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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


             FRED M. MCEUEN, SR., et al., Plaintiffs/Appellees,

                                        v.

           REX M. CHRISTENSEN, et al., Defendants/Appellants.

                             No. 1 CA-CV 20-0076
                               FILED 12-24-2020


           Appeal from the Superior Court in Yavapai County
                        No. P1300CV201800862
              The Honorable John David Napper, Judge
            The Honorable David L. Mackey, Retired Judge

                                  AFFIRMED


                                   COUNSEL

Combs Law Group, P.C., Phoenix
By Charles H. Oldham, Christopher A. Combs
Counsel for Plaintiffs/Appellees

The Kozub Law Group, P.L.C., Phoenix
By Richard W. Hundley
Counsel for Defendants/Appellants
                 MCEUEN, et al. v. CHRISTENSEN, et al.
                       Decision of the Court



                      MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.


W I L L I A M S, Judge:

¶1            Rex and Loni Christensen (“Christensens”) appeal the grant
of summary judgment in favor of Fred and Valerie McEuen (“McEuens”)
finding the Christensens have no implied easement or statutory private
right of way over the McEuens’ property to access their own. For reasons
that follow, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             The McEuens own a parcel of land in Yavapai County, which
is contiguous to an unimproved parcel of land owned by the Christensens.
Along the southern boundary, both parcels are bordered by East Poland
Road, a public dirt road. The two parcels were part of a unified parcel
owned by a single owner until 1991, when the unified parcel was split into
two smaller parcels. The Christensens contend that, before and after the
split, access to their parcel was accomplished through an unimproved dirt
roadway that also served as an easement for Arizona Public Service. The
unimproved dirt roadway is accessed from East Poland Road and cuts
through the McEuen parcel on to the Christensen parcel. In July 2008, when
the McEuens purchased their parcel, they blocked any access to the
unimproved dirt roadway by installing a new lock on an existing gate that
has remained continuously in place. Since then, the Christensens have been
unable to access their property through the unimproved roadway.

¶3           More than ten years later, in September 2018, the McEuens
sued the Christensens to quiet title to their property claiming the
Christensens held no valid easement over the McEuens’ property. The
Christensens filed a counterclaim alleging the existence of either an implied
easement of necessity, an easement implied on severance, or a statutory
private way of necessity over the McEuens’ property.

¶4           Both parties moved for summary judgment. The superior
court granted the McEuens’ motion, barring any interest the Christensens



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                  MCEUEN, et al. v. CHRISTENSEN, et al.
                        Decision of the Court

may have had in accessing their own property over the unimproved
roadway on the McEuens’ land. The Christensens timely appealed. This
court has jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1) and -2101(A)(1).

                               DISCUSSION

¶5            We review a grant of summary judgment de novo. Chalpin v.
Snyder, 220 Ariz. 413, 418, ¶ 17 (App. 2008). Summary judgment is
appropriate if “there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a). “We view the facts and any inferences drawn from those facts in the
light most favorable to the party against whom judgment was entered.”
Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15
(App. 2007).

I.            Implied Easement of Necessity

¶6             Under common law, an implied easement of necessity, also
referred to as an “implied way of necessity,” Coll. Book Ctrs., Inc. v. Carefree
Foothills Homeowners’ Ass’n, 225 Ariz. 533, 541, ¶ 29 (App. 2010), exists
“where land is sold that has no outlet, [and] the vendor by implication of
the law grants ingress and egress over the parcel to which he retains
ownership, enabling the purchaser to have access to his property,” Bickel v.
Hansen, 169 Ariz. 371, 374 (App. 1991). In other words, an implied easement
of necessity arises whenever land that is sold is inaccessible except by
passing over the land of the grantor. 28A C.J.S. Easements § 96 (2020). To
establish an implied easement of necessity, the asserting party must prove:
“(1) unity of ownership of the dominant and servient estates; (2) severance
thereof; (3) no outlet for the dominant property; and (4) showing that the
reasonable necessity for access existed at the time of severance.” Coll. Book
Ctrs., 225 Ariz. at 541, ¶ 30 (App. 2010) (citing Bickel, 169 Ariz. at 374).

¶7             The Christensens argue the superior court was mistaken in
finding that land must be landlocked for an implied easement to exist. The
Christensens, however, failed to show there is “no outlet for the dominant
property.” See id. Arizona case law supports the notion that this element
effectively requires the parcel be landlocked and not directly accessible
without trespassing onto another’s property. See id. at 542,
¶¶ 31–32. Here, the Christensens have direct access to their property
because their parcel abuts a public road, East Poland Road. Because
plaintiffs seeking an implied way of necessity have the burden of satisfying
all the elements, see id. at 541, ¶ 30 n.9, and the Christensens fail to show



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                  MCEUEN, et al. v. CHRISTENSEN, et al.
                        Decision of the Court

there is no outlet to or from their property, we need not inquire into the
final element. It follows, where the Christensens parcel is not landlocked
and passing over the McEuens’ land to access the Christensens’ property is
not necessary, an implied easement of necessity cannot exist.

