Underwood v. Wilczynski

252 Ariz. 405

504 P.3d 277

Todd UNDERWOOD, an unmarried man; Christopher Burmaster, Plaintiffs/Appellants,

v.Thomas WILCZYNSKI and Dana Wilczynski, husband and wife; Janet A. Bewley, in her capacity as trustee for the Janet A. Bewley Trust Dated August 30, 2000, Defendants/Appellees.

No. 2 CA-CV 2021-0077

Court of Appeals of Arizona, Division 2.

Filed December 16, 2021

MacQueen & Gottlieb PLC, Phoenix, By Patrick R. MacQueen, Patrick T. Nackley, and Brandon P. Bodea, Counsel for Plaintiffs/Appellants

Fowler St. Clair PLLC, Scottsdale, By Brian C. Locker, Counsel for Defendants/Appellees Thomas and Dana Wilczynski

Schern Richardson Finter PLC, Mesa, By Aaron M. Finter, Counsel for Defendant/Appellee Janet A. Bewley Trust

ESPINOSA, Presiding Judge:

Presiding Judge Espinosa authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.

¶1 Todd Underwood appeals from the trial court's entry of summary judgment in favor of his neighbors, Dana and Thomas Wilczynski (the "Wilczynskis") and the Janet A. Bewley Trust Dated August 30, 2000 ("the Trust"), arising from a dispute over the construction of a road on a portion of his property and the entry of judgment granting a broad easement for the disputed road. For the reasons that follow, we affirm the summary judgment ruling but vacate portions of the judgment and remand to the trial court for further proceedings.

Factual and Procedural Background

¶2 We view the facts, which are largely undisputed, in the light most favorable to Underwood, the party who opposed the summary judgment motion below. See Keonjian v. Olcott , 216 Ariz. 563, ¶ 2, 169 P.3d 927 (App. 2007). This appeal involves three parcels of residential land in Pinal County—owned by Underwood and his neighbors—which had originally been acquired from the federal government by land patents pursuant to the Small Tract Act, 43 U.S.C. §§ 682a through 682e (repealed 1976). The parcels are subject to thirty-three foot wide rights-of-way along their boundaries created by the federal land patents (FLP). The parcels to the east of Underwood's property were at one time a singular parcel that was later divided in two; the Wilczynskis own the parcel adjacent to the southern half of Underwood's property, and the Trust owns the parcel adjacent to the northern half of Underwood's property. While the Underwood and Trust parcels are accessible to the north by the east-west running East Forest Street, the Wilczynski property had no physical connection to that road until the Trust constructed a north-south running roadway, Holmes Road, along the border of Underwood's and the Trust's property providing physical access from the Wilczynski property to East Forest Street. Although the precise size and location of Holmes Road is disputed, it is a dirt road, eight to twelve feet wide, approximately centered on Underwood's eastern boundary and the Trust's and the Wilczynskis' western boundaries.

¶3 After Underwood sought to prevent the Wilczynskis' use of Holmes Road, the Wilczynskis sent a letter to Underwood asserting their interest in an easement over his property to allow access to their property by way of the FLP rights-of-way and an easement of necessity. They also began traversing Underwood's property for ingress and egress on Holmes Road. In April 2020, Underwood sued the Wilczynskis and the Trust, pleading claims for quiet title, declaratory relief, trespass, and trespass to chattels in relation to the construction and use of Holmes Road. The Wilczynskis denied that Underwood was entitled to relief on his claims and filed counterclaims to quiet title and for declaratory relief against Underwood.¹ The Trust likewise denied Underwood's claims.

¶4 The Trust and the Wilczynskis moved for summary judgment, arguing the FLP rights-of-way granted them the right to construct and utilize Holmes Road along the border of Underwood's property. In response, Underwood argued judgment should be entered in his favor because he claimed there was no evidence in the record that his property was subject to any easement as the defendants had failed to identify an FLP covering his property. He further argued the Wilczynski property was not landlocked because it had both an express easement and an implied easement of necessity across the Trust property.²

¶5 After a hearing, the trial court granted summary judgment to the Wilczynskis and the Trust. The court reasoned that based on Bernal v. Loeks , 196 Ariz. 363, 997 P.2d 1192 (App. 2000), and Neal v. Brown , 219 Ariz. 14, 191 P.3d 1030 (App. 2008), the Wilczynskis had established the need to use the FLP right-of-way because they "do not have an existing roadway" to access their property. The court entered a final judgment, and Underwood appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).³

Discussion

¶6 Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). In reviewing a grant of summary judgment, we determine de novo whether any genuine issues of material fact exist and whether the trial court properly applied the law. Neal , 219 Ariz. 14, ¶ 11, 191 P.3d 1030.

