By: Terri Jo Neff
Ranch residence access arguments may result in ruling with statewide implications
When Danny and Denice Hatch bought 40-acres in rural Willcox in 2003, they knew a 60-foot wide strip of their land was subject to a right-of-way easement. The Hatches paid the taxes on all the land and used a portion of the easement for a dirt driveway to get to their house on North Sheppard Road - as did the previous owner. The rest of the easement property remained undisturbed desert.
All was good for more than a decade. Then in December 2013, neighbors Ronald Klump and Dayla Heap began using the Hatch driveway and the rest of the easement to access their home on North Johnson Saddle Road, part of a 300-acre parcel owned by Roy Klump.
A conflict quickly arose, resulting in numerous calls to the Sheriff's Office as well as allegations of harassment, fence tampering, criminal damage, and missing horses. Now, nearly three years after the dispute began, a three judge panel of the Arizona Court of Appeals (Division Two) will hear oral arguments in the case known as Danny R. Hatch Jr. v Ronald J. Klump.
The appellate judges have been asked to consider whether the 1970s era easement deed created a public roadway across the eastern edge of Hatch’s property as Klump claims, or if a Cochise County Superior Court judge erred in ruling the public has a right to drive on Hatch’s property. Klump warns that if the Appeals Court “reverses the trial court, the impact that such a ruling could have on many other publicly dedicated roadways” across the region could be “undesirable and widespread.”
Parties ordered to "behave themselves", keep gate unlocked
Court records show that to reach their house, Klump and Heap had been driving along a gas company’s pipeline road, but that access was closed off in late 2013. Klump previously (prior to 2004) used the Hatch easement to check water lines for his cattle, and now that route is the only option available.
When the parties could not come to an agreement, Hatch's attorney Carl MacPherson filed a motion in Superior Court on February 21, 2014 for a temporary restraining order to keep the neighbors off his land. Klump countered that the easement along the eastern edge of Hatch’s parcel always included a public roadway even if the public had not used it for several years.
After holding a evidentiary hearing, judge John Kelliher ruled March 6, 2014 that “this appears to be a public easement / right of way” and therefore the Court “cannot grant the requested temporary restraining order / preliminary injunction.” The parties were ordered to “behave themselves” and keep the gate across the driveway unlocked.
A jury trial was scheduled for April 2015 but on March 5, 2015 Klump filed a motion for summary judgment, asking the judge to rule in the neighbors favor because “there are no material facts in dispute” that would require a trial. Hatch responded that if the easement created a public roadway, those rights were extinguished by adverse possession, based on the property owner’s longtime, exclusive use of the right-of-way.
On April 20, 2015 judge Kelliher issued an Order of Summary Judgment in Klump's favor. Only one sentence addressed his finding. The judge also ordered that “defendants are entitled to an award of attorney’s fees and costs” and instructed Klump to submit an affidavit of costs. In the Final Judgment issued May 26, 2015 by Kelliher, he ruled “there is a public easement for ingress and egress” for the 60 feet wide strip of Hatch’s property and awarded the neighbors “all rights for use of the easement.” The judge also barred Hatch and future owners “from interfering with the use of the easement for purpose of ingress and egress.”
Hatch was ordered to pay Klump $5000 for attorney fees. Hatch filed a motion May 29, 2015 asking Kelliher for a new trial, asserting the “trial court erred as a matter of law by interpreting the easement as a public roadway.” The judge denied that motion July 28, 2015 and Hatch appealed the decisions soon after.
Did easement create public roadway?
The easement wording includes: “…does hereby grant and convey to the public for ingress and egress and public utilities, an easement to construct, operate, and maintain utilities and appurtenances across, over and under the surface of the premises hereinafter described…”
The Hatch appeal brief, filed by Patrick Lopez of Mesch, Clark & Rothschild, notes Kelliher did not cite authorities or explain how he came to his determinations, and points out the word “roadway” is not included in the easement document. Hatch also contends that although the easement refers to ingress and egress, those words refer to “access to and egress from the easement to permit normal operation of the public utilities.” Therefore, the presence of the words “cannot create a dedication of a public roadway as a matter of law,” citing Kadlec v. Dorsey Ariz. (2010).
Kelliher’s ruling that a public roadway exists, states Hatch, runs counter to the rights granted to public utilities to construct on or along the easement property. “Utility poles, power lines, and other utility related obstructions and appurtenances may be constructed or placed within the easement,” notes the brief, supporting the position the land “could not have been intended for a public roadway.”
In the answer to the appeal, Klump’s attorney, Jeanna Chandler Nash of the Udall Law Firm, argues that the easement deed specifically provides a right-of-way easement “to the public” and therefore Hatch does not “have the right to exclude others from using the Easement as a roadway,” citing Scalia v. Green Ariz. 2011. Klump further argues that the public does not lose access to the right-of-way if the land has only been used as a private driveway in recent years.
Was award of attorney's fees appropriate?
The appeal answer says judge Kelliher acted appropriately in awarding summary judgment and attorney fees to Klump, and the judge acted within his discretion in denying the Hatch motion for a new trial.
The Appeals Court is being asked to “reverse the trial court Judgment in (Klump) favor, and direct the trial court to enter Judgment in favor of Hatch.” There is also a challenge to the trial court’s ruling that Hatch must pay $5000 attorney fees to Klump. The appeal asks for the judgment of fees to be reversed, and in its place a judgment be issued awarding attorney fees to Hatch.
In response, Klump argues judge Kelliher was correct in his “interpretation of the Easement Deed” and was within his discretion in denying Hatch a new trial. With respect to attorney fees, Klump notes “the Hatches failed to raise the argument” with the lower court that a fee award was improper and therefore should be “precluded from raising the argument” on appeal.
Oral Arguments, November 2 - Open to public
The November 2 oral arguments will allow each side to argue the case and answer questions from the appellate judges. The hearing is open to the public and starts at 3:00pm in the Court’s chambers on the third floor of 400 West Congress Street in Tucson.
For full article Click Here.
Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com