                                  IN THE
             ARIZONA COURT OF APPEALS
                               DIVISION ONE


             BOGDAN DABROWSKI, et al., Plaintiffs/Counter-
                 Defendants/Appellants/Cross-Appellees,

                                      v.

    DAVID C. BARTLETT, Defendant/Counter-Claimant/Appellee/Cross-
                           Appellant.

                           No. 1 CA-CV 17-0380
                             FILED 5-7-2019


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-008944
              The Honorable Lori Horn Bustamante, Judge

     AFFIRMED IN PART; REVERSED IN PART; JURISDICTION
       ACCEPTED/RELIEF GRANTED IN PART AND REMANDED
                      WITH INSTRUCTIONS


                                 COUNSEL

MacQueen & Gottlieb PLC, Phoenix
By Benjamin L. Gottlieb (argued), Patrick R. MacQueen
Counsel for Plaintiffs/Counter-Defendants/Appellants/Cross-Appellees

Radix Law, PLC, Scottsdale
By Donald R. Alvarez
Counsel for Defendant/Counter-Claimant/Appellee/Cross-Appellant
                        DABROWSKI v. BARTLETT
                          Opinion of the Court



                                 OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.


M c M U R D I E, Judge:

¶1             Bogdan and Jolanta Dabrowski appeal from a judgment
granting David C. Bartlett a private way of necessity (“private
condemnation”) over the Dabrowskis’ property. Bartlett cross-appeals,
contending he was entitled to either express easement rights or an easement
by implied way of necessity. For the reasons set forth below, we hold that:
(1) an unactivated easement is subject to a merger; (2) a common law
easement by implied way of necessity does not exist if the severance of the
parcel did not cause the lot to lack a reasonable outlet; (3) unity of
ownership for a merger may occur even if the parties are technically
different; (4) in a private condemnation action, a finding that a more
reasonable route exists through the subject property constitutes “bad faith,
oppression, or abuse of power” under Solana Land Co. v. Murphey, 69 Ariz.
117, 125 (1949), precluding the condemnor from condemning its selected
route; and (5) a private condemnation judgment must be satisfied before a
final order of condemnation can issue and an easement recorded.
Accordingly, we affirm the judgment on the easement claims and remand
for the court to determine the route, scope, and cost of the private
condemnation.

             FACTS AND PROCEDURAL BACKGROUND

¶2              The parties dispute whether Bartlett should have access to his
five-acre lot in Cave Creek over the Dabrowskis’ adjacent lot. Both lots were
part of a larger parcel that was split into three lots in 1999, then identified
as Parcels A, B, and C. In 2002, Parcel A was divided into three separate lots
of approximately five acres each, which include the lots now owned by the
Dabrowskis (“Lot 1”) and Bartlett (“Lot 2”) (collectively the “Lots”).




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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

¶3           Until 2007, Rockaway Hills Drive (the “access road”) was the
only road on the land.




                                                     Figure 1

On March 2, 2000, Jack Lewis, the owner of Parcels A and B, declared an
easement that reached Lot 2 through Lot 1 (the “2000 Express Easement”)
and then sold the Lots in Parcel A.




                                                     Figure 2

¶4              In April 2001, Lewis conveyed Parcel B to Andrew C. Jacob in
his capacity as trustee of the ACJ [Andrew C. Jacob] Declaration of Trust
(“Jacob Trust”). On September 18, 2001, Lewis reacquired the Lots via a
trustee’s sale.

¶5             On September 18, 2002, the Town of Cave Creek approved a
lot split (“2002 Lot Split”), which established the Lots as they currently
appear. The survey that accompanied the 2002 Lot Split was prepared for
Jacob and reflected an ingress, egress, and utility easement over Parcel B for
the benefit of Lot 1, similar to the 2000 Express Easement, but did not extend
to Lot 2. The month after the 2002 Lot Split was approved, Lewis conveyed
Lots 1 and 2 to Jacob and his wife.

¶6            Cave Creek approved a second lot split of Parcel A on April
11, 2003, based on a separate survey (“2003 Lot Split”) also prepared for


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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

Jacob. The 2003 Lot Split was recorded on April 12, 2003. The survey,
depicted below, showed an easement over Parcel B reaching the midpoint
of the eastern border of the Lots and did not encumber Lot 1 for the benefit
of Lot 2.




                                                     Figure 3

¶7            The next month, Jacob and his wife sold the Lots to Bartlett
(“Jacob-Bartlett conveyance”). In 2005, Bartlett conveyed Lot 1 to Michael
Hiltner and Julie Mahon but retained Lot 2 in his capacity as a trustee of the
JoshuaBleu Trust (“Bartlett-Hiltner conveyance”). Bartlett did not record an
express easement in connection with the conveyance. The Jacob Trust sold
Parcel B to Bryan Anderson in June 2005.

