                    NOTICE: NOT FOR OFFICIAL PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
            ARIZONA COURT OF APPEALS
                                DIVISION ONE


                   JOANN B. SPORE, Plaintiff/Appellant,

                                        v.

            GEORGE CAMPEAU, et al., Defendants/Appellees.

                            No. 1 CA-CV 16-0081
                              FILED 1-24-2017


           Appeal from the Superior Court in Navajo County
                       No. S0900CV201400526
                The Honorable Ralph E. Hatch, Judge

                     REVERSED AND REMANDED


                                  COUNSEL

Criss Candelaria Law Office, P.C., Concho
By Criss E. Candelaria
Counsel for Plaintiff/Appellant

Jeffrey M. Proper PLLC, Phoenix
By Jeffrey M. Proper
Counsel for Defendants/Appellees
                           SPORE v. CAMPEAU
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


M c M U R D I E, Judge:

¶1            Appellant Joanne Spore appeals the superior court’s
summary judgment for appellees George and Mary Ellen Campeau,
individually and as trustees of the George and Mary Ellen Campeau Trust,
on her claims for declaratory judgment, injunctive relief, and trespass. For
the following reasons, we reverse and remand for further proceedings.

                 FACTS AND PROCEDURAL HISTORY

¶2           Spore and the Campeaus are neighboring property owners
whose properties are accessed via Fir Drive, an unpaved, 30-foot wide
easement that serves as a public-use roadway that allows utility and
emergency services access along the road. The property interests of the
appellant and appellees in regard to Fir Drive differ in that while the
western half of Fir Drive is owned by Spore, the eastern half is owned by a
non-party neighboring landowner. The Campeaus, as other area
landowners, simply utilize the roadway for access to their property.

¶3           In 2014, prompted by safety concerns arising from vehicles
speeding along Fir Drive, the Campeaus, with the consent of other
neighboring landowners, erected a gate to block vehicle traffic along the
road.1 They also placed debris on both sides of the gate to block vehicles
from bypassing it. The Campeaus provided a key to Spore, but insisted that
the gate would remain unlocked.

¶4            In September 2014, Spore filed this action asserting a claim for
trespass against the Campeaus and requesting a declaratory judgment that
the Campeaus had improperly blocked Fir Drive because the road was
either dedicated to public use and must remain open and unobstructed for
public and emergency access, or her private driveway. Effectively, while

1      There is evidence that a gate had previously been located on the road,
but it had fallen into disrepair.



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                           SPORE v. CAMPEAU
                           Decision of the Court

Spore did not assert the Campeaus could not use the portion of Fir Drive
that was located on her property, she objected to the construction of the
gate. She asked the superior court to enter an injunction compelling the
Campeaus to open the gate. After a hearing, the court granted Spore a
temporary restraining order, finding that Spore could not easily operate the
gate because of her age and the condition of the road. The court ordered the
Campeaus to remove the debris to allow Spore to drive around the gate and
ordered that the gate remain unlocked.

¶5            The Campeaus then installed a replacement gate that was
larger and easier to operate, and graded the area around the replacement
gate to prevent water from pooling. The Campeaus installed a “dummy”
lock on the replacement gate that made it appear locked, but did not
actually lock it. After another hearing, the superior court denied Spore’s
petition for contempt related to the Campeaus’ installation of the
replacement gate.

¶6            Spore then moved for summary judgment, arguing no
genuine issue of material fact existed because the only issue before the court
was the legal status of Fir Drive and the undisputed evidence showed that
it was a public roadway that could not be blocked. The Campeaus
cross-moved for summary judgment, asserting that Fir Drive is a private
road and the replacement gate was necessary and not an unreasonable
burden on Spore. Spore argued in response that a material question of fact
existed regarding whether the gate was an unreasonable burden on her
access. The superior court granted summary judgment for the Campeaus,
noting that Spore had agreed at oral argument that the road is owned by
the adjacent landowners, and rejected Spore’s argument that a question of
fact existed regarding whether the replacement gate unreasonably
restricted Spore’s access to Fir Drive.

¶7          Spore timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes section 12-2101(A)(1).2

                               DISCUSSION

¶8           Spore argues the superior court erred by granting summary
judgment for the Campeaus because a genuine issue of material fact existed


2      We cite the current version of applicable statutes unless revisions
material to this decision have occurred since the relevant events.




