Fix et al v. Union Pacific Railroad Company

Filing 107

ORDER DENYING defendant's motion for summary judgment (doc. 87 ). IT IS ORDERED DENYING plaintiffs' motion for summary judgment (doc. 89 ). IT IS ORDERED DENYING defendant's motion to strike (doc. 99 ). Signed by Senior Judge Frederick J Martone on 4/22/2014.(KMG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA.. 8 9 Paul Fix, et al., Plaintiffs, 10 11 vs. 12 Union Pacific Railroad Company, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-13-00083-PHX-FJM ORDER 15 16 17 The court has before it defendant’s motion for summary judgment (doc. 87), plaintiffs’ 18 response (doc. 91), defendant’s reply (doc. 96), and plaintiffs’ motion for summary judgment 19 (doc. 89), defendant’s response (doc. 94), and plaintiffs’ reply (doc. 98). We also have 20 before us defendant’s motion to strike the affidavits of Geraldine Fix and John Utz (doc. 99), 21 plaintiffs’ response (doc. 102), and defendant’s reply (doc. 103). 22 I. Background 23 In 1998, plaintiff Geraldine Fix and non-party Elmo D. Murphy, “as co-trustees of the 24 Murphy Family Trust,” purchased a 53-acre lot located at 35507 West Interstate 8, west of 25 Gila Bend, Arizona (the “Fix Property” or the “Property”). DSOF ¶1. The Property 26 contained an empty steel building which Geraldine and her husband, Paul Fix, intended to 27 use for their manufacturing business, All Seasons Energy. Paul Fix asserts that he operated 28 All Seasons Energy from the Property continuously from 1998 until January 2010 when the 1 railroad crossing owned by defendant Union Pacific was closed (the “Crossing”). Plaintiffs 2 contend that once the Crossing was closed, the Property became landlocked. 3 The Fix Property is bordered by Paloma Irrigation and Drainage District’s canal to the 4 south and west, private property to the east, and Union Pacific’s railroad tracks to the north. 5 State Route 85, which provides access to Interstate 8, is located 4 miles east of the Fix 6 Property. DSOF ¶ 5. There is a 4.5 mile graded dirt road which runs parallel to the Canal 7 south of the Fix Property connecting to State Route 85. Id. The dirt road runs through 8 several privately owned parcels east of the Fix Property before reaching State Route 85. Id. 9 The neighboring parcels were commonly owned until 1957 when the Fix Property was 10 subdivided and sold. Id., ex. C. 11 Before January 6, 2010, the Crossing provided plaintiffs with access to Interstate 8. 12 Plaintiffs acknowledge that there was neither a written nor oral agreement with Union Pacific 13 regarding their use of the Crossing. On October 7, 2008, Union Pacific posted a Notice of 14 Crossing Closure, indicating that the site was selected for closure and inviting interested 15 parties to contract Union Pacific. On January 6, 2010, 15 months after the Notice was first 16 posted, and having received no responses from any interested parties, Union Pacific 17 employees removed the wood crossing panels on the track and dug out and removed the earth 18 on the dirt approaches to the Crossing, making it impassable. DSOF ¶ 10. On September 19 15, 2010, 8 months after the closure, plaintiff Paul Fix sent a letter to Union Pacific 20 requesting that the Crossing be reopened. Plaintiffs filed this action on January 14, 2013, 21 claiming that they have acquired a prescriptive easement over Union Pacific’s right of way. 22 Plaintiffs contend that the Crossing has been used by plaintiffs and their predecessors for 23 more than 80 years on a continual basis as the only ingress or egress to the Property, and that 24 the closing of the Crossing has left the Property landlocked. 25 Plaintiffs present two claims for relief in their Third Amended Complaint (doc. 104). 26 Count 1 asserts a claim for prescriptive easement, and Count 2 a claim for private way of 27 necessity under A.R.S. §§ 12-1201 and 12-1202. Union Pacific filed a counterclaim seeking 28 a declaration that plaintiffs do not have an easement or any other interest in the Crossing. -2- II. Standing 1 2 Union Pacific first contends that it is entitled to summary judgment because plaintiffs 3 lack standing. Plaintiffs in this case are named “Paul and Geraldine Fix dba All Seasons 4 Energy and Geraldine Fix Trust aka Murphy Family Trust dated March 14, 1985, Geraldine 5 Fix, Trustee.” Third Amended Compl. Nevertheless, Union Pacific argues that there is no 6 evidence showing that any named plaintiff is the owner of the Property and therefore all of 7 plaintiffs’ claims must be dismissed for lack of standing. 8 We agree with defendant that Paul and Geraldine Fix dba All Seasons Energy do not 9 own the Property and therefore do not have standing to assert the claims in this case. A 10 tenant cannot assert a claim for a prescriptive easement. “It is the landlord, the holder of fee 11 title, who must assert any prescriptive rights that accrue as a result of the tenant’s adverse 12 use.” Ammer v. Arizona Water Co., 169 Ariz. 205, 210, 818 P.2d 190, 195 (Ct. App. 1991). 13 Only the owner of the fee title, the Murphy Family Trust, and Geraldine Fix as trustee, have 14 standing to bring this action. 15 In support of her standing, Geraldine Fix submitted an affidavit stating that she is the 16 trustee of the Murphy Family Trust, and that the Geraldine Fix Trust is also known as the 17 Murphy Family Trust. Union Pacific moves to strike the affidavit,1 arguing that its contents 18 were not properly disclosed (doc. 99). 19 We deny Union Pacific’s motion to strike (doc. 99). “An objection to (and any 20 argument regarding) the admissibility of evidence offered in support of or opposition to a 21 motion must be presented in the objecting party’s responsive or reply memorandum and not 22 in a separate motion to strike or other separate filing.” LRCiv 7.2(m)(2). Union Pacific’s 23 separate motion to strike violates LRCiv 7.2(m)(2) and it is therefore denied (doc. 99). The 24 Fix affidavit is properly considered in response to Union Pacific’s standing challenge. Under 25 Rule 21, Fed. R. Civ. P., we may add or drop a party at any time upon just terms. Misjoinder 26 27 28 1 Union Pacific’s motion to strike the John Utz affidavit is denied for the same reasons we deny the motion to strike the Fix affidavit. -3- 1 is not a ground for dismissing an action. The Third Amended Complaint and the Fix 2 affidavit adequately demonstrate that Geraldine Fix, as trustee of the Murphy Family Trust, 3 has standing to assert the claims presented in this case. III. Prescriptive Easement 4 5 The existence of a prescriptive easement is determined under Arizona law. To acquire 6 a prescriptive easement, a person must establish that (1) the land in question has actually and 7 visibly been used for ten years, (2) that the use began and continued under a claim of right, 8 and (3) the use was hostile to the title of the true owner of the land. Paxon v. Glovitz, 203 9 Ariz. 63, 50 P.3d 420, 424 (Ct. App. 2002). “If the use is permissive, it cannot ripen into an 10 easement by prescription because it is neither ‘hostile’ nor ‘adverse’ to the owner’s title.” 11 Id. 12 Citing Tumacacori Mission Land Dev., Ltd. v. Union Pac. R.R. Co., 228 Ariz. 100, 13 263 P.3d 649 (Ct. App. 2011), Union Pacific continues to argue that “a private party may not 14 obtain a prescriptive easement over a railway.” We have already rejected this argument. 15 (Doc. 41). Curtis v. Southern Pac. Co., 39 Ariz. 570, 574, 8 P.2d 1078, 1079 (1932), 16 expressly upheld the right of private users to obtain a prescriptive easement over a railroad 17 crossing. The case remains the definitive ruling of the Arizona Supreme Court. Tumacacori, 18 which broadly declared railways to be public highways for all purposes, was driven by an 19 extraordinarily rigid approach to statutory construction. Moreover, an intermediate appellate 20 court is without authority to modify a holding of a court of last resort. 