Maricopa v. Rovey

                                    IN THE
                              DIVISION ONE

                          MARICOPA COUNTY,


                      JASON HENRY ROVEY, et al.,

                           No. 1 CA-CV 19-0659
                            FILED 12-29-2020

           Appeal from the Superior Court in Maricopa County
                  Nos. CV2017-004191, CV2017-004192
                       CV2017-004308, CV2017-014367
                The Honorable Michael W. Kemp, Judge



Zeitlin & Zeitlin, Phoenix
By Dale S. Zeitlin
Counsel for Defendants/Appellants

Maricopa County Attorney’s Office, Phoenix
By Jean W. Rice
Co-Counsel for Plaintiff/Appellee

Gust Rosenfield, P.L.C., Phoenix
By Scott A. Malm
Co-Counsel for Plaintiff/Appellee
                       MARICOPA v. ROVEY, et al.
                         Opinion of the Court


Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge D. Steven Williams and Judge David D. Weinzweig joined.

T H U M M A, Judge:

¶1            The Roveys appeal from the grant of summary judgment
quieting title to real property in their favor, subject to an easement for
roadway use, and dismissing their claims for trespass and inverse
condemnation. Because the Roveys have shown no error, the judgment is


¶2           The Roveys own, directly or indirectly, parcels of land that
abut portions of Jackrabbit Trail, Yuma Road and Perryville Road in
Maricopa County near the city of Buckeye (collectively, the Disputed
Roads). The Roveys acquired their parcels in 1999, 2012 and 2016.

¶3            The Disputed Roads have been used as public roadways for
decades, including before the Roveys acquired their parcels. The County
paved the Disputed Roads in the 1970s and 1980s and has maintained them
ever since. Warranty deeds that predate the Roveys’ acquisition of their
parcels abutting Jackrabbit Trail and Yuma Road note the existence of the
roadways. These recorded deeds variously declare that the land transferred
was “except the North 33 feet for road,” “except the North and East 33 feet
for road purposes,” “except road on the north” and “except road.”

¶4            In March 2017, the County filed three complaints to condemn
portions of the Roveys’ parcels for planned expansions of Jackrabbit Trail
and Yuma Road. In July 2017, the Roveys sent the County a notice of claim,
asserting that the County’s maintenance of Jackrabbit Trail and Yuma Road
was a trespass on their parcels and also claimed the County was liable for
inverse condemnation. See Ariz. Rev. Stat. (A.R.S.) § 12-821.01 (2020).1 The
County did not respond to the notice of claim. Meanwhile, the Roveys

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

                        MARICOPA v. ROVEY, et al.
                          Opinion of the Court

answered the County’s complaints, counterclaiming for trespass and
inverse condemnation and seeking a judgment quieting title to Jackrabbit
Trail and Yuma Road in their favor. Later in 2017, the Roveys filed a
complaint against the County alleging trespass and inverse condemnation
involving Perryville Road.

¶5            After these actions were consolidated, the County filed an
amended complaint seeking to condemn Jackrabbit Trail and Yuma Road,
but not Perryville Road. The Roveys reasserted their claims and
counterclaims, and the parties cross-moved for summary judgment. In
resolving those motions, the court quieted title to the land under Jackrabbit
Trail and Yuma Road in favor of the Roveys, but ruled the warranty deeds
predating their interests created excepted easements in favor of the County
for public roadway use. The court dismissed the Roveys’ trespass claims as
time-barred, finding the County’s trespass was permanent (meaning the
claim accrued when the trespass began), not continuous. Because the
Roveys acquired their parcels after the Disputed Roads were built, without
a right to payment (which would have been personal, not running with the
land), the court also dismissed their inverse condemnation claims.

¶6            The court then entered a partial final judgment reflecting
these rulings. See Ariz. R. Civ. P. 54(b).2 This court has jurisdiction over the
Roveys’ timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. sections 12-120.21(A)(1) and -2101(A)(1).


