Rogers v. Arizona Board of Regents (CA2 10/1/13)

“This appeal requires us to determine when a quiet title action for an easement by implication accrues pursuant to A.R.S. 12-821.” If that doesn’t sound as fascinating to you as it does to us then that means you have a life. But whoever wrote this opinion may have too much of one.

The opinion’s statement of the facts is not crystal clear but the bottom line is that the U of A’s experimental farm in Pinal County put up a gate that blocked a nearby landowner from using a road he claimed an easement over. The parties sued each other for declaratory judgment and to quiet title; the landowner added a trespass count. The trial court ruled for the ABOR; the landowner (or, rather, by this time, the successor trustee of his estate) appealed.

The Court of Appeals affirms. The opinion spends some time reciting basics about the law of easements; as often happens in these things, its author seems to have found the subject an exotic and complicated novelty. (That might be true also of “fee simple,” which the opinion throws in a footnote to explain. Its never clear, actually, that the opinion knows greatly more about real-property law than someone read in the hornbook it repeatedly cites.)

The opinion then makes the point that the statute of limitations applies to an action that asserts an interest in someone else’s property, though not to one that seeks merely to quiet title to one’s own. But it goes on and on about this and eventually decides, based on one Utah case, that the former is not  a “true” quiet title action. There may be a basis for this in common-law theory but it will come as a surprise to those who’ve actually practiced Arizona law. It will also surprise those who’ve read the first seven pages of the opinion, in the course of which we’re told that a) an easement is an interest in real property and b) under our statute (12-1101) a quiet-title action can be brought by one who claims an interest in real property. Finally, just in case we’ve left anyone out, it will surprise those who read the next page of the opinion, which admits that quiet-title relief can be granted to one who proves an easement by implication.

Why does the court do this?  Because, having told us in the first paragraph that the issue is when a quiet-title action accrues, halfway through the opinion it changes its mind and says that the issue is “when [the] declaratory judgment claim began to accrue.” Apparently that’s because in the court’s mind this isn’t a “real” quiet-title action but just a DJ.

The statute against the State is one year (that’s 12-821). The gate went up in early 2008; the landowner complained about it, demanded a quitclaim deed for the easement, and threatened suit in September 2008; but he didn’t file until December 2009. So the claim is barred.

On the trespass claim the argument was that it was continuing, i.e., that a new claim arose every time the gate was closed. The court says that it needn’t address that because you can’t have a trespass claim without a property right and the action to establish that right is barred by limitations.

The landowner made a couple of other arguments but we pass over them as they are unenlightening and seem kind of silly.

(link to opinion)