                                                                       FILED BY CLERK
                              IN THE COURT OF APPEALS                     AUG 31 2011
                                  STATE OF ARIZONA                          COURT OF APPEALS
                                    DIVISION TWO                              DIVISION TWO




TUMACACORI MISSION LAND                       )
DEVELOPMENT, LTD., an Arizona                 )    2 CA-CV 2011-0010
limited partnership,                          )    DEPARTMENT B
                                              )
                       Plaintiff/Appellant,   )    OPINION
                                              )
                  v.                          )
                                              )
UNION PACIFIC RAILROAD                        )
COMPANY, a Delaware corporation,              )
                                              )
                     Defendant/Appellee.      )
                                              )

      APPEAL FROM THE SUPERIOR COURT OF SANTA CRUZ COUNTY

                                    Cause No. CV09711

                 Honorable Kimberly A. Corsaro, Judge Pro Tempore

                                        AFFIRMED


Gregory L. Droeger                                                                Nogales
                                                          Attorney for Plaintiff/Appellant

Beaugureau, Hancock, Stoll & Schwartz, P.C.
 By Anthony J. Hancock and Terrance L. Sims                                     Phoenix
                                                        Attorneys for Defendant/Appellee


E S P I N O S A, Judge.

¶1           In this action to quiet title to an alleged prescriptive easement,

plaintiff/appellant Tumacacori Mission Land Development, Ltd. (TMLD) appeals from
the trial court‟s grant of summary judgment in favor of defendant/appellee Union Pacific

Railroad Co. (Union Pacific) on the ground a private party may not acquire a prescriptive

easement over a railway. For the following reasons, we affirm.

                     Factual Background and Procedural History

¶2            “In reviewing the trial court‟s grant of a motion for summary judgment, we

state the facts in the light most favorable to the part[y] who opposed the motion.” Ammer

v. Ariz. Water Co., 169 Ariz. 205, 207, 818 P.2d 190, 192 (App. 1991). TMLD owns

property abutting Union Pacific‟s railway. TMLD‟s principal and employees used a

closed, unobstructed railroad crossing to access the property “very frequently, sometimes

on a daily basis,” for over ten years before Union Pacific obstructed it in 2004 or 2005.

TMLD thereafter sued Union Pacific to quiet title, alleging it had obtained an easement

by prescription across the railway. The trial court granted summary judgment in favor of

Union Pacific, finding that TMLD “cannot obtain any private property interest over

[Union Pacific]‟s railway because it is a public highway held for public use” under article

XV, § 10 of the Arizona Constitution.        We have jurisdiction over TMLD‟s appeal

pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

                                        Discussion

¶3            The entry of summary judgment is appropriate “if the pleadings,

deposition[s], answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the



                                             2
moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). 1 “In

reviewing a motion for summary judgment, we determine de novo . . . whether the trial

court properly applied the law.” Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216

Ariz. 195, ¶ 15, 165 P.3d 173, 177 (App. 2007).

¶4            TMLD argues the trial court erred in ruling a private party cannot obtain a

prescriptive easement over a railway under article XV, § 10 of the Arizona Constitution.

That section states:

                     Railways heretofore constructed, or that may hereafter
              be constructed, in this state, are hereby declared public
              highways and all railroads are declared to be common carriers
              and subject to control by law. All electric, transmission,
              telegraph, telephone, or pipeline corporations, for the
              transportation of electricity, messages, water, oil, or other
              property for profit, are declared to be common carriers and
              subject to control by law.

Our constitution thus expressly designates all railways in the state as public highways.2


       1
        Although some facts surrounding TMLD‟s use of the alleged easement are
disputed, none of these facts is material because we conclude the trial court correctly
determined that a party may not acquire a prescriptive easement over a railway regardless
of the nature and extent of its use. See Ariz. R. Civ. P. 56(c)(1).
       2
        We find no Arizona authority specifically defining the term “railway.” See, e.g.,
A.R.S. § 40-201 (defining “[r]ailroad” and “[s]treet railroad,” but not defining “railway”).
We therefore attribute to the word its ordinary meaning. See Sierra Tucson, Inc. v. Pima
County, 178 Ariz. 215, 219, 871 P.2d 762, 766 (App. 1994). Dictionary definitions of
“railway” include “a line of track providing a runway for wheels,” Webster’s Ninth New
Collegiate Dictionary 973 (1991), and similarly, “[a] track providing a runway for
wheeled equipment,” The American Heritage Dictionary 1023 (2d college ed. 1982).
The definition was similar around the time our constitution, including article XV, § 10,
was adopted. See Webster’s New International Dictionary of the English Language 1765
(1919) (defining “railway” as “[a] line of rails or track providing a runway for wheels . . .
sometimes called railroad”). We therefore limit our analysis to acquisition of
                                              3
¶5           An easement is a right that one party has to use the land of another for a