¶7             This court reviews the entry of summary judgment de novo,
“viewing the evidence and reasonable inferences in the light most favorable
to the party opposing the motion,” Andrews v. Blake, 

205 Ariz. 236

, 240 ¶ 12
(2003), to determine “whether any genuine issues of material fact exist,”
Brookover v. Roberts Enter., Inc., 

215 Ariz. 52

, 55 ¶ 8 (App. 2007). When
uncontroverted, “facts alleged by affidavits attached to motions for
summary judgment may be considered as true.” Portonova v. Wilkinson, 

128 Ariz. 501

, 502 (1981). The grant of summary judgment will be affirmed if it
is correct for any reason. Hawkins v. State, 

183 Ariz. 100

, 103 (App. 1995).

2 The claims yet to be resolved include the County’s condemnation of
portions of the Roveys’ parcels for planned expansion of Jackrabbit Trail
and Yuma Road.

                       MARICOPA v. ROVEY, et al.
                         Opinion of the Court

I.    The Court Properly Quieted Title in Favor of the Roveys in the
      Jackrabbit Trail and Yuma Road Properties, Subject to Easements
      in Favor of the County for the Roadways.

¶8            The Roveys argue the County never acquired easements for
Jackrabbit Trail and Yuma Road, could not create a public road by
prescription and was required to pay for easements constituting rights of
way. On appeal, however, neither the Roveys nor the County squarely
challenge the superior court’s ruling applying “strips and gores” to
conclude the Roveys hold title to their parcels subject to easements in favor
of the County for the roadways. That ruling defeats the Roveys’ takings
claims regarding easements for Jackrabbit Trail and Yuma Road.

¶9           The Roveys asked the superior court to apply the rule of
“strips and gores” to quiet title to Jackrabbit Trail and Yuma Road in their
favor. Long recognized in Arizona as a rule of construction for real estate
conveyances, the rule of strips and gores rule provides:

             If land abutting on a public way is conveyed by
             a description covering only the lot itself,
             nevertheless, the grantee takes title to the center
             line of the public way if the grantor owned the
             underlying fee, unless the contrary intention
             sufficiently appears from the granting
             instrument itself, or the circumstances
             surrounding the conveyance.

Cottonwood/Verde Valley Chamber of Commerce, Inc. v. Cottonwood Prof’l Plaza

183 Ariz. 121

, 124 (App. 1994) (quoting Torrey v. Pearce, 

92 Ariz. 12

, 16
(1962)). This rule promotes certainty, affirms the presumed intent of the
grantor and reflects that “[o]rdinarily right-of-way lands exist in long
narrow strips or gores and are of no value to a seller when separated from
the adjoining land.”

Id. ¶10

           In asking the superior court to apply strips and gores, the
Roveys argued that “[a]pplying the Supreme Court of Missouri’s reasoning
in Brown v. Weare[, 

152 S.W.2d 649

(Mo. 1941)] makes sense here,” adding
that the case is “directly on point.” But as quoted by the Roveys, Brown also
held that “except road” clauses (like those in prior deeds for the Roveys’
parcels) “meant that the tract was subject to the easement for the right of
way.” Indeed, as explicitly recognized more recently in Missouri, “[a]
corollary rule” applicable to strips and gores “is that a grant of land with
full covenants of warranty, which definitely describes the land conveyed,

                        MARICOPA v. ROVEY, et al.
                          Opinion of the Court

and then excepts or reserves a roadway for the use of the public, . . . conveys
the fee to the entire tract subject to the easement reserved.” Cravens v. Jolly,

623 S.W.2d 569

, 572 (Mo. App. 1981) (citing, inter alia, 

Brown, 152 S.W.2d at 656

); accord, e.g., Lillich v. Lowery, 

320 N.W.2d 463

, 465 (Neb. 1982); Lewis v.
East Texas Fin. Co., 

146 S.W.2d 977

, 980 (Tex. 1941).

¶11            This easement corollary to the strips and gores rule, although
not previously addressed in Arizona, is widely accepted elsewhere. See
W.W. Allen, Description with Reference to Highway as Carrying Title to Center
or Side of Highway, 

49 A.L.R. 2d 982

(1956) (citing cases).

              The established doctrine of the common law is
              that where the lands described in a conveyance
              are abutting, along or bounded by a way, street,
              highway, or road, the conveyance is deemed or
              presumed [to] pass title to the center of the
              abutting roadway, subject to the public
              easement. However, the presumption is not an
              absolute rule of law, but is merely a principle of
              interpretation adopted for the purpose of
              finding out the true meaning of the words used.

