. Bice and Matthew E. McCaughey, Las Vegas, for Respondents.

Allen Lichtenstein, Las Vegas, for Amicus Curiae American Civil Liberties Union of Nevada.

Before the Court En Banc.

OPINION

YOUNG, J.

This case presents several issues related to the exclusion of commercial handbillers from property that is privately owned. We conclude that the district court did not err in making a preliminary determination that owners of private property may exclude commercial handbillers and such exclusion is not a violation of the Nevada or United States Constitutions.

FACTS

S.O.C., Inc., Hillsboro Enterprises, Inc., and Hillsboro Enterprises, Ltd.,¹ are licensed corporations that provide referrals for erotic dance entertainment. The erotic entertainment services at issue are generally provided in hotel/motel rooms and are available in Clark County for a fee. A partially dressed or nude dancer is requested by telephone and then usually paid for by the person who views the performance.

The Mirage Casino-Hotel, a Nevada corporation, and Treasure Island Corporation, a Nevada corporation, are hotel-casinos located on real property in Clark County, Nevada, which is bordered by Las Vegas Boulevard South (commonly referred to as the "Strip"), Spring Mountain Road, Industrial Road, and private property known as Caesars Palace.

Along the front of the Mirage properties,² there are two sections of sidewalk owned by the Mirage. One of these sidewalks extends from Buccaneer Bay Boulevard (an interior driveway of the Mirage property) south to the Caesars Palace property. This sidewalk borders the water attraction at the Mirage and is parallel and adjacent to Las Vegas Boulevard. The other sidewalk extends from Buccaneer Bay Boulevard north to the corner of Spring Mountain Road and Las Vegas Boulevard. In keeping with the Treasure Island theme, this sidewalk is constructed principally of wooden planks and forms the front of the Treasure Island property line. The plank sidewalk is elevated several feet off the ground and is separated from Las Vegas Boulevard by a public sidewalk that runs parallel to the plank sidewalk and Las Vegas Boulevard for the length of the Treasure Island property.³ Signs are posted at various points along the sidewalks indicating that they are the private property of the Mirage.

In October 1993, as part of the zoning, licensing, and building plans for the Mirage resort, the Mirage conveyed to Clark County a "perpetual pedestrian easement over, under, and across the parcel of land" upon which the sidewalk at issue is abutted. The legal description of the easement states that it is a "pedestrian easement for the west right-of-way of Las Vegas Boulevard."

At one time, there were publicly-owned sidewalks located along Las Vegas Boulevard; however, these public sidewalks were removed to accommodate the widening of the Boulevard when larger resorts were built along the Strip. The record on appeal is not clear with respect to whether the building of the Mirage and Treasure Island necessitated the widening of the Strip and the elimination of the publicly-owned sidewalks.

On April 15, 1999, the Mirage filed suit against S.O.C./Hillsboro alleging that S.O.C./Hillsboro's practice of hiring canvassers to solicit business on sidewalks in front of the Mirage properties, by passing out leaflets advertising their erotic dance services, constituted a trespass. Included in Mirage's prayer for relief were requests for preliminary and permanent injunctions. At the same time, Mirage also filed a motion for a preliminary injunction and a memorandum of points and authorities in support of its motion.

The district court held an evidentiary hearing on the motion for preliminary injunction which included the presentation of several witnesses and other documentary evidence.

The district court judge allowed the parties to submit additional briefs and took the matter under advisement. On June 30, 1999, the district court granted Mirage's request for a temporary injunction. In an oral hearing on the motion, the district court judge indicated that he did not think S.O.C./Hillsboro's arguments regarding the First Amendment were persuasive and that the Mirage was entitled to protect its private property by seeking to exclude commercial handbillers. The preliminary injunction was filed on July 8, 1999. S.O.C./Hillsboro made a timely appeal to this court on July 22, 1999.

