The Arizona Republic
When is a private road not private?
When the public has been using it for years.
The Arizona Supreme Court drove that decision home last week
when it ruled on a 4-year-old civil case from Pima County.
The case involved a dispute between homeowners in two developments
in southern Arizona. The dirt road between the two sets of
properties belonged to one side, but it was used by residents
The story begins in 1988, when a title company platted out
a potential development near Sahuarita, a small desert town
south of Tucson. It divided the ranch land into 40-acre parcels
and sketched in a public road following a barely drivable
Jeep trail along one end of the property.
A developer came in, bought the land and called it Entrada,
which means "entrance" in Spanish. They bladed the
trail to make a passable - albeit dirt - road and offered
it to Pima County.
The County declined ownership of the new street but gave
it a name to identify it for police and fire departments.
It became Kolb Road.
Later a second development arose on the other side of Kolb
Road. The developer of Sycamore Canyon cut holes in a fence
along the road and traced out paths leading from the new homes
to the street.
Residents of Sycamore Canyon used Kolb Road for the next
several years to get to their homes.
The legal owners of Kolb Road wanted to deny access to outsiders
because of the dust and the hazards the traffic caused. They
also were not thrilled because they said the newcomers did
not want to pay to help maintain the road.
Developers, real estate agents and private landholders do
business based on assumptions about easements. If a road closes
after the contracts are signed and the homeowners moved in,
there could be chaos.
"This is a question of statewide concern," said
attorney Charles Wirken, who represented the people who used
- but did not own - the road. "There are scores of developments
around this state that were created in just the same fashion."
Only way in
In Phoenix, the word "development" conjures images
of tract homes or gated communities. Not here. These homes
were ranchettes, more modest houses and manufactured homes.
Audrey Pleak and her husband, Robin, moved into Sycamore
Canyon in 1998, the year after Kolb Road was improved, and
they built their manufactured home on a road that turned off
"We couldn't get home any other way," Audrey Pleak
said. "It is the only access to our property."
When they moved in, Pleak said, she and her husband - and
the other homeowners in Sycamore Canyon - were assured that
they had legal access along Kolb.
But the traffic never pleased the homeowners in the Entrada
"The dust storm was unbelievable," from the heavy
usage, said Jack Mann, former president of the Entrada Homeowners
He said residents complained about the new roads from the
time they were built. He worried about school buses and other
vehicles that used the road.
"We tried to get the 57 homeowners over there to agree
to a road maintenance contract and move forward," Mann
said. "They said no."
Navigating the courts
With the prospect of being fenced out, the Sycamore Canyon
residents instead went to court.
Pleak v. Entrada reached the Pima County Superior Court in
March 2000. A judge ruled in favor of Entrada, saying that
the road remained private because the county had not accepted
responsibility for it.
The Pleaks and their neighbors appealed the decision up to
the Court of Appeals. Those judges reversed the decision to
limit access to the road.
The Appeals Court judge wrote that the title company had
indeed created a public easement to attract purchasers to
the property, even if the county did not want to take ownership.
If the lower court decision had been upheld, "That could
have invalidated a number of rights of way and could have
implicated a number of title policies," said Michael
Rubin, an attorney who entered an amicus brief on behalf of
the Land Title Association of Arizona. "And it would
have created a nightmare. A whole bunch of people who had
previously just accepted it might have taken the position
that they had the right to deny access."
Roads that had been well traveled could suddenly be declared
The appellate decision came out of the Appeals Court in Tucson,
which meant it only affected southern Arizona. When Entrada
appealed to the state Supreme Court, the justices took the
case to establish law for the state as a whole.
"The Supreme Court took it to tell the world that if
you're going to have a private road, you better keep it private,"
Phoenix attorney Tom Irvine said. "We're not going to
start range wars and let people cut off roads that have become
historic access points. The whole point is, if you want to
have a private road, don't let the public use it for 50 years."