¶8              In 2007, Hiltner completed construction of a house and
driveway located on Lot 1. Anderson began construction of his house on
Parcel B in 2006, which was completed in 2014. The Dabrowskis acquired
the house and property comprising Lot 1 via a trustee’s sale in January 2012.
A dispute arose shortly thereafter between the Dabrowskis and Bartlett
regarding Bartlett’s access to Lot 2, leading to the Dabrowskis filing suit to
quiet title in 2013. Bartlett counterclaimed, alleging that he was entitled to
an implied way of necessity, an implied easement of necessity, or in the
alternative, a private condemnation across Lot 1. Bartlett later added a
counterclaim alleging that he had express access rights via the 2000 Express
Easement. At the time of trial, the land appeared as follows:




                                      4
                        DABROWSKI v. BARTLETT
                          Opinion of the Court




                                                        Figure 4

¶9            The superior court granted summary judgment to the
Dabrowskis on Bartlett’s express easement claim, finding that the 2000
Express Easement had terminated by a merger. The parties proceeded to a
bench trial on the remaining claims. Following the trial, the court ruled that:

       [T]he 2003 Lot Split did not create a valid easement, there is
       no express easement, and there is no implied easement at this
       time over the Dabrowski property in favor of the Bartlett lot.
       The court further finds there is no other adequate alternative
       access to Bartlett’s property. Accordingly, [Arizona Revised
       Statutes (“A.R.S.”) section] 12-1202 allows a [private
       condemnation] under the circumstances presented in this
       case.

The court allowed Bartlett to “select the route location and nature of the
[private condemnation] ensuring the greatest amount of deference to the
privacy and concerns of the Dabrowskis,” ordered Bartlett to “compensate
the Dabrowskis for the easement over their property,” and requested
simultaneous briefing regarding the values of the available routes, stating
that it could not “provide a value based upon the testimony provided at the
hearing.”

¶10            In the post-trial briefing, the Dabrowskis submitted affidavits
from a real estate appraiser, their trial expert, and Bogdan Dabrowski. They
sought compensation ranging from $96,000 to $433,250 depending on
Bartlett’s choice of route. Bartlett objected, contending the affidavits had not
been disclosed or offered at trial. The court overruled his objection and
determined compensation for three potential routes as follows:

       “Graham #1” Easement = $37,200

       “Graham #2” Easement = $36,000


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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

       “Slyder” Easement = $96,250

The considerably higher value assigned to the Slyder Easement reflected
the increased burden the easement posed on the Dabrowskis’ property. On
Bartlett’s motion for reconsideration, the court allowed him to present
rebuttal evidence concerning value but affirmed its compensation
determinations.

¶11           Bartlett submitted a proposed form of judgment. The
Dabrowskis objected to the proposed judgment and asked the court to
order Bartlett to compensate them when the easement was recorded, and to
impose several new requirements on Bartlett, including: (1) indemnifying
them for any liability resulting from construction; (2) repairing and
maintaining their driveway following construction; (3) preserving
unspoiled nature beyond 20 feet of the easement width; and (4) requiring
Bartlett and his successors and assignees to equally share in future costs of
the maintenance and repair of the shared roadway. The court rejected the
Dabrowskis’ requests and entered a partial final judgment ordering Bartlett
to choose either the Graham #2 or Slyder Easement and to compensate the
Dabrowskis before “constructing a roadway . . . or by June 1, 2017,
whichever is earliest.” The judgment is silent on the timing of the recording.
The court also ordered the parties to bear their attorney’s fees and costs,
ruling that Bartlett’s statement of costs was untimely.

¶12          The Dabrowskis timely appealed, and Bartlett timely
cross-appealed.

                               DISCUSSION

A.     We Have Appellate Jurisdiction Over Some of the Claims Raised
       by the Parties and We Exercise Special Action Jurisdiction to
       Decide the Remaining Claims.

¶13            Although neither party has raised the issue, we have an
independent obligation to determine whether we have appellate
jurisdiction, Robinson v. Kay, 225 Ariz. 191, 192, ¶ 4 (App. 2010), and we
must dismiss an appeal over which we lack jurisdiction, Davis v. Cessna
Aircraft Corp., 168 Ariz. 301, 304 (App. 1991). Because “[p]ublic policy is
against deciding cases piecemeal,” our jurisdiction over appeals generally
is “limited to final judgments which dispose of all claims and all parties.”
Musa v. Adrian, 130 Ariz. 311, 312 (1981); see also A.R.S. § 12-2101. However,
Arizona Rule of Civil Procedure 54(b) permits the superior court to enter
an appealable final judgment on fewer than all claims in a case, Garza v.
Swift Transp. Co., 222 Ariz. 281, 284, ¶ 13 (2009), when the judgment


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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

“dispose[s] of at least one separate claim of a multi-claim action,” Davis, 168
Ariz. at 304. We review de novo whether the superior court has
appropriately certified a judgment as final and appealable under Rule 54(b).
Davis, 168 Ariz. at 304.

¶14            Here, the superior court included language from Rule 54(b) in
the judgment, indicating portions of the judgment were not final but did
not note which parts. The parties appealed and briefed the judgment in its
entirety. “Certification under Rule 54(b), however, ‘does not give this court
jurisdiction to decide an appeal if the judgment in fact is not final, i.e., did
not dispose of at least one separate claim of a multi-claim action.’” Grand v.
Nacchio, 214 Ariz. 9, 16, ¶ 17 (App. 2006) (quoting Davis, 168 Ariz. at 304).
“[A] claim is separable from others remaining to be adjudicated when the
nature of the claim already determined is ‘such that no appellate court
would have to decide the same issues more than once even if there are
subsequent appeals.’” Cont’l Cas. v. Superior Court, 130 Ariz. 189, 191 (1981)
(quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)). Here, the
quiet title action and the private condemnation action are severable. The
judgment regarding the Dabrowskis’ quiet title action and Bartlett’s claims
of an equitable interest through Lot 1 are final. Thus, we have appellate
jurisdiction to review the quiet-title judgment.