DISCUSSION

The decision to grant or deny a preliminary injunction is within the sound discretion of the trial court, and that discretion will not be disturbed absent abuse.⁴ This court's review is limited to the record to determine whether the lower court exceeded the permissible bounds of discretion.⁵ A district court's determinations of fact will not be set aside unless they are clearly erroneous.⁶ If the district court's findings are supported by substantial evidence, they will be upheld.⁷ Questions of law are reviewed de novo.⁸

A party seeking the issuance of a preliminary injunction bears the burden of establishing (1) a likelihood of success on the merits; and (2) a reasonable probability that the non-moving party's conduct, if allowed to continue, will cause irreparable harm for which compensatory damage is an inadequate remedy.⁹

The easement

S.O.C./Hillsboro argue that the district court erred in granting the injunction because the Mirage sidewalks are encumbered by a perpetual easement allowing for public access. They further argue that the activities of the handbillers fall within the permissible scope of the perpetual easement.

We disagree. We conclude instead that the mere existence of the easement does not implicate the protections of the First Amendment. In addition, because of the procedural posture of the case and in light of the facts considered by the district court, we conclude that the district court did not err in finding the easement alone was insufficient to convert private property to a public forum for the purpose of entering the preliminary injunction.

In October 1993, the Mirage granted Clark County a "perpetual easement and pedestrian easement over, under, and across" the sidewalk property involved in this litigation. The easement also contained the following descriptive language: "a perpetual easement for a pedestrian and maintenance easement for streetlights, traffic control devices and for detectors over, under, and across the parcel of land."

The extent of an easement, like any other conveyance of rights in real property, is fixed by the language of the instrument granting the right.¹⁰ Moreover, an easement must be construed strictly in accordance with its terms in an effort to give effect to the intentions of the parties.¹¹ Generally, easements are construed strictly in favor of the owner of the property.¹² A party is privileged to use another's land only to the extent expressly allowed by the easement.¹³ As the Arizona Court of Appeals in Dixon v. City of Phoenix¹⁴ observed, an easement is only as broad as needed to achieve the intended result:

The cases generally hold that an easement obtained by a governmental entity for a public use is only as broad as necessary for the accomplishment of the public purpose for which the easement was obtained and, to the extent the easement holder exceeds this right, it will be regarded as a trespasser and is responsible for damages.

Any misuse of the land or deviation from the intended use of the land is a trespass for which the owner may seek relief.¹⁵ The Restatement addresses the privilege to enter another's property where that property contains a "public highway." The Restatement defines "public highway" to include a sidewalk laid across private property for the use of pedestrians. The Restatement suggests that where sidewalks on private property are intended to facilitate pedestrian travel, activities unrelated to travel exceed the use of such property and subject the trespasser to liability.¹⁶

We conclude that the easement, by its express language, is limited to pedestrian uses of the sidewalk to travel from point A to point B. The language of the easement does not contemplate use by commercial businesses seeking to advance their own economic gains. The district court did not err in making a preliminary finding that the existence of the easement alone, without more, does not transform private property into a public forum for constitutional scrutiny.

The requirement of a "state actor"

S.O.C./Hillsboro concede that the Constitution does not apply to private conduct; however, they argue that the First Amendment protects the activities of its employees from infringement by the Mirage, a private entity, because the Mirage has functionally assumed the role of the government by excluding their handbillers from a traditional public venue. We cannot agree. The need to apply the "public function" exception to the application of the state action requirement of the First Amendment has not yet been demonstrated, and therefore, Mirage's exclusion of commercial handbillers does not implicate the First Amendment.

The First Amendment of the United States Constitution provides in relevant part that "Congress shall make no law . . . abridging the freedom of speech."¹⁷ As applied to the states through the Fourteenth Amendment, it "is a guarantee only against abridgment [of the right of free speech] by government, federal or state."¹⁸ The abridgment then must involve some form of government action. As the United States District Court for the District of Nevada explained, this...