BY LINDA BENTLEY | MAY 20, 2015
Court rules in Freeman case
Talamante stated any order relating to plaintiffs’ request for an injunction would most likely not serve to end this litigation
CAVE CREEK – After taking a number of items under advisement, Maricopa Superior Court Judge David Talamante ruled on Monday in the case brought by Gerald and Janice Freeman, who sued the town, neighboring property owner Cahava Springs Corp./Morningