Easement Cases in Ariziona from DIRT Board

From: Kelly and Diane Ward [[email protected]]
Sent: Wednesday, January 26, 2011 12:11 AM
To: [email protected]
Subject: FW: two new Arizona easement decisions - drainage - dedications - Smith v. Beesley - Freeman v. Sorchych - sla

Two new Arizona court decisions came out about two weeks ago that people interested in Arizona right-of-way, plats, easements (for trails, drainage, utilities, roads, etc.) and related interests might want to read.

The first case is Smith v. Beesley. One lot owner objected when another lot owner bought a drainage tract and built a badly engineered private driveway through it. The old plat language made it difficult to tell whether the drainage easement covering the tract was public or private, or what else the easement land could be used for. The court wrestled with the old plat language at length before deciding that the private driveway was allowed if it was rebuilt properly. The opinion is good reading because of its discussion of various easement, plat, dedication, etc. principles. Click here to read the whole court opinion. http://caselaw.findlaw.com/az-court-of-appeals/1552618.html

This case did not significantly change Arizona law. But, the court’s opinion shed light on a number of longstanding easement and dedication concepts, and it gives you a flavor for how Arizona courts approach these issues. Here are some of the general principles that the case illustrates:

1. Plats can create all sorts of covenants, easements and rights-of-way.

2. When a plat creates those sorts of interests, the plat language is interpreted pretty much the same way it would be if the language were in a separate deed or other document.

3. The legal consequences of a dedication are based on evidence about what the dedicator intended.

4. The primary evidence is within the dedication document, but a court will also consider the surrounding circumstances at the time of the plat.

5. An easement’s use is limited to its “scope”.

6. Whether an easement is public or private has various consequences, but is sometimes hard to tell whether the easement is public or private. If you really can’t tell, then it’s probably private.

7. The fee title owner of the land can use the easement land for other purposes as long as he doesn’t interfere with the easement use.

8. Easements are usually not exclusive. (An exclusive easement is one that allows the easement grantee to use the easement land, but nobody else can use the land (including the fee title owner).)

The second case is Freeman v. Sorchych. It is not as interesting, in my view, but still worth reading if you are interested in Arizona easement law. Two property owners shared a private dirt driveway across a third parcel. One spent money to grade it, and the other refused to help pay for the work. The court required the free rider to begin paying his share. That legal point was previously unsettled in Arizona. You can read the full decision here. http://www.cofad1.state.az.us/opinionfiles/CV/CV090720.pdf