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                            Decision of the Court

regarding whether the gate unreasonably restricts Spore’s access to her
property.3

¶9            The superior court must grant summary judgment when the
moving party shows no material facts are in dispute and the party is
entitled to judgment as a matter of law. Ariz. R. Civ. P. 56(a). This court
reviews a trial court's ruling on cross-motions for summary judgment de
novo, viewing the facts in the light most favorable to the party against whom
summary judgment was granted. In re Estate of Gardner, 230 Ariz. 329, 331
(App. 2012).

¶10          As stated above, the parties’ rights differ with respect to the
western half of Fir Drive, which is owned by Spore, and the eastern half of
Fir Drive, which is owned by a non-party neighboring landowner.

¶11            The western half of Fir Drive belongs to Spore, and the public
has an easement that allows it to traverse the road. However, that right does
not allow the Campeaus or other neighboring landowners to enter and erect
a permanent gate on Spore’s property. See Pinkerton v. Pritchard, 71 Ariz.
117, 125 (1950) (defendant’s easement to use land for road purposes did not
allow it to construct a fence or other structures on it). In Pinkerton, the court
stated

              The rights of any person having an easement in
              the land of another are measured and defined
              by the purpose and character of the easement;
              and the right to use the land remains in the
              owner of the fee so far as such right is consistent
              with the purpose and character of the easement.
              The servient estate will not be burdened to a
              greater extent than was contemplated or
              intended at the time of the creation of the
              easement.



3     Spore confines her argument on appeal to whether the superior court
erred by finding no material dispute of fact on the issue of unreasonable
interference under Hunt v. Richardson, 216 Ariz. 114, 124 (App. 2007), and
does not argue that Fir Drive was a common-law roadway dedication. See
Pleak v. Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 420-21 (2004).
Accordingly, we do not address that issue.




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                           SPORE v. CAMPEAU
                           Decision of the Court

Id. (citations omitted). Accordingly, the superior court erred by granting
summary judgment for the Campeaus on Spore’s request for declaratory
judgment and trespass claims insofar as the claims concerned the western
half of Fir Drive.

¶12            We next consider whether the Campeaus and other
neighboring landowners were within their rights to erect the gate on the
eastern half of Fir Drive, which is owned by the landowners to the east of
the road and burdened by a public use easement.4 Under Arizona law, if
the terms of an easement do not preclude construction of an improvement,
the court must consider and balance the parties’ interests by examining
whether the improvement (1) is necessary for the use of the servient estate
and (2) does not unreasonably interfere with the right of passage.5 Hunt,
216 Ariz. at 121, ¶ 23. While these are generally questions of fact, a court
may nevertheless determine these issues as a matter of law if there is no
material dispute of fact in the record. Orme Sch. v. Reeves, 166 Ariz. 301, 309
(1990) (trial court should grant summary judgment “if the facts produced
in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.”).

¶13            Spore does not challenge the necessity of the gate to the
servient landowner, but contends the superior court erred by ruling that
there is no issue of material fact regarding whether the gate unreasonably
interferes with her access to the property. We do not agree with Spore that
the court may never conclude as a matter of law that a gate does or does not
unreasonably interfere with passage. See Hunt, 216 Ariz. at 124 ¶¶ 33-34
(Because the evidence supported differing conclusions, the court could not
state as a matter of law whether a gate unreasonably interfered with
passage over an easement). We do agree, however, that the evidence in this
case supports different conclusions about the reasonableness of the
interference created by the replacement gate.

¶14         Spore offered evidence that she has trouble walking, cannot
drive around the replacement gate, and has difficulty opening the gate


4      The gate was donated by Rocky and Jennet Kansel, who own the
adjacent property to the east of Fir Drive.
5     An improvement may be considered “necessary” so long as it is
appropriate to the use of the property, even if it is not essential to the
property’s use. Hunt, 216 Ariz. at 123 ¶ 28.



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                          SPORE v. CAMPEAU
                          Decision of the Court

because the locking mechanism is on the opposite side of the gate. In
contrast, the Campeaus submitted evidence that the gate is easy to open
and remains unlocked. Given this clear factual dispute, the superior court
erred by ruling that no material question of fact exists as to whether the
replacement gate unreasonably restricts Spore’s access because it can be
easily opened and is not locked. Orme Sch., 166 Ariz. at 311 (summary
judgment is not appropriate if the trial court must make an assessment of
the credibility of witnesses with differing versions of material facts or
choose among competing or conflicting inferences).

                              CONCLUSION

¶15            For the foregoing reasons, we reverse the superior court’s
summary judgment for the Campeaus and remand for further proceedings
consistent with this decision. We deny the Campeaus’ request for an award
of attorney’s fees, and will award costs to Spore upon her compliance with
Arizona Rule of Civil Appellate Procedure 21.




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




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