Arizona Court of Appeals Division Two Holds That A Private Party May Not Acquire a Prescriptive Easement Over a Railway.

Tumacacori Mission Land Development, Ltd. (“TMLD”) owns property abutting Union Pacific’s railway.  TMLD’s principal and employees used a closed, unobstructed railroad crossing to access the property for over ten years before Union Pacific obstructed it in 2004 or 2005.  TMLD then sued Union Pacific to quiet title, alleging it had obtained an easement by prescription across the railway.  The trial court granted summary judgment in favor of Union Pacific, finding that TMLD could not obtain any private property interest over Union Pacific’s railway because it is a public highway held for public.  TMLD appealed.

On appeal, the Arizona Court of Appeals upheld the trial court’s decision, holding that a private party may not acquire a prescriptive easement over a railway.  In Arizona, a party ordinarily may obtain an easement by prescription if it can establish that the land in question has actually and visibly been used for ten years, the use began and continued under a claim of right, and the use was hostile to the title of the true owner.  A party may not, however, acquire a prescriptive easement over a public highway.  Because the plain language of Article XV, section 10, of the Arizona Constitution unambiguously declares railways to be “public highways,” the Court concluded that TMLD could not, as a matter of law, obtain a prospective easement over the railway. 

Judge Espinosa authored the opinion; Judges Vasquez and Howard concurred.