21 Paul Fix asserted that he used the Property continuously from 1998 until 2010, with 22 intermittent use between 2006 and 2008 when his wife became ill. He contends that he used 23 the Crossing openly and continuously and under a claim of right in excess of ten years. Mr. 24 Fix’s use as a tenant may be credited to the landowner (the Murphy Family Trust) in 25 establishing the landowner’s prescriptive right. Ammer, 169 Ariz. at 195, 818 P.2d at 210. 26 Contrary to Mr. Fix’s affidavit, Michael Mahoney, who lived and worked next door 27 to the Property from 2006 to 2011, testified that the Property was unoccupied, vacant, and 28 abandoned from 2006 to 2011. Mr. Mahoney stated that he never witnessed any business -4- 1 activity at the Property, and never saw anyone regularly use the Property or the Crossing. 2 Therefore, issues of fact exist as to whether the Fixes’s use of the Property was sufficient to 3 create a prescriptive easement. A jury must decide whether the Fixes’s use was continuous, 4 open, and hostile. Both parties’ motions for summary judgment on Count 1 are denied (docs. 5 87 and 89). 6 IV. Statutory Right of Necessity 7 We similarly conclude that material issues of fact exists with respect to plaintiffs’ 8 claim to a statutory right of necessity. Under A.R.S. § 12-1202(A), a private landowner may 9 condemn and take lands of another when the land “is so situated with respect to the land of 10 another that it is necessary for its proper use and enjoyment to have and maintain a private 11 way of necessity.” A landowner seeking to condemn a private way of necessity over the 12 lands of another must show a “reasonable necessity” for the taking. Solana Land Co. v. 13 Murphey, 69 Ariz. 117, 125, 210 P.2d 593, 598 (1949). A statutory way of necessity “comes 14 into existence only if no other access exists by common law implication.” Bickel v. Hansen, 15 169 Ariz. 371, 375, 819 P.2d 957, 961 (Ct. App. 1991). Where an adequate alternative 16 access is available, “the statutory way of necessity does not exist because the purportedly 17 landlocked land is not, in fact, hemmed in.” Id. Landowners seeking condemnation have the 18 burden of proving the absence of an adequate alternative outlet. Siemsen v. Davis, 196 Ariz. 19 411, 414, 998 P.2d 1084, 1087 (Ct. App. 2000). 20 The issue before us, therefore, is whether plaintiffs have an alternative outlet by 21 common law implication. Plaintiffs do not dispute that there is alternative access to the 22 Property by way of a 4.5 mile dirt road across the neighboring parcels to the east of the 23 Property that connects to State Route 85. There are two potential problems with this 24 alternative. First, there is an issue whether the owners of the neighboring parcels are 25 required parties under Rule 19, Fed. R. Civ. P. The neighboring property owners would not 26 be bound by a decision rendered in their absence. 27 Second, plaintiffs present evidence that the dirt road becomes flooded and impassable 28 several times a year during the monsoon season. An alternative access will not foreclose a -5- 1 statutory right of necessity if “the alternate route is unreasonable or inadequate.” Tobias v. 2 Dailey, 196 Ariz. 418, 422, 998 P.2d 1091, 1095 (Ct. App. 2000). Although reasons such 3 as convenience or expense alone “cannot form the basis for taking of the private property,” 4 Bickel, 169 Ariz. at 374, 879 P.2d at 960, if an alternate route is impassable during certain 5 times of the year, it is not an adequate alternative. 6 7 8 Because material issues of fact exist as to the adequacy of the dirt road as an alternate route, Union Pacific’s motion for summary judgment on Count 2 is denied. V. Conclusion 9 IT IS ORDERED DENYING defendant’s motion for summary judgment (doc. 87). 10 IT IS ORDERED DENYING plaintiffs’ motion for summary judgment (doc. 89). 11 IT IS ORDERED DENYING defendant’s motion to strike (doc. 99). 12 DATED this 22nd day of April, 2014. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?