Wilczynskis' Entitlement to Underwood Right-of-Way

¶7 Underwood first claims the trial court erred in concluding the Wilczynskis were entitled to enforce the easement across his property because his neighbors "already possessed a legal ingress/egress easement." Specifically, Underwood maintains "an implied way of necessity arose as a matter of law" when "the Wilczynski property was severed from the common ownership of the Trust property in March of 1997 because no recorded access existed at that time." We disagree.

¶8 The elements of an implied way of necessity are: (1) common ownership of the dominant and servient estate; (2) severance; (3) no outlet for the dominant estate at the time of severance; and (4) reasonable necessity for access when severance occurred. Coll. Book Ctrs., Inc. v. Carefree Foothills Homeowners' Ass'n , 225 Ariz. 533, ¶ 30, 241 P.3d 897 (App. 2010). Thus, "a way of necessity can be implied only when the necessity existed at the time of the original severance of the estates." Bickel v. Hansen , 169 Ariz. 371, 374, 819 P.2d 957 (App. 1991). Contrary to Underwood's argument, the Wilczynski parcel was not landlocked when severance occurred because it had an outlet by way of the recorded FLP rights-of-way over the Trust and Underwood properties. Thus, no implied way of necessity arose over the Trust parcel in 1997.⁴

¶9 Underwood next contends the trial court erred by applying Bernal instead of Neal to his case. In Bernal , this court determined that private parties could enforce the easements reserved in parcels acquired from the federal government by land patents pursuant to the Small Tract Act, even if the state or local governments had not yet constructed roadways. 196 Ariz. 363, ¶¶ 2, 5, 11, 997 P.2d 1192. Neal addressed whether the private enforcement right recognized in Bernal extended to a parcel owner who already had an adequate roadway to access his property. Neal , 219 Ariz. 14, ¶ 1, 191 P.3d 1030. We concluded that "easement rights conveyed by the federal land patents pursuant to the [Small Tract] Act are not unconditional private rights of ingress and egress" but are "circumscribed by their purposes, which ... are ‘to provide street and utility access and to alleviate the burden on local governments to acquire easements to install roads and utilities.’ " Id. ¶ 18. Because the clear intent of the reserved right-of-way in the FLP was to ensure adequate roadway access and not to create a right in nearby parcel owners to traverse a neighbor's property regardless of actual need, id. , we determined that neighboring property owners were not entitled to enforce the right-of-way over the defendant's property where an adequate roadway already existed, id. ¶ 23.

¶10 In granting summary judgment for the Trust and Wilczynskis, the trial court found that, unlike the neighbors in Neal , the Wilczynskis "do not have an existing roadway" and had therefore established the need to use the FLP easements to access their property. Underwood disputes that conclusion as incorrect because the Wilczynskis have adequate legal ingress and egress through the Trust's FLP easement and they should therefore not be permitted to enforce the FLP easement across his property. But nothing in Neal supports his argument. As noted above, Neal dealt with whether neighbors could privately enforce the FLP easement against another property when they already had adequate physical—not simply legal—access. Id. ¶ 17. Underwood nevertheless asks us to extend Neal to conclude that because the Wilczynskis have alternate legal access to their property by way of the Trust parcel's FLP easement, they have no need to use the FLP easement across his property. As the Trust pointed out below, however, such an extension would require courts to determine priority among essentially identical FLP easements that were originally reserved to allow governments to create a system of adequate roadway access. See id. ¶ 18. We conclude the court did not err in determining the Wilczynskis have the right to use the FLP easement on the Underwood property and granting summary judgment to the Wilczynskis and the Trust on Underwood's claims.

Entry of Judgment

¶11 Underwood also argues the trial court made various errors in the judgment entered against him. The relevant portion of the judgment is as follows:

1. Title to that ... certain easement over a portion of real property located on [Underwood's property], legally described in Exhibit A and illustrated in Exhibit B, is quieted in favor of the Defendants and their right to use such land for "roadway and public utilities purposes ... along the boundaries of said land."

2. It is declared and adjudicated that:

a. Defendants hold a dominant estate in the

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