¶15             Conversely, Bartlett’s cross-claim for a private condemnation
is not final. The final route has not yet been determined, the Dabrowskis
have not been compensated, and the court has not entered the final order
of condemnation. Therefore, we do not have appellate jurisdiction over
those claims. See Nacchio, 214 Ariz. at 16, ¶ 17. However, when parties
mistakenly raise issues from a non-appealable order, we have the discretion
to sua sponte accept special action jurisdiction and consider the merits of the
claims. See State v. Bayardi, 230 Ariz. 195, 197–98, ¶ 7 (App. 2012) (appeal
treated as a special action when parties appealed from a superior court
minute entry); Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35 (App. 2001) (after
finding appellate jurisdiction lacking, court sua sponte accepted special
action jurisdiction); see also A.R.S. § 12-120.21(A)(4); Ariz. R.P. Spec. Act.
1(a). We accept special action jurisdiction here because the parties have
fully briefed and argued the issues, the superior court has ruled on the
claims, and the non-final issues would likely be raised on appeal after a
final judgment. We also accept special action jurisdiction because the
judge’s order raises questions of first impression—which are particularly
appropriate for special action review—concerning the application of Article
2, § 17 of the Arizona Constitution and A.R.S. § 12-1126(B). See Chartone, Inc.
v. Bernini, 207 Ariz. 162, 165–66, ¶¶ 8–9 (App. 2004).



                                       7
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

B.     In the Quiet Title Action, the Court Did Not Abuse Its Discretion
       by Finding the Dabrowskis Proved That There Was Not an
       Easement Over Their Property—Either Express or Implied.

¶16          The Dabrowskis initially brought an action for quiet title
under A.R.S. § 12-1101(A):

       An action to determine and quiet title to real property may be
       brought by any one having or claiming an interest therein,
       whether in or out of possession, against any person . . . when
       such person . . . claims an estate or interest in the real
       property which is adverse to the party bringing the action.

Bartlett’s counterclaim asserted that he was entitled to either (1) an express
easement; (2) an easement of implied necessity; or (3) an implied easement
by way of necessity.

¶17             We review a grant of summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party. BMO Harris Bank,
N.A. v. Wildwood Creek Ranch, LLC, 236 Ariz. 363, 365, ¶ 7 (2015). For issues
resolved at trial, we consider the evidence presented in the light most
favorable to upholding the court’s rulings. Town of Marana v. Pima County,
230 Ariz. 142, 152, ¶ 46 (App. 2012). But we review the court’s conclusions
of law de novo and may draw legal conclusions from facts found or inferred
from the judgment. FL Receivables Tr. 2002-A v. Ariz. Mills, L.L.C., 230 Ariz.
160, 166, ¶ 24 (App. 2012); In re Estate of Musgrove, 144 Ariz. 168, 170 (App.
1985). To the extent the superior court’s decision was based on an
interpretation and application of the law, we review its decision de novo.
Freeman v. Sorchych, 226 Ariz. 242, 247, ¶ 11 (App. 2011).

       1.     The Court Did Not Err by Finding the 2000 Express
              Easement Terminated as to the Lots.

¶18            Bartlett claims the court erred by finding he did not have an
express easement through Lot 1 via the 2000 Express Easement. The
superior court determined that the 2000 Express Easement merged when
the Lots came under common ownership between 2001 and 2003.
Specifically, the superior court found that the Lots were under common
ownership on three occasions: (1) under Lewis in 2001; (2) under Jacob in
2002; and (3) under Bartlett from 2003 until he sold Lot 1.

¶19           Merger applies, and an easement terminates, when one party
obtains both the greater and the lesser interest in the same property without
any intermediate interests in other hands. Flood Control Dist. of Maricopa


                                      8
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

County v. Paloma Inv. Ltd. P’ship, 230 Ariz. 29, 41, ¶ 39 (App. 2012). In such
cases, the lesser interest is extinguished. Id.

¶20           While Bartlett recognizes the general proposition, he argues
that an express easement is not “activated” until the parcels are severed,
and—as to portion of the easement granting Lot 2 access through Lot 1—the
express easement did not merge because the Lots were not commonly
owned at any time after the Bartlett-Hiltner conveyance that severed the
parcels. He cites no authority, however, for the proposition that easements
that have not been activated are not subject to a merger, and we decline to
so hold.

¶21           As there is no Arizona authority directly on point, we look to
the Restatement (Third) of Property (Servitudes) (“Restatement (Third)”).
See Paxson v. Glovitz, 203 Ariz. 63, 67, ¶ 21, n.3 (App. 2002) (“In the absence
of contrary precedent, Arizona courts look to the Restatement.”). The
Restatement (Third) does not exempt easements that have not been
activated by separate ownership from the merger. The comments instead
provide that merger applies “when the burdens and benefits are united in
a single person, or group of persons” because “the servitude ceases to serve
any function” and “no one else has an interest in enforcing the servitude.”
Restatement (Third) § 7.5 cmt. a.

¶22           The benefits and burdens of the 2000 Express Easement were
unified during the three periods in which the superior court found common
ownership. The fact that those benefits and burdens were later severed in
subsequent conveyances did not by itself activate or recreate the easement.
See Restatement (Third) § 7.5 cmt. b (“A subsequent conveyance of the
property that results in separate ownership of the previously dominant and
servient estates raises the question whether the parties can re-create the
servitude that previously existed on the property without complying with
the requirements set forth in Chapter 2. Under the rule stated in this section
they cannot.”). Indeed, an express easement could not have been
reestablished without a writing that complied with the statute of frauds.
A.R.S. § 44-101(6) (statute of frauds applies to “an agreement . . . for the sale
of real property or an interest therein”); Owens v. M.E. Schepp Ltd. P’ship,
218 Ariz. 222, 228, ¶ 24 (2008) (“The statute of frauds enacts a clear
legislative prohibition against enforcement of an oral agreement for the
conveyance of land.”); Restatement (Third) § 2.7.

