Triple G P'ship v. Mohave Cnty.

• Decision Date: 28 January 2020
• Docket Number: No. 1 CA-CV 18-0529,1 CA-CV 18-0529
• Citation: Triple G P'ship v. Mohave Cnty., No. 1 CA-CV 18-0529 (Ariz. App. Jan 28, 2020)
• Parties: TRIPLE G PARTNERSHIP, et al., Plaintiffs/Appellants-Cross Appellees, v. MOHAVE COUNTY, Defendant/Appellee-Cross Appellant.
• Court: Arizona Court of Appeals

TRIPLE G PARTNERSHIP, et al., Plaintiffs/Appellants-Cross Appellees, v. MOHAVE COUNTY, Defendant/Appellee-Cross Appellant.

No. 1 CA-CV 18-0529

ARIZONA COURT OF APPEALS DIVISION ONE

January 28, 2020

NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Maricopa County

No. CV 2016-017837

The Honorable Connie Contes, Judge

AFFIRMED

COUNSEL

Dickinson Wright PLLC, Phoenix

By Albert H. Acken

Counsel for Plaintiffs/Appellants-Cross Appellees

Jennings Strouss & Salmon PLC, Phoenix

By Laura R. Curry, Christopher W. Kramer, Danielle J. K. Constant

Counsel for Defendant/Appellee-Cross Appellant

MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court, in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.

CAMPBELL, Judge:

¶1 Triple G Partnership appeals the superior court's ruling that Mohave County obtained a roadway easement for public use through common law dedication over the portions of Hackberry Main Street that run through parcels owned by Triple G ("Roadway Property"). The County cross-appeals the superior court's determination that it did not acquire fee title to the Roadway Property by exercising its eminent-domain right through a de facto taking. In Arizona, roadway easements for public use can be established by common law dedication. Pleak v. Entrada Prop. Owners' Ass'n, 207 Ariz. 418, 421, ¶ 9 (2004). Because we find that the County acquired a permanent roadway easement over Main Street in Hackberry through common law dedication, but that Triple G retains fee title, we affirm.

BACKGROUND

¶2 Old Trails National Highway, or as it is more commonly known, Main Street, has been used by the public since the 1800s, when it was the only road providing access to the town of Hackberry, Arizona. Main Street was the only way to access the Hackberry Mine discovered in 1879, Hackberry's cemetery established in 1884, and Hackberry's public school built in 1917. Main Street was once the only roadway between Peach Springs and Kingman and is part of the historic Old Trails National Highway. The County has maintained Main Street since 1916.

¶3 Main Street crosses property originally owned by the federal government before it issued patents for the land between 1916 and 1969. All the parcels at issue are now owned by Triple G.¹ In 2015, Triple G installed barricades blocking a portion of Main Street crossing the Roadway Property after a flood washed out the road. The County then sent a letter to Triple G, asserting that it had established prior rights to Main Street and demandingthat Triple G remove the barricades. Triple G sued to quiet title to the Roadway Property and the portions of Main Street running through the Roadway Property. The County filed an answer and counterclaim alleging it had acquired fee title to Main Street and the Roadway Property by exercising its eminent-domain right through a de facto taking or, in the alternative, had obtained a permanent roadway easement over Main Street.

¶4 The superior court granted summary judgment in favor of the County, confirming that it acquired a roadway easement over the portions of Main Street that run through the Roadway Property, but that Triple G retained fee title to those portions of the Roadway Property. The court denied the County's counterclaim asserting it acquired title to the Roadway Property through a de facto taking. Both parties appealed.

DISCUSSION

¶5 We review de novo the grant of summary judgment, viewing the facts and all reasonable inferences in the light most favorable to the party that judgment was entered against. Felipe v. Theme Tech Corp., 235 Ariz. 520, 528, ¶ 31 (App. 2014) (citation omitted). We review de novo issues of statutory interpretation. Obregon v. Indus. Comm'n, 217 Ariz. 612, 614, ¶ 9 (App. 2008). On review, we may affirm the superior court's ruling "if it is correct for any reason apparent in the record." Forszt v. Rodriguez, 212 Ariz. 263, 265, ¶ 9 (App. 2006).

A. Common Law Dedication

¶6 The superior court determined that Mohave County obtained a right of way easement via a common law dedication. Triple G contends the court erred for two reasons: (1) the doctrine of common law dedication does not apply to the federal government's offer to dedicate a highway (see infra ¶ 8) because public highways in Arizona can only be established through strict compliance with statute; and (2) the County did not properly accept the federal government's offer to dedicate Main Street before the Roadway Property was transferred to private ownership. We disagree.

