We try to keep things interesting but on the other hand we need to post something once in a while. We’re looking at three new opinions – a mechanic’s lien dispute, a claim by a guy who wants to control how much his aunt gets from her trust so that there’ll be more for him when she dies, and a case about an easement over a railway. The first has no interest, the second proves only that expectancies do bad things to the mind, and we’ve always kinda liked railroads.

Tumacacori claimed a prescriptive easement when the UP blocked a crossing Tumacacori had used for years. It had an Arizona Supreme Court case (Curtis 1932) that said you could do that but Curtis apparently didn’t notice that the Arizona Constitution says that “railways . . . are hereby declared public highways.” (Actually, we’d be willing to bet, if there were any way to prove it, that Alfred Lockwood knew that perfectly well. The career of his daughter the politician has blocked public memory of a man who probably forgot more law than she ever acquired.) You can’t get an easement over a public highway. So the Court of Appeals explains that Tumacacori can’t have the easement because the Constitution says what it says and means what it means.

Except when it doesn’t. Tumacacori apparently advanced several reasons why treating railroads legally as highways would lead to absurd results. The Court of Appeals doesn’t exactly tell us what those reasons were, preferring that we take it on faith that Tumacacori’s lawyers were being absurd to use the word “absurd.” But to cover itself the court then tells us that “the legal conclusion that railways are not subject to prescriptive easements does not necessarily mean they are highways under any and all conceivable scenarios.” What? Well, then, when are they not highways? Is that not what the Constitution means after all?

OF course, we see this all the time. Some seem to feel that they solve logical problems, rather than create them, by saying that X definitely means Y for today’s purposes though it might not for others down the line. If you’re going to do that then you have to be able, at the same time, to posit the circumstances by which today’s logic would cause X to mean other things. Otherwise you’re simply explaining that logic is not what you’re serving today and the bloggers can eat cake.

(link to opinion)