¶23          Because Bartlett admitted he did not record any document
creating an easement from the Bartlett-Hiltner conveyance, we conclude
that the superior court correctly granted summary judgment on Bartlett’s


                                       9
                       DABROWSKI v. BARTLETT
                         Opinion of the Court

express easement claim because Lot 2 did not have access via an express
easement through Lot 1.

      2.     The Court Did Not Abuse Its Discretion by Finding Bartlett
             Was Not Entitled to an Implied Easement of Necessity
             Through Lot 1.

¶24           Lot 2 also does not have an implied easement of necessity
through Lot 1. An implied easement of necessity requires: (1) a single tract
of land arranged in a manner where one portion of the land derives a benefit
from the other; (2) unity of ownership; (3) severance of the land into two or
more parcels; (4) long, continued, obvious use of the subservient land, to a
degree which shows permanency—by the dominate land—prior to the
severance; and (5) the use of the claimed easement must be essential to the
beneficial enjoyment of the dominate land. See Porter v. Griffith, 25 Ariz.
App. 300, 302 (1975).

¶25            When the Lots were severed in 2005, no road connected Lot 1
to Lot 2, nor did Lot 1 have a connection to the access road on Parcel B. See
supra ¶ 3, Figure 1. Thus, Bartlett failed to show that at the time of the
Bartlett-Hiltner conveyance there was a long, continued, and obvious use
of Lot 1 for the benefit of Lot 2.

      3.     The Court Did Not Abuse Its Discretion by Finding Bartlett
             Was Not Entitled to an Easement by Implied Way of
             Necessity Through Lot 1.

¶26           Bartlett contends that the Bartlett-Hiltner conveyance caused
his lot to become landlocked, resulting in an easement by implied way of
necessity. “Under the common law, where land is sold that has no outlet,
the vendor by implication of the law grants ingress and egress over the
parcel to which he retains ownership, enabling the purchaser to have access
to his property.” Bickel v. Hansen, 169 Ariz. 371, 374 (App. 1991). The
doctrine derives from the presumption that when a party conveys the
property, it conveys “whatever is necessary for the beneficial use of that




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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

property and retains whatever is necessary for the beneficial use of the land
he still possesses.” Id. 1

¶27            Under the common law, to obtain an easement by implied
way of necessity through Lot 1, Bartlett was required to prove: (1) both
properties were under common ownership; (2) the properties were then
severed; (3) there is no reasonable or adequate outlet for one of the
properties; and (4) the need for reasonable access through the severed
property existed at the time of severance. See Coll. Book Ctrs., Inc. v. Carefree
Foothills Homeowners’ Ass’n, 225 Ariz. 533, 541, ¶ 30 (App. 2010); Bickel, 169
Ariz. at 374. If an implied way of necessity exists, it may survive through
multiple conveyances and is not affected by use or the lack thereof. Bickel,
169 Ariz. at 375. As explained below, Bartlett failed to prove that he was
entitled to the common law easement by implied way of necessity because
he was unable to show that it was the severance of the Lots that caused his
property to lack an adequate outlet.

             i.       At the Time of Severance, the Lots Did Not Have an
                      Express Easement Through Parcel B.

¶28           Bartlett argues that at the time of Bartlett-Hiltner conveyance,
he had an express easement from Lot 1 through Parcel B to the access
road—as evidenced by the 2000 Express Easement—giving the Lots a
reasonable outlet and therefore the severance of the Lots caused his lot to
lack an outlet. The Dabrowskis contend that the Lots’ access through Parcel
B terminated through merger when Jacob owned the Lots and Parcel B
concurrently in 2002. Bartlett maintains that there was no unity of
ownership because Jacob, as trustee for the Jacob Trust, owned Parcel B,
while Jacob and his wife jointly owned the Lots.

¶29           In 2000, Lewis—the then owner of the Lots and Parcel
B—recorded an express easement, providing access from Lot 1 through
Parcel B to the access road. See supra ¶ 3, Figure 2. In March 2000, Jacob, as
trustee of the Jacob Trust, purchased Parcel B. Jacob and his wife then
purchased the Lots in December 2002. Before Jacob and his wife purchased


1      Because neither party raised the issue of whether granting a common
law easement by implied way of necessity is proper under Article 2, § 17 of
the Arizona Constitution and the legislature’s prescribed remedy for
landlocked property in A.R.S. § 12-1202, we assume without deciding that
a conveyance that causes a property to become landlocked may be entitled
to an easement by implied way of necessity.



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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

the Lots, Allan Gray prepared a lot survey for Jacob showing the Lots’
access through Parcel B, but not following the 2000 Express Easement. Jacob
applied for and received certification for the 2002 Lot Split, and it was
recorded. The month before selling the Lots to Bartlett, Jacob obtained
another lot survey from Gray. Jacob again applied to the Town of Cave
Creek to certify the 2003 Lot Split, which was done, and the 2003 Lot Split
was recorded. See supra ¶ 6, Figure 3.

¶30            Arizona courts have not addressed the concept of merger
relating to the unity of ownership when the parties involved share interests
but are technically different. In this case, two technically different owners
were involved: Jacob Trust owned Parcel B while Jacob and his wife owned
the Lots. Other jurisdictions, however, have applied a control test to
establish unity of ownership. See Cosmopolitan Nat’l Bank v. Chicago Title &
Tr. Co., 131 N.E.2d 4 (Ill. 1955); Houston Bellaire, Ltd. v. TCP LB Portfolio I,
L.P., 981 S.W.2d 916 (Tex. App. 1998).

