Paxson v. Glovitz

Facts

P and D own adjoining parcels of residential property. The two properties formed a rectangle. Immediately before February 1979, the southern half of the rectangle was one parcel jointly owned by Eugene and Irma Murphy, and Roger Baker. The Murphys and Baker divided the land roughly in half from north to south with the result that Baker thereafter owned the eastern half and the Murphys took the western half. Later in 1979, the Murphys and Baker bought the parcel comprising the northern half of the rectangle. They then orally agreed to create an easement running east and west straddling the northern and southern parcels to facilitate access to 64th Street, locating this easement on the boundary line between the northern and southern halves of the rectangle, running west some 311 feet from 64th Street, past Baker’s western property line and continuing onto the Murphys’ land where it dead-ended. Intending to settle the matter “for all time,” they agreed that the easement would be twenty feet wide, ten feet on either side of the dividing property line. After the easement was settled, Mr. Murphy had it paved. He also gave instructions to a title agency to prepare a property description so that a formal easement could be recorded. For reasons not in the record, the easement was never recorded, and no written grant of easement was produced. There is, however, no dispute as to the original intention to create the easement, and it is this easement, a strip of land ten feet wide across D’s property, that is the subject of P’s claim. The Daleidens purchased the Murphys’ southwestern parcel. The next year, they bought from the Murphys and Baker the northern half of the rectangle. In 1998, they sold it to D. The Daleidens were told about the easement and during the time the Daleidens owned the property, the roadway was used by members of the public, by visitors to their home and by the residents of the house now owned by P, as well as by utility, postal, and other private and commercial vehicles. The Daleidens believed that this use was as a matter of right; they gave no permission. P acquired the Baker parcel in 1995. She was shown the paved easement and told that it was for her use and for that of the general public. The City of Scottsdale had posted a sign at the entry: “Not a Through Street.” When D purchased the property, he questioned the Daleidens about the driveway and was told that it had always been used for ingress and egress by neighbors as well as by the public. D knew that the twenty-foot-wide driveway extended ten feet onto the property he was purchasing. He also knew that “everybody used it” if for no other reason than that the Daleidens told him that the driveway, “throughout their ownership, had always been used for ingress and egress by neighbors as well as the public.” In September 2000, D began to construct a block fence along his property line where the driveway ran, and P filed this action to obtain an easement by prescription for the ten-foot portion of the driveway extending onto D’s land. She also sought a temporary restraining order (“TRO”) and preliminary injunction. At the hearing for the TRO and preliminary injunction, D took the position that use of the purported easement had never been hostile but was permissive. The superior court denied interim relief to P. It found no basis in fact or law for a TRO or preliminary injunction and no likelihood of success on the merits of P’s claim. D then moved for summary judgment. He argued that P could not establish the elements of a prescriptive easement as a matter of law. The basis for his argument was that the driveway had been established by agreement among the adjacent landowners and, therefore, its use had remained permissive since inception. The superior court granted D summary judgment. The superior court also granted the motion for fees and signed the form of judgment presented by D quieting title to the property and awarding D fees of $38,810.50 against P and her counsel, jointly and severally. P moved for new trial. She contended that the open and notorious use of the easement since 1979, more than the prescribed ten-year period of limitation, had created a presumption of hostility. The Murphys and Baker, although intending to create a recorded, formal easement, had instead, P argued, created an easement by parol, unenforceable because of the Statute of Frauds, but effective to initiate a use that was thereafter adverse according to the principles of Tenney v. Luplow, 103 Ariz. 363, 442 P.2d 107 (1968).

Issues

Rule of Law

Holding and Decision

Legal Analysis

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