II.           Statutory Private Way of Necessity

¶8             Arizona provides for a statutory right to take private property
for private ways of necessity. See A.R.S. §§ 12-1201 to -1203. A person
entitled to the beneficial use of land, “which is so situated with respect to
the land of another that it is necessary for its proper use and enjoyment to
have and maintain a private way of necessity . . . may condemn and take
lands of another . . . for the construction and maintenance of the private
way of necessity.” A.R.S. § 12-1202(A). Arizona courts have interpreted this
statutory language as indicating “that only a party owning or having a
beneficial use in land that is ‘land-locked’ may bring an action to condemn
a private way of necessity across the land of another.” Solana Land Co.
v. Murphy, 69 Ariz. 117, 123 (1949); see also Coll. Book Ctrs., Inc., 225 Ariz. at
543, ¶ 37. A landowner seeking to condemn a private way of necessity over
the lands of another under this statute must show a “reasonable necessity”
for the taking. Solana Land Co., 69 Ariz. at 125. In determining whether a
reasonable necessity exists, the court looks to whether there is an alternative
legal route that is both adequate and reasonable. Dabrowski v. Bartlett, 246
Ariz. 504, 517, ¶ 44 (App. 2019). It is the burden of the party seeking a
private way of necessity (“condemnor”) to establish the absence of an
adequate alternative outlet. Siemsen v. Davis, 196 Ariz. 411, 414, ¶ 11
(App. 2000).

¶9             While the condemnor need not show absolute necessity for a
private taking, Solana Land Co., 69 Ariz. at 125, the fact that a parcel is not
landlocked will at least indicate that an alternative legal route exists. Here,
the Christensens have failed to show that access to their property via East
Poland Road is inadequate, particularly since their property has 700 feet of
frontage to the road. The mere fact that it may be costly or inconvenient to
construct a road on the Christensens’ own property, in order to reach a
preferred point of their parcel, does not support the condemnation of
another’s property. See Bickel, 169 Ariz. at 374 (observing that “a person’s
right not to have their property condemned . . . is constitutional and should




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                  MCEUEN, et al. v. CHRISTENSEN, et al.
                        Decision of the Court

not be lightly regarded or swept away merely to serve convenience and
advantage.”).1

III.          Easement Implied Upon Severance

¶10            The elements of an easement implied on severance are: (1) the
existence of a single tract of land arranged so that one portion derives a
benefit from the other, division by a single owner into two or more parcels,
and separation of title; (2) long, continued, obvious or manifest use before
separation occurs, to a degree that shows permanency; and (3) use that is
essential to the beneficial enjoyment of the parcel to be benefitted. Koestel v.
Buena Vista Pub. Serv. Corp., 138 Ariz. 578, 580 (App. 1984). It is the general
rule that creation of an easement implied upon severance does not require
absolute necessity but only a reasonable necessity. Id. at 581. Even so, to the
extent the Christensens’ use of the unimproved dirt roadway was essential
to the beneficial enjoyment of the parcel, which is not clear to us, they lost
any right to such access when the McEuens adversely blocked that access
for more than ten years. See Sabino Town & Country Ests. Ass’n v. Carr, 186
Ariz. 146, 149 (App. 1996) (quoting Busby v. State, 2 Ariz. App. 451, 453,
judgment set aside and new trial order vacated, 101 Ariz. 388, 392 (1966)) (“‘An
easement, whether acquired through grant, adverse use, or as an abutter’s
right, may be extinguished by the owner of the servient tenement by acts
adverse to the exercise of the easement for the period required to give title
to land by adverse possession,’ i.e. ten years.”); see also A.R.S. § 12-526.

¶11            It is undisputed that access to the unimproved dirt roadway
located on the McEuens’ property halted when the gate was locked, which
at the very latest, occurred in July 2008. The Christensens first asserted their
right to use the roadway in October 2018, which is more than ten years after
the adverse acts by the servient estate began. Consequently, any right to the
property, achieved under the easement implied upon severance doctrine,


1 The Christensens also argue the superior court improperly considered
letters by two civil engineers attached as exhibits to the McEuen’s
cross-motion for summary judgment. The letters addressed whether a new
roadway could be built on the Christensen’s parcel connecting to East
Poland Road, as well as projected costs. The superior court specifically
noted it did not consider the letters. On this record, the court could have
reached its legal conclusions without considering the letters, particularly
because the Christensens included a supplemental declaration addressing
both the potential cost and ease of access to their property from East Poland
Road.



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                 MCEUEN, et al. v. CHRISTENSEN, et al.
                       Decision of the Court

was extinguished by adverse acts for the statutorily prescribed time.
Accordingly, the Christensens’ claim for an easement implied upon
severance is time-barred.

IV.           Attorneys’ Fees and Costs

¶12            Arizona statute provides that “a prevailing party in a quiet
title action may recover attorneys’ fees if, twenty days before bringing the
action, he or she tendered five dollars with a request that the other party
execute a quit claim deed, and the other party did not comply.” Cook v.
Grebe, 245 Ariz. 367, 369, ¶ 5 (App. 2018); see A.R.S. § 12-1103(B); see also
Lange v. Lotzer, 151 Ariz. 260, 262 (App. 1986) (“The Arizona Legislature has
expressly determined that only a prevailing party who follows certain
prerequisites may recover attorney’s fees in quiet title actions.”). It is
undisputed that the McEuens and the Christensens complied with
§ 12-1103(B). Because the McEuens prevailed in this action and gave the
required notice of their intention to seek attorneys’ fees and costs, they are
entitled to recover such fees incurred on appeal. Arizona Rules of Civil
Appellate Procedure, Rule 21(A).

                               CONCLUSION

¶13            For the foregoing reasons, we affirm the superior court’s grant
of summary judgment in favor of the McEuens. The McEuens are awarded
their taxable costs and reasonable attorneys’ fees on appeal.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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