¶31              In Houston Bellaire, the court, looking to Cosmopolitan,
concluded that although “the ownership of the two lots was technically
different, . . . ‘[t]here was, in effect, common ownership of both properties
sufficient to indicate the ability to arrange and adapt the property in a
manner sufficient to satisfy rules of property in the establishment of
easement by implication.’” Houston Bellaire, 981 S.W.2d at 920–21 (quoting
Cosmopolitan, 131 N.E.2d at 7). The court concluded that the parties “with
the power to arrange and adapt the properties” did arrange matters in a
way that created an implied easement. Id.

¶32            As an owner of the Lots and the trustee of the trust that owned
Parcel B, the evidence shows Jacob had the power to arrange and adapt the
properties. First, Jacob commissioned the 2002 Lot Split when Parcel B was
owned by Jacob Trust. Jacob and his wife purchased the Lots after the Town
of Cave Creek approved the lot split, and the survey was recorded. Next,
Ian Cordwell, the Director of Planning and the Zoning Administrator for
the Town of Cave Creek, testified that Jacob applied for a building permit
for Lot 2 on March 11, 2003. The town would not approve a building permit
unless the owner of the property could show that each lot had access from
a dedicated public right of way to the parcel itself. At the time of Jacob’s
application for the building permit, he indicated that Lot 2 lacked access.
Subsequently, Jacob again commissioned Gray to create the 2003 Lot Split,
which provided access to Lot 2 without burdening Lot 1. Jacob then applied
for the lot split, which was approved and recorded. Cordwell, who
accepted both lot splits, testified that he believed the 2003 Lot Split was



                                      12
                       DABROWSKI v. BARTLETT
                         Opinion of the Court

intended to establish an access point for Lot 2 through Parcel B and served
as a replacement to the 2002 Lot Split.

¶33           Jacob obtained and recorded lot splits that depicted access to
the Lots through various access points in Parcel B immediately preceding
Lewis’s sale to Jacob and Jacob’s sale to Bartlett. The 2002 and 2003 Lot
Splits demonstrated that Jacob, as the trustee, exercised the control over
Parcel B required to situate the land in a manner that benefited the Lots
when Jacob and his wife purchased the Lots, and again as the seller of the
Lots. As the Lots’ seller, Jacob arranged access through Parcel B in a manner
that was beneficial to the Lots, but detrimental to Parcel B, because of the
proximity of the shared driveway to the location of the proposed home on
Parcel B. Such control is sufficient to conclude that there was unity of
ownership over the Lots and Parcel B. We conclude that Jacob’s concurrent
ownership extinguished any express easement that existed on Parcel B
concerning the Lots. There was approximately a quarter mile between Lot
1’s eastern boundary and the access road, for which the Lots did not have
legal access—via an express easement—at the time of the Jacob-Bartlett
conveyance. See supra, ¶ 3, Figure 1. Accordingly, the Lots did not have an
express easement through Parcel B at the time of severance.

           ii.      Bartlett Failed to Show Sufficient Evidence of the
                    Need for Reasonable Access at the Time of the
                    Bartlett-Hiltner Conveyance.

¶34           Without legal access, Bartlett was required to show that at the
time of the Bartlett-Hiltner conveyance he lacked reasonable access to his
property. Bartlett argues that Lot 2 does not have—and never has
had—access through Parcel B. However, as noted above, immediately
before selling the Lots to Bartlett, Jacob applied for a building permit
concerning Lot 2 and recorded the 2003 Lot Split. The 2003 Lot Split was
recorded before the Jacob-Bartlett conveyance and was listed as an
exception in Bartlett’s title report for the Jacob-Bartlett conveyance.

¶35           Michael Johnson, Bartlett’s and Hiltner’s architectural
designer, testified that the 2003 Lot Split was provided to him when he
began designing the Bartlett and Hiltner homes in 2006. He testified that
there were “a lot of different discussions because of the confusion” of the
two access points. Johnson stated that at some point Bartlett and Hiltner
agreed to follow the entrance point through Lot 1 to cut costs and create
less disturbance by sharing a driveway and utility site. With that plan, most
of the disturbance fell on Lot 1, allowing Bartlett to build the larger home
he wanted on Lot 2. Johnson also recalled that he wanted the driveway to


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                        DABROWSKI v. BARTLETT
                          Opinion of the Court

conform with the 2003 Lot Split, but Bartlett refused. Ultimately, Johnson
testified that Bartlett and Hiltner could not reach an agreement, and Hiltner
built his driveway and home without Bartlett’s assistance.

¶36           Although Bartlett asserted that he has always understood
access to Lot 2 would be through Lot 1, he could not point to a recorded
document to support that understanding. Bartlett insists that it was both his
and Hiltner’s intent that the shared driveway would follow the 2000
Express Easement. However, the completed Lot 1 driveway does not
conform with the 2000 Express Easement; instead, it follows the 2002 Lot
Split. Moreover, Bartlett failed to record an express easement granting
access for Lot 2 through Lot 1 at the time of the Bartlett-Hiltner conveyance,
although he stated that access through Lot 1 was the parties’ intent. Bartlett,
a mortgage broker at the time, failed to disclose his need for access through
Lot 1 in the seller property disclosure statement, which he provided in
connection with the Bartlett-Hiltner conveyance. The placement of the
driveway and Bartlett’s subsequent actions in connection with the
Bartlett-Hiltner conveyance do not support Bartlett’s contention that Lot 2’s
access was intended through the 2000 Express Easement.

