Arizona Court of Appeals Division One Holds That Proof of Non-Use of An Easement Is Insufficient To Prove Abandonment of the Easement.

The Scalias own two lots in Prescott.  The Greens own three neighboring lots.  In 1987, the Greens’ predecessor in interest granted a non-exclusive easement for ingress/egress and utility access to several lots, including one of the Scalias’.  In 2000, another owner granted the Scalias an exclusive easement for the benefit of one of the Scalias’ lots.  The 2000 easement, which provides similar access as the 1987 easement, runs adjacent to and terminates near the 1987 easement.  In 2003, the same owner granted a non-exclusive easement to other lot owners, including the Greens, covering some of the same ground as the 2000 easement.

The Scalias sued to quiet title of the easements.  The trial court granted summary judgment in favor of the Scalias as to each of the easements.  As a result of the summary judgment, the Greens could not assert any interest in the 1987 easement inconsistent with the Scalias’ interests, the Greens had no interest in the 2000 easement, and the Greens were enjoined from using the 2003 easement.  The Greens appealed.

The Court of Appeals affirmed in part and reversed in part.  The Greens argued that they should not be bound by the 1987 easement because the Scalias abandoned the 1987 easement when they began using the 2000 easement.  Abandonment occurs when an owner voluntarily relinquishes rights to an easement.  Proving abandonment is “difficult” and requires a showing of “affirmative acts rendering use . . . extremely difficult, or unequivocal statements of intent coupled with actions inconsistent with continued existence of the servitude.”  The Greens “offered no facts” other than that the Scalias used the newer, 2000 easement for ingress and egress. The mere fact of “non-use” is legally insufficient to prove abandonment.  Thus, summary judgment was proper as to the 1987 easement.

As to the 2000 and 2003 easements, the trial court agreed with the Scalias that the non-exclusive 2003 easement was void in part.  The 2000 easement stated that it was “exclusively for the” property that the Scalias currently own.  Because the “excluding” language was clear, the Court held that 2003 easement was void to the extent it purported to give others the rights granted in the 2000 easement. 

The trial court erred, however, when it ruled that the Greens had no right at all to the 2003 easement.  Although the 2003 easement covered some of the same ground as the 2000 easement, it was not totally coextensive.  The 2000 easement’s exclusivity could not impact the Greens’ ability to use the 2003 easement outside the boundaries of the 2000 easement.  The Court, therefore, remanded, directing the trial court to modify its order to reflect that limitation.

Judge Johnsen authored the unanimous opinion; Judges Orozco and Gemmill concurred.