12 Am. Jur. 2d Boundaries § 29 (2020) (citing, e.g., Asmussen v. United States,

304 P.3d 552

(Colo. 2013)). This easement corollary has been applied even
when an easement was not expressly recognized before the dispute arose.
See Rall v. Purcell, 

281 P. 832

, 833 (Or. 1929) (noting the words “’to be used
as a roadway’ . . . were inserted for some purpose, and to give them their
proper meaning requires, we think, that they should be construed as a
reservation of an easement”); accord, e.g., Queen City Sav. and Loan Ass’n v.

543 P.2d 355

, 359 (Wash. App. 1975) (citing and following Rall and
cases from California, Kentucky, Michigan and New York).

¶12           Applying this easement corollary to the strips and gores rule,
the chains of title for the Roveys’ parcels involving Jackrabbit Trail and
Yuma Road include express exceptions for road purposes. Moreover, the
Roveys offered nothing to rebut the presumption established by the
easement corollary. Accordingly, the superior court correctly applied the
strips and gores rule, including the easement corollary, in concluding that
the Roveys’ parcels were burdened by excepted easements in favor of the
County for the roadways. As a result, the Roveys have shown no error in
the court’s quiet title determination regarding Jackrabbit Trail and Yuma

                       MARICOPA v. ROVEY, et al.
                         Opinion of the Court

II.    Quiet Title for Perryville Road Was Not Properly Raised or

¶13             The Roveys contend that the superior court quieted title in
their favor for Perryville Road. Not so. The Roveys’ complaint alleged they
own the 33-foot right of way for Perryville Road, but did not seek to quiet
title for that property. The County’s motion for partial summary judgment
did not mention title to Perryville Road. Nor has the County sought to
condemn any portion of Perryville Road.

¶14          In their cross-motion for partial summary judgment, the
Roveys asked the superior court to quiet title for Perryville Road.
Apparently recognizing the Roveys had not included a quiet title claim for
Perryville Road in their pleadings, the court did not quiet title to Perryville
Road. Accordingly, because the issue was not properly joined and the
superior court did not address it, that court did not quiet title to Perryville

III.   The Superior Court Properly Dismissed the Roveys’ Claims for
       Trespass and Inverse Condemnation.

¶15           Because the court properly determined the County holds an
easement to Jackrabbit Trail and Yuma Road, the Roveys’ trespass and
inverse condemnation claims involving those roads fails. However, because
there was no comparable determination regarding Perryville Road, the
question remains whether the superior court properly rejected the Roveys’
trespass and inverse condemnation claims involving Perryville Road.

       A.     Trespass Claim.

¶16           A claim against a public entity must be asserted within one
year after the cause of action accrues, A.R.S. § 12-821, and a notice of claim
must be served on the public entity within 180 days after the cause of action
accrues, A.R.S. § 12-821.01. “We review de novo questions of law
concerning the statute of limitations, including ‘when a particular cause of
action accrues,’ where, as here, such a determination ‘hinges solely on a
question of law rather than resolution of disputed facts.” Rogers v. Bd. of
Regents of Univ. of Ariz., 

233 Ariz. 262

, 265 ¶ 6 (App. 2013) (quoting Montańo
v. Browning, 

202 Ariz. 544

, 546 ¶ 4 (App. 2002)).

                       MARICOPA v. ROVEY, et al.
                         Opinion of the Court

¶17           The date on which a trespass claim accrues depends on
whether the trespass is “continuous” or “permanent.” A claim for
continuous trespass does not accrue until the conduct has ended. See Garcia
v. Sumrall, 

58 Ariz. 526

, 533 (1942). By contrast, a claim for a permanent
trespass accrues when the trespass begins. See City of Phoenix v. Johnson, 

51 Ariz. 115

, 126 (1938).

