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Dabrowski v. Bartlett - 5/7/2019

Arizona Court of Appeals Division One holds that express easements terminated through merger are not revived through subsequent severance, that the appropriate way to analyze common ownership when two owners are technically different is whether there is effective unified control over the land, and that a private condemnation may be appropriate when a previously reasonable alternative is no longer adequate.


The owner of Lot 2 claimed a right to access his lot over the adjacent Lot 1.  The owner of Lot 1 sued to quiet title.  The owner of Lot 2 counterclaimed, asserting various express or implied easements and in the alternative a private condemnation.  The superior court found no express or implied easement but allowed Lot 2 to privately condemn a route over Lot 1.  The owner of Lot 1 appealed and the owner of Lot 2 cross-appealed.  The Court of Appeals affirmed and remanded for further proceedings on the private condemnation.

Among other things, Lot 2 claimed the benefit of an express easement, created in 2000.  The Court of Appeals rejected this argument, holding that the express easement had been terminated during subsequent periods of common ownership and not revived by subsequent severances.

Lot 2 also claimed an implied way of necessity.  The Court of Appeals rejected this argument because it concluded that Lot 2 had no legal access, and did not show a lack of reasonable access, at the time of the relevant severance.  Along the way, the Court held that the appropriate way to analyze unity of ownership when two owners are technically different is whether there is effectively unified control over the land.

Finally, the Court held that Lot 2 could privately condemn a route through Lot 1 under A.R.S. § 12-1202(A).   The Court held that although there was a previous route that might have been adequate at the time, it was no longer a reasonable alternative.  Lot 2 was also not required to seek alternative routes for which it did not have legal access.  The Court of Appeals therefore remanded for a private condemnation, directing that the superior court was to determine the route if the parties disagreed, that the judgment must contain the route and the amount of compensation for that route, and that Lot 2 will have rights to the route only after compensating Lot 1.  

Judge McMurdie authored the opinion of the Court, in which Judges Campbell and Cattani joined.

Posted by:  Josh Bendor

Posted On: 5/24/2019