¶7 "Under the common law, an owner of land can dedicate that land to a proper public use." Pleak, 207 Ariz. at 421, ¶ 8. "The effect of a common law dedication is that the public acquires an easement to use the property for the purposes specified, while the fee remains with the dedicator." Id. An effective common law dedication has two general components: (1) an offer by the landowner to dedicate, and (2) acceptance by the general public. Id. at 423-24, ¶ 21. "No particular words, ceremonies, or form of conveyance is necessary to dedicate land to public use; anythingfully demonstrating the intent of the donor to dedicate can suffice." Id. "[A]cceptance may be established by use."² Lowe v. Pima Cty., 217 Ariz. 642, 648, ¶ 27 (App. 2008); Restatement (Third) of Property: Servitudes § 2.18, cmt. e ("Acceptance may be effected . . . by public use of the designated areas, or by acts of maintenance or control by a governmental unit."). "Where a dedication has been made, whether under a statute or at common law, and accepted by the public it becomes irrevocable." Thorpe v. Clanton, 10 Ariz. 94, 99-100 (1906).

¶8 "Cases decided under [R.S. 2477] hold that it constitutes an offer on the part of the federal government to dedicate unreserved lands for highway purposes, which offer must be accepted by the public in order to become effective." State v. Crawford, 7 Ariz. App. 551, 555 (1968). R.S. 2477 refers to the act of Congress of 1866, section 2477, Rev. St., codified as 43 U.S.C.A. § 932, Repealed. Pub. L. 94-579, Title VII, § 706(a), Oct. 21, 1976, 90 Stat. 2793. In 1866, Congress passed R.S. 2477 to encourage settlement and development of public lands in the western United States. Hillary M. Hoffmann, Signs, Signs, Everywhere Signs: The Wilderness Society v. Kane County Leaves Everyone Confused About Navigating A Right-of-Way Claim Under Revised Statute 2477, 18 Hastings W.-N.W. J. Envtl. L. & Pol'y 3, 7 (2012). The statute reads: "The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted." City of Phoenix v. Kennedy, 138 Ariz. 406, 407, ¶ 8 n.1 (App. 1983). R.S. 2477 was repealed in 1976, but rights-of-way granted under the statute remain valid. PL 94-579, Sec. 507, October 21, 1976, 90 Stat 2743. "The federal statute does not of itself operate to grant right-of-ways and establish highways contrary to the local laws." Crawford, 7 Ariz. App. at 555. Highways "must be established in strict compliance with the provisions of the Arizona law." Id.

¶9 "It was settled long ago in [Arizona] that the doctrine of common law dedication applies to the dedication of roadway easements for public use." Pleak, 207 Ariz. at 421, ¶ 9. In Pleak, property owners sought to enjoin owners of a neighboring development from blocking their use of anaccess road for which the neighbors' predecessor in interest had recorded a survey dedicating a roadway easement for public use. Id. at 420, ¶¶ 2-5. The neighbors argued that the 1901 Territorial Code had abrogated common law dedication as applied to roadway easements for public use. Id. at 421, ¶ 9. The Arizona Supreme Court rejected this assertion, upholding common law dedication of roadway easements for public use. Id. at 420, ¶ 1. The Court explained that, as a matter of statutory construction, Arizona statutes should be read as consistent with common law absent clear legislative intent to abrogate. Id. at 422, ¶ 12 ("[T]he common law, except when repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state . . . is adopted and shall be the rule of decision in all courts of this state.") (internal citation omitted). The Court reasoned that while a "public road" or "public highway" can only be created through statutory means, that does not prevent landowners from dedicating their property to public use. Id. at 423, ¶ 18. The Court explained the difference between a statutory dedication, where fee title passes to the government, and a common law dedication, where fee title remains with the dedicator. Id. at 422, ¶ 13.

¶10 Here, the County obtained a roadway easement for public use over Main Street through common law dedication. The parties agree that R.S. 2477 was an offer by the federal government to dedicate rights-of-way over unreserved federal lands for the construction of public highways. The County accepted this offer to dedicate in compliance with Arizona common law when the public began to use Main Street. When the County accepted the offer, the dedication became irrevocable.

¶11 Triple G nevertheless contends that common law dedication does not apply to grants under R.S. 2477 because public highways can only be established in Arizona by strict compliance with statute. See, e.g., Cochise Cty. v. Pioneer Nat. Title Ins. Co., 115 Ariz. 381, 384 (1977) (Under the federal act, public highways "must be established in strict compliance with the provisions of the Arizona law"); Tucson Consol. Copper Co. v. Reese, 12 Ariz. 226, 229 (1909) ("The matter of the establishment of public highways . . . is wholly statutory."); Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1077 (9th Cir. 2010); S. Utah Wilderness Alliance. v. Bureau of Land Mgmt., 425 F.3d 735, 770 (10th Cir. 2005) (recognizing Arizona as...