¶37            There is conflicting evidence in the record regarding the
intended access point for the Lots at the time of the Jacob-Bartlett
conveyance. The superior court weighed the credibility of the witnesses
along with the other evidence and concluded there was no implied way of
necessity between the Lots. Given that the 2003 Lot Split indicates a
reasonable access point for both lots, the superior court did not abuse its
discretion by finding Bartlett failed to establish that Lot 2 lacked reasonable
access in 2005 at the time of the severance. See Coll. Book, 225 Ariz. at 542,
¶ 32 (failing to present evidence to establish a lack of an outlet at the time
of severance prevents a party from prevailing in an action for an implied
way of necessity). We defer to the superior court’s resolution of the
evidence presented. FL Receivables Tr., 230 Ariz. at 166, ¶ 24.

       4.     The Dabrowskis Prevailed in the Quiet Title Action.

¶38           The Dabrowskis prevailed in the quiet title action because
they proved title to the property and that Bartlett had neither an express or
implied easement over the Lot 1. Therefore, the Dabrowskis contend the
superior court erred by not awarding their attorney’s fees and costs under
A.R.S. §§ 12-1103(B) and 12-341.01(A). We review the court’s decision
declining to award fees for an abuse of discretion. Vicari v. Lake Havasu City,
222 Ariz. 218, 224, ¶ 23 (App. 2009).




                                      14
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

¶39           Because the Dabrowskis did not correctly request fees under
A.R.S. § 12-341.01(A), the superior court did not abuse its discretion by
refusing to award them. See Ariz. R. Civ. P. 54(g)(1) (“A claim for attorney’s
fees must be made in the pleadings or in a Rule 12 motion filed before the
movant’s responsive pleading.”); Klesla v. Wittenberg, 240 Ariz. 438, 441,
¶ 13, n.2 (App. 2016) (“Contractual attorneys’ fees must be pleaded and
proved like any other contract claim, as part of the proponent’s case in
chief.”).

¶40           However, the superior court found that Bartlett was the
prevailing party in the quiet title action because “[he] is entitled to an
easement created by private condemnation.” The court erred. The
Dabrowskis originally sued for quiet title. The court concluded that Bartlett
did not have a legal interest in Lot 1; thus, the Dabrowskis prevailed in the
quiet title action. The Dabrowskis also requested attorney’s fees under
A.R.S. § 12-1103(B) 2 and complied with the statutory requirements for such
an award. Accordingly, we vacate the superior court’s conclusion that
Bartlett was the prevailing party and remand for the court to enter
judgment for the Dabrowskis in the quiet title action, and—in the court’s
discretion—it may award attorney’s fees under A.R.S. § 12-1103(B). See also
Scottsdale Mem’l Health Sys., Inc. v. Clark, 164 Ariz. 211, 215 (App. 1990)
(“[T]he trial court may consider the same factors that are considered in
determining whether to award attorney’s fees pursuant to A.R.S. section
12-341.01.”).

C.     The Court’s Ruling that Bartlett Proved the Private Condemnation
       is Supported by the Evidence.

¶41             “Arizona law permits a landowner to engage in private
condemnation when land ‘is so situated with respect to the land of another
that it is necessary for its proper use and enjoyment to have and maintain a

2      A.R.S. § 12-1103(B) provides:
       If a party, twenty days prior to bringing the action to quiet
       title to real property, requests the person, other than the state,
       holding an apparent adverse interest or right therein to
       execute a quit claim deed thereto, and also tenders to him five
       dollars for execution and delivery of the deed, and if such
       person refuses or neglects to comply, the filing of a disclaimer
       of interest or right shall not avoid the costs and the court may
       allow plaintiff, in addition to the ordinary costs, an attorney’s
       fee to be fixed by the court.



                                       15
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

way of necessity.’” Siemsen v. Davis, 196 Ariz. 411, 414, ¶ 9 (App. 2000)
(quoting A.R.S. § 12-1202(A)). “A landowner seeking to condemn a private
way of necessity over the lands of another must show a ‘reasonable
necessity’ for the taking.” Id.

¶42          With respect to the private condemnation action, the
Dabrowskis claim the court erred by: (1) awarding Bartlett private
condemnation through Lot 1; (2) finding that the Slyder easement was a
viable easement choice; (3) failing to award the Dabrowskis additional
compensation for the private condemnation; (4) not requiring that the
one-time payment for the private condemnation be paid when the easement
is recorded; and (5) not imposing additional conditions on Bartlett in
connection with the private condemnation.

       1.     The Court Did Not Abuse Its Discretion by Determining
              Bartlett is Entitled to a Private Condemnation.

¶43            The Dabrowskis argue that Bartlett is not entitled to private
condemnation because the superior court erred by concluding that the 2003
Lot Split did not constitute an express easement, and the existence of the
alternative route precludes Bartlett from seeking a private condemnation
through their lot. We do not need to decide whether the 2003 Lot Split
evidences a valid easement because the mere fact that an alternate legal
outlet is available to Bartlett does not, as a matter of law, preclude him from
condemning a way over Lot 1. See Solana, 69 Ariz. 117, 125 (1949) (“[T]he
condemnor need not show an absolute necessity for the taking, a reasonable
necessity being sufficient.”).