¶18            The Arizona Supreme Court’s most definitive discussion of
the difference between “continuous” and “permanent” came in a nuisance
case. “In order for a nuisance to be permanent, it is usually necessary that
the nuisance be created by the inherent character of a structure or business
and that its lawful and necessary operation creates a permanent injury.” City
of Tucson v. Apache Motors, 

74 Ariz. 98

, 102 (1952) (emphasis added) (quoting
Shelley v. Ozark Pipe Line Corp., 

37 S.W.2d 518

, 519 (Mo. 1931)). In Johnson,
the city installed a sewer system but failed to operate it properly, causing

odors. 51 Ariz. at 120

. Area landowners brought claims for
destruction of property and interference with comfort and enjoyment.

Id. at 120–21.

Johnson held that, even though the sewer was permanently installed
on the property, the city could have operated the sewer in such a way to
not interfere with the landowners’ use.

Id. at 126.

Accordingly, the city’s
failure was a continuous, not a permanent, trespass.

Id. ¶19

         Applying the Johnson analysis, a public road cannot be
maintained or operated without interfering with the property the Roveys
claim to own. Accordingly, the presence of the Disputed Roads is a
permanent trespass, see City of 

Tucson, 74 Ariz. at 102

; Johnson, 51 at 126,
meaning any trespass claim accrued decades ago, when Perryville Road
was created. As a result, the statute of limitations expired decades ago,
meaning the Roveys’ trespass claim is time-barred.

¶20           The Roveys argue the trespass claim accrued when, after the
Roveys’ notice of claim served in July 2017, the County refused to condemn
the right of way. But a claim for a permanent trespass accrues when the
trespass begins, 

Johnson, 51 Ariz. at 126

, not when the trespasser rejects or
ignores a demand for damages. For these reasons, the Roveys have not
shown the court erred in finding their trespass claim was time-barred.

                       MARICOPA v. ROVEY, et al.
                         Opinion of the Court

       B.     Inverse Condemnation Claim.

¶21            The superior court concluded that any inverse condemnation
claim was personal and had not been expressly conveyed to the Roveys
when they acquired their parcels. Whether a landowner is entitled to
condemnation damages is a question of law subject to de novo review. City
of Phoenix v. Mangum, 

185 Ariz. 31

, 33 (App. 1996).

¶22           A claim for inverse condemnation is personal and does not
pass to a grantee unless the grantor expressly conveys it. “[T]he damages
belong to the owner at the time of the taking and do not pass to a grantee
of the land under a deed made subsequent to that time, unless expressly
conveyed therein.” Boyd v. Atchison, T. & S. F. Ry. Co., 

39 Ariz. 154

, 159
(1931) (emphasis omitted). Boyd reasoned that when a grantee takes title to
land subject to a preexisting burden — in that case, a railroad track — the
grantee is “presumed to know the entire situation,” and cannot therefore
sustain a claim as if the grantee took title to unburdened land.

Id. ¶23

          Here, it is undisputed the Roveys took title to the land
decades after Perryville Road was built. When the Roveys acquired title,
Perryville Road was in use and obvious. Moreover, the documents
transferring title to the Roveys did not also expressly transfer the right to
damages, which was personal and did not run with the land. Accordingly,
the Roveys did not acquire that right.

Id. Nor have the

Roveys shown that
any exception to this Boyd rule should apply.

¶24           The Roveys argue that State ex rel. Miller v. Dawson, 

175 Ariz. 610

(1993) is contrary to the ruling that the inverse condemnation claim
belonged to the former owners because Dawson allowed subsequent
property owners to press an inverse condemnation claim. Dawson,
however, did not expressly address that issue. Nor did Dawson purport to
modify Boyd. Although Dawson allowed an inverse condemnation claim to
proceed, nowhere did it address when the landowners pressing that claim
acquired their interest in the land. Nor did Dawson address whether, if
applicable, the documents transferring the land also expressly conveyed the
right to damages. Instead, Dawson decided that the State cannot acquire an
easement by prescription, a proposition that is not in dispute 

here. 175 Ariz. at 612

. For these reasons, the superior court in this case properly applied
Boyd in concluding that the Roveys do not have a claim for inverse

                      MARICOPA v. ROVEY, et al.
                        Opinion of the Court


¶25           The partial final judgment is affirmed. The County is awarded
its taxable costs incurred on appeal contingent upon its compliance with
Arizona Rule of Civil Appellate Procedure 21.

                          AMY M. WOOD • Clerk of the Court
                          FILED:    JT


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