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Underwood v. Wilczynski - 12/16/2021

Court of Appeals Division Two holds property with legal access to outlet but without existing roadway was entitled to use portion of federal right-of-way to construct a roadway across neighboring properties.


The dispute involved three neighboring parcels of residential land, all subject to a 33-foot federal land patent (FLP) right-of-way along their boundaries.  The owner of the western parcel sued his two adjacent neighbors after they built a north-south dirt roadway on the right-of-way centered between the three parcels.  Before the roadway was constructed, the southeastern parcel did not have physical access to the main street.

The two eastern parcel owners successfully moved for summary judgment on the theory the right-of-way entitled them to construct the roadway along the three parcels’ shared boundary.  The western parcel owner appealed, arguing the southeastern parcel already had an express easement across the northeastern parcel by way of the FLP right-of-way and an implied easement of necessity across the same arising when the two eastern parcels were severed from common ownership.

The Court of Appeals affirmed.  First, the Court explained an implied easement only exists when severance landlocks a parcel.  Because the southeastern parcel already had a recorded express FLP right-of-way over the other two parcels at severance that provided legal access to an outlet, no implied easement existed.

Next, the Court declined the western parcel owner’s request to extend Neal v. Brown, 219 Ariz. 14 (App. 2008)—which held a parcel owner could not enforce an easement when he already had an adequate “roadway” to access his property—to parcel owners who had legal access but no physical roadway.  The Court reasoned such an extension would require courts to determine priority among identical FLP rights-of-way originally intended to create adequate roadway access.

The Court vacated and remanded portions of the judgment relating to the size and scope of the entitlement.

Judge Espinosa authored the opinion of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom joined.

Posted by: Payslie M. Bowman

Posted On: 1/5/2022