¶44            When determining whether a reasonable necessity exists, the
court looks to whether the proponent of the private condemnation has an
alternative legal route that is both adequate and reasonable. See, e.g., Tobias
v. Dailey, 196 Ariz. 418, 422, ¶ 14 (App. 2000). Because there is sufficient
evidence in the record to support the superior court’s conclusion that
“[t]here is no other adequate alternative access” to Lot 2, the court did not
abuse its discretion by ordering a private condemnation.

¶45          The route on the 2003 Lot Split may have been reasonable and
adequate at the time of the Jacob-Bartlett conveyance. However,
subsequent events show that it may no longer be a reasonable alternative.
Anderson testified that at the time he purchased Parcel B, the land only
contained the access road and a well. After acquiring Parcel B, Anderson
constructed a home, and the access road now leads to his driveway and
garage. The Town of Cave Creek requires a road or driveway that services



                                      16
                         DABROWSKI v. BARTLETT
                           Opinion of the Court

more than one single-family residence to be 16 feet wide with shoulders on
each side that are at least two feet wide. To obtain a building permit from
the Town of Cave Creek, Bartlett needs a 20-foot-wide easement for the
entirety of the easement through the Anderson property. The Anderson
driveway is currently 11–12 feet wide and some portions of the driveway
have no shoulder at all. Anderson’s utilities are on the west side of the
driveway, and there is solid rock to the east. In short, the current
specifications of the driveway do not comply with the Rural/Metro Fire
Department standards for a roadway servicing more than one residence.
Civil engineer Christopher Wilson testified that the amount of disturbance
that would result from building the road following the 2003 Lot Split would
leave approximately 90 square feet available for the actual home on
Bartlett’s lot.

¶46          These facts support the superior court’s finding that there is
no other adequate and reasonable alternative access to Lot 2 and its
conclusion that Bartlett is entitled to a private condemnation.

                  i.   Bartlett is Not Required to Seek Alternative Routes.

¶47            The Dabrowskis argue that Bartlett is not entitled to a private
condemnation because Bartlett failed to establish both that “the Town of
Cave Creek would not allow Bartlett to build a roadway to the west or south
of Bartlett’s Lot” and that he “could not obtain an easement to the west or
south of his Lot.” Thus, the Dabrowskis contend, Bartlett failed to show a
reasonable necessity for the taking. The Dabrowskis do not offer legal
authority for this contention. Bartlett was not obligated to explore
alternative outlets for which he did not have legal access. See Solana, 69 Ariz.
at 125 (“There is no merit to defendants’ contention that [the statute
permitting residents to petition to establish a highway], gives to plaintiff an
appropriate and expedient method of obtaining a means of ingress and
egress to its property by petitioning the board of supervisors for the
establishment of a county highway. . . . [P]roviding for condemnation at the
instance of a private party the framers of our constitution as well as the
legislature affirmatively rejected such a contention.”). The court found that
Bartlett’s potential legal access was inadequate, and thus correctly granted
him a private condemnation through Lot 1.

            ii.        The Evidence Does Not Show               that   Bartlett
                       Voluntarily Landlocked Lot 2.

¶48          Finally, the Dabrowskis maintain Bartlett is not entitled to
private condemnation because Bartlett voluntarily landlocked himself. For



                                      17
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

support, they cite to Gulotta v. Triano, 125 Ariz. 144 (App. 1980). In Gulotta,
the owners severed their land into parcels, leaving the plot they intended
to keep landlocked. Id. at 145. The owners testified that the buyers would
not have completed the sale with a permanent easement. Id. The owners
entered into a contract with the buyers for a temporary easement through
the property, which would terminate at the earlier of two years or upon the
completion of a new road. Id. After completion of the road, the owners
sought private condemnation through a neighboring parcel, which would
grant them access to the new road. Id. The owners claimed they were
landlocked, or alternatively, that even if the easement had not terminated,
the access through the sellers’ land was “so inadequate as to make the
private right-of-way they seek reasonably necessary.” Id. This court denied
the private condemnation, stating:

       It is obvious from the terms of the agreement for the sale of
       the delicatessen property that [the owners] appreciated the
       danger of losing access to the property they retained. Whether
       they terminated or merely limited their right of ingress and
       egress in order to complete that sale, they did so voluntarily
       without first obtaining an alternative access way. The
       necessity, if any, for a right-of-way across defendants’
       property was created by their own voluntary act. For that
       reason alone they are not entitled to the extraordinary remedy
       afforded by § 12-1202.

Id.

¶49           The Dabrowskis contend Bartlett “successfully maximized
the marketability for the Dabrowski Lot and reaped the financial benefits
of a higher purchase price ($440,000), only to thereafter invoke the
protections of A.R.S. § 12-1202.” They point to the fact that Bartlett did not
disclose his need for an easement in the seller property disclosure statement
when conveying Lot 1 to Hiltner. But unlike Gulotta, there is no evidence
that Bartlett appreciated the danger of losing his access or voluntarily
relinquished access to seek a private condemnation from the Dabrowskis.
This is especially true because the 2003 Lot Split indicated a way to the
access road through Parcel B. Therefore, we cannot say that the superior
court abused its discretion by awarding Bartlett a private condemnation.




                                      18
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

       2.     The Superior Court Must Ultimately Determine the Route
              of a Private Condemnation.

¶50            The Dabrowskis argue that the court erred by allowing
Bartlett to choose among three routes and ordering him to “select the route
location and nature of the private way of necessity ensuring the greatest
amount of deference to the privacy and concerns of the Dabrowskis.” After
a court determines that a reasonable necessity exists, “the condemnor
makes the initial selection and in the absence of bad faith, oppression or
abuse of power its selection of route will be upheld by the courts.” Solana,
69 Ariz. at 125.

¶51             Our courts have not opined on what constitutes “bad faith,
oppression, or abuse of power” in a private condemnation action. In cases
of private condemnation, the parties have competing interests, and
ultimately it is for the court to settle such differences. See also Siemsen, 196
Ariz. at 417, ¶ 25 (“Such lawsuits, as we have indicated, engage strong
competing interests and values. To resolve them calls for delicate judgment
and a close consideration of all applicable facts.”). We hold that absent an
agreement, the condemnee may present evidence to the court—including
evidence regarding the feasibility, cost, and other relevant details of a
specified route—showing that under the circumstances, a more reasonable
route exists. If the court determines that the condemnee’s suggested route
is more reasonable, the condemnee will have made a sufficient showing of
bad faith, oppression, or abuse of power. Accord A.R.S. § 12-1115(A)
(eminent domain statute) (“Where land is required for public use, the
state . . . may survey and locate the land, but it shall be located in the
manner which will be most compatible with the greatest public good and
the least private injury.”); Queen Creek Summit, LLC v. Davis, 219 Ariz. 576,
580, ¶ 19 (App. 2008) (condemnor in eminent domain action must show that
it balanced the “greatest public good” and the “least private injury” when
choosing the location, and condemnee can rebut the showing by
establishing that the selection is “unnecessarily injurious”).

       3.     The Judgment Must be Satisfied Before a Final Order of
              Condemnation is Issued and the Easement Recorded.

¶52           The Dabrowskis raise several issues relating to the court’s
order concerning the route, timing of the payment, and terms of the private
condemnation. The order provided Bartlett with two options and directed
that payment be made before a specified date or before construction on the
road begins, “whichever is earliest.” The parties dispute whether the taking




                                      19
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

occurs at the time of judgment, payment, recording, or construction of the
roadway.

¶53            Our constitution is clear: “No private property shall be taken
or damaged for public or private use without just compensation having first
been made, paid into court for the owner [or] secured by bond as may be
fixed by the court . . . .” Ariz. Const. art. 2, § 17 (emphasis added); see also
A.R.S. § 12-1124 (in an eminent domain proceeding, the court “shall set
aside and annul the entire proceeding[]” when the condemnee is unable to
collect payment). “When the final judgment has been satisfied . . . the court
shall make a final order of condemnation, describing the property
condemned and the purposes of the condemnation.” A.R.S. § 12-1126(A).
“The title to the land does not vest in the [condemnor] until ‘the final order
of condemnation’ is made by the court . . . .” State ex rel. Morrison v. Helm,
86 Ariz. 275, 280 (1959) (quoting Pool v. Butler, 74 P. 444, 446 (Cal. 1903)).

¶54            A court’s final judgment of condemnation must include the
route, decided by the court if contested, and the amount of compensation
for that route. The valuation of the property is determined as the value at
the time of the taking. See City of Scottsdale v. CGP-Aberdeen, L.L.C., 217 Ariz.
626, 634, ¶ 36 (App. 2008) (“[W]hen the condemnee offers evidence of a gap
in time between the summons date and the date of the taking during which
the value of the property increased, the court must determine the date of
the taking and whether the value of the property on that date is the same as
the value provided for in the statute.”). 3

¶55              Only after the judgment is satisfied, and the court issues the
final order of condemnation, can the condemnor record “[a] copy of the
order . . . in the office of the county recorder of the county . . . in which the
property is located, and thereupon the property described shall vest in [the
condemnor] for the purposes therein specified.” A.R.S. § 12-1126(B).
Accordingly, Bartlett has no rights to the land until after he compensates
the Dabrowskis.

¶56         Finally, concerning the parties’ contributions for
maintenance, “the owners of the easement have the shared duty to repair
and maintain the easement.” Freeman, 226 Ariz. at 247, ¶ 13. The parties


3      Bartlett appeals the court’s allowance of post-trial evidence to
determine the property’s value. We decline to address the issue because the
“taking” has not yet occurred and upon remand the court may admit
additional evidence.



                                       20
                        DABROWSKI v. BARTLETT
                          Opinion of the Court

should work together to agree upon terms for the final order that will
minimize future litigation. To the extent that the parties cannot agree on the
details of the private condemnation, Freeman addresses the parties’ rights
to contribution when neither the document creating the easement nor a
separate agreement between the parties specifies otherwise. See id. at
250–51, ¶ 24.

             ATTORNEY’S FEES AND COSTS ON APPEAL

¶57           Both sides request costs and attorney’s fees incurred in this
appeal and cross-appeal under A.R.S. §§ 12-1103(B) and 12-341.01(A).
Although we affirmed the superior court’s judgment entitling Bartlett to a
private condemnation, we denied relief on Bartlett’s cross-appeal and
reversed the court’s determination of the prevailing party in the quiet title
action. Therefore, neither party was entirely successful, and we decline to
award fees or costs to either party.

                               CONCLUSION

¶58            We affirm the superior court’s judgment that Bartlett is not
entitled to a common law easement, but reverse and remand for the entry
of judgment in favor of the Dabrowskis in the quiet title action.
Accordingly, we vacate the denial of the Dabrowskis’ request for attorney’s
fees, and remand for the court to reconsider the award of attorney’s fees to
the Dabrowskis as the prevailing parties. We affirm the superior court’s
determination that Bartlett is entitled to a private condemnation but vacate
the portion of the order concerning the route, compensation, terms, and
scope, and remand for further proceedings consistent with this opinion.




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




                                       21