specific purpose. Ammer, 169 Ariz. at 208, 818 P.2d at 193. Ordinarily, a party may

obtain an easement by prescription if it can establish that „“the land in question has

actually and visibly been used for ten years, . . . the use began and continued under a

claim of right, and the use was hostile to the title of the true owner.”‟ Spaulding v.

Pouliot, 218 Ariz. 196, ¶ 14, 181 P.3d 243, 248 (App. 2008), quoting Paxson v. Glovitz,

203 Ariz. 63, ¶ 22, 50 P.3d 420, 424 (App. 2002) (alteration omitted). However, a party

may not acquire a prescriptive easement over a public highway. See Cracchiolo v. State,

6 Ariz. App. 597, 600, 435 P.2d 726, 729 (1967) (generally no easement can be acquired

over property owned by state, particularly if held for public use); Calhoun v. Moore, 69

Ariz. 402, 405, 214 P.2d 799, 801 (1950) (no adverse possession of state land); Edwards

v. Sheets, 66 Ariz. 213, 217-18, 185 P.2d 1001, 1003-04 (1947) (same); see also

Spaulding, 218 Ariz. 196, ¶ 24, 181 P.3d at 250 (we apply principles relating to adverse

possession and prescriptive easements interchangeably). Thus, to decide whether TMLD

may obtain a prescriptive easement, we first must determine whether the trial court

correctly interpreted article XV, § 10 in characterizing the railway as a public highway.



prescriptive easements across railroad tracks. See Miss. Export R.R. Co. v. Rouse, 926
So. 2d 218, ¶¶ 9, 11, 13 (Miss. 2006) (active railroad tracks are public highways under
Mississippi Constitution and therefore immune from prescriptive easement). We do not
address the question whether a party could acquire a prescriptive easement on railroad
property other than the “railway,” such as, for example, a path beneath elevated tracks,
see Missouri-Kansas-Texas Ry. Co. of Tex. v. Cunningham, 273 S.W. 697, 698 (Tex. Civ.
App. 1925), or a nonintersecting path parallel to tracks, see Smith v. Mervis, 348 N.E.2d
463, 464 (Ill. App. Ct. 1976).
                                            4
The parties assert, and we agree, that the applicability of article XV, § 10 in determining

prescriptive rights over a railway presents a question of first impression.

¶6            The provisions of our constitution are mandatory, Ariz. Const. art. II, § 32,

and supersede the common law, A.R.S. § 1-201.            When called upon to interpret a

constitutional provision, we first examine the provision‟s plain language; if that language

is unambiguous, we generally must follow the text as written. Jett v. City of Tucson, 180

Ariz. 115, 119, 882 P.2d 426, 430 (1994). In such cases, “judicial construction is neither

necessary nor proper,” and we will not consider any extrinsic matter supporting a

construction that would vary the provision‟s apparent meaning. Id. Only when the

constitutional language is ambiguous or its plain meaning would lead to an absurd result

may we look behind the bare words of the provision to determine the conditions that gave

rise to it and the effect it was intended to have. Am. Bus Lines, Inc. v. Ariz. Corp.

Comm’n, 129 Ariz. 595, 598, 633 P.2d 404, 407 (1981).

¶7            TMLD contends the term “public highways” as used in article XV, § 10 is

ambiguous because the framers did not intend that this provision “abrogate private

property interests,” and, pointing to article XV as a whole, which primarily relates to the

Arizona Corporation Commission and public service corporations, claims the sole

purpose of § 10 is to subject railroads to regulation by the commission. But the clear

language of § 10 undercuts that interpretation, expressly designating railways as public

highways without any language limiting that designation to regulatory purposes or, for

example, declaring railways to be public highways only “for purposes of this section.”

                                              5
¶8            Moreover, if, as TMLD argues, the purpose of § 10 is merely to subject

railroads to state regulation, the first portion of the first sentence, declaring railways to be

public highways, would be unnecessary and superfluous because the second portion of

the sentence, “all railroads are declared to be common carriers and subject to control by

law,” accomplishes that result standing alone. Ariz. Const. art. XV, § 10; see City of

Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 33, 181 P.3d 219, 230 (App.

2008) (appellate court will avoid interpretation rendering “„any language superfluous or

redundant‟”), quoting Thomas & King, Inc. v. City of Phoenix, 208 Ariz. 203, ¶ 9, 92

P.3d 429, 432 (App. 2004). And, in the absence of any ambiguity, we do not look to the

other sections of article XV for context. See Ariz. Minority Coal. for Fair Redistricting v.

Ariz. Indep. Redistricting Comm’n, 211 Ariz. 337, ¶ 67, 121 P.3d 843, 862 (App. 2005)

(only when constitutional provision unclear do “we consider its effect, consequences,

context, and spirit”).     However, even reading § 10 in conjunction with surrounding

sections of article XV, we find no provision preventing or qualifying the application of

§ 10 to property rights.

¶9            TMLD also relies on Curtis v. Southern Pacific Co., 39 Ariz. 570, 571-75,

8 P.2d 1078, 1078-80 (1932), in which our supreme court held that the plaintiffs could

acquire a prescriptive easement across a railway if they could prove they had otherwise

met the requirements for adverse possession. See Ariz. Rev. Code § 2051 (1928).3


       3
       Arizona‟s currently applicable adverse possession statute, codified at A.R.S.
§ 12-526, is substantially identical to § 2051.
                                               6
Although we may not disregard controlling supreme court authority, see Green v. Lisa

Frank, Inc., 221 Ariz. 138, ¶ 13, 211 P.3d 16, 23-24 (App. 2009), we do not find Curtis

controlling here. As in Green, the supreme court has not addressed the specific legal

issue presented in this case: the application of article XV, § 10 to a party‟s ability to

acquire a prescriptive easement. While article XV, § 10 existed in substantially similar

form when Curtis was decided,4 the court did not discuss or even acknowledge that

provision, strongly suggesting it never was raised by the parties. See Jones v. Burk, 164

Ariz. 595, 597, 795 P.2d 238, 240 (App. 1990) (failure to raise arguments in appellate

brief waives consideration).

¶10           Moreover, although Curtis is factually similar to this case, more recent

decisions of our supreme court guide our resolution of the constitutional issue at hand. In

Calhoun, the court held that “[t]itle to public highways cannot be acquired by private

parties through adverse possession.” 69 Ariz. at 405, 214 P.2d at 801. And in County of

Pima v. Southern Pacific Co., the court expressly recognized that “[r]ailroads are public

highways,” citing article XV, § 10. 95 Ariz. 41, 44, 386 P.2d 400, 402 (1963). These

holdings thus help lay the foundation for our conclusion that a private party may not




       4
        In 1980, voters approved an amendment to article XV, § 10, which removed the
power of the corporation commission to regulate, inter alia, motor carriers and airlines
and made other non-substantive changes. See Ariz. Sec‟y of State, Publicity Pamphlet at
7-10 (1980). But the amendment did not alter the section‟s applicability to railways or
their designation as public highways, which existed when Curtis was decided. See Ariz.
Const. art. XV, § 10 (1928).
                                            7
acquire a prescriptive easement over a railway, notwithstanding Curtis‟s holding to the

contrary, which did not consider the constitutional imperative at issue here.

¶11              TMLD denies the applicability of Calhoun and its progeny, asserting that in

those cases the land in question was owned by the state, whereas in this case the railway

is owned by Union Pacific. This ostensibly colorable argument fails, however, because

no such distinction is made in article XV, § 10. Instead, its broad language compels a

conclusion that railways, regardless of ownership, are public highways for purposes of

determining prescriptive rights.      We additionally note that other jurisdictions have

interpreted similar constitutional provisions to the same effect. See, e.g., Miss. Export

R.R. Co. v. Rouse, 926 So. 2d 218, ¶¶ 9, 11, 13 (Miss. 2006) (active railroad tracks are

public highways under Mississippi Constitution and therefore immune from prescriptive

easement); A&M Props., Inc., 506 S.E.2d at 634-35 (same result under West Virginia

Constitution).

¶12              TMLD also contends that this straightforward view of the constitutional

provision leads to “absurd results” and offends “the yardstick of common sense.” In

support, TMLD points to a provision in effect at the time our constitution was adopted

requiring “[e]very able-bodied male resident of the territory” to perform two days‟ labor

“on the highways within his district.” See Rev. Stat. of Ariz., Civ. Code § 3964 (1901).

TMLD asserts “the framers could not have intended that by declaring railways to be

public highways, . . . such conscription would apply to those railways” because they were

the private property of the railroads. But whether railways are highways for the purpose

                                               8
of the conscription statute, and whether such a statute would be constitutional, does not

control whether railways are highways for purposes of prescriptive easements.

Additionally, considering the enormous importance of railroads to our developing state at

that time, and their status, then as now, as public-service corporations, we are not

convinced that requiring residents to perform work on railways in addition to other state

infrastructure necessarily would have been absurd, particularly during the tenure of that

1901 enactment. As noted in a recent historical account, “„The advance of a railroad into

any region [wa]s tantamount to the advance of progress and civilization.‟” William D.

Kalt III, Tucson Was a Railroad Town 15 (2007), quoting Ariz. Daily Star, Jan. 22, 1902;

see also Thomas E. Baker, Why Congress Should Repeal the Federal Employers’

Liability Act of 1908, 29 Harv. J. on Legis. 79, 81 (1992) (historic importance of railroad

as institution of American expansion well known).

¶13           Rather than being viewed as absurd, a plain-meaning interpretation that

treats railways as public highways for purposes of determining prescriptive rights is

supported by public-policy considerations relating to property held for public use. For

example, in Cracchiolo, 6 Ariz. App. at 600, 435 P.2d at 729, this court recognized the

paramount importance of public use, explaining that generally “no easement can be

acquired in property of the State, particularly such property as is held for public use; at

least there can be no such right of user by an individual as will interfere with public rights

in the property.” And, as our supreme court recognized in County of Pima, 95 Ariz. at

44, 386 P.2d at 402, because railways are public highways, they “are subject to legislative

                                              9
supervision, even though the interests of their shareholders are private property.”5

Pursuant to such supervision, railroads must serve the public, and their operators have a

legal duty to accommodate virtually all shippers and receivers of freight.             A.R.S.

§ 40-326. Accordingly, we agree with Union Pacific that the railway‟s constitutional

designation as a public highway is the primary consideration, even though it is privately

owned. See A&M Props., Inc., 506 S.E.2d at 634-35; cf. Restatement (Third) of Property

(Servitudes) § 2.17 cmt. e, at 271 (“Government-owned land that is held for sale to

private parties, rather than held for public uses, may be subject to the acquisition of

prescriptive rights, so long as the acquisition does not frustrate the public-policy interests

spelled out in this Comment.”). And, as further noted by the Restatement, “[t]he public

interest in preserving . . . lands devoted to public uses outweighs the claims of

prescriptive users.” Restatement § 2.17 cmt. e; see also Tierra Ranchos Homeowners

Ass’n, 216 Ariz. 195, ¶¶ 24-25, 165 P.3d at 179 (Arizona courts look to Restatement for

guidance in absence of conflicting authority).

¶14           Finally, contrary to TMLD‟s assertions, the legal conclusion that railways

are not subject to prescriptive easements does not necessarily mean they are highways

under any and all conceivable scenarios.         Thus, applying the plain meaning of the

constitutional provision does not run afoul of “common sense” as claimed by TMLD.


       5
        Because railroads are common carriers, our constitution deems them “public
service corporations,” subordinating their private interests to the interests of the public to
a greater degree than experienced by other, non-public service corporations. Ariz. Const.
art. XV, § 2.
                                             10
                                       Conclusion

¶15           Because the express language of article XV, § 10 is unambiguous and does

not lead to an absurd result, a private party may not obtain a prescriptive easement over a

railway in Arizona.     Accordingly, the trial court‟s grant of summary judgment is

affirmed.




                                             /s/ Philip G. Espinosa
                                             PHILIP G. ESPINOSA, Judge

CONCURRING:

/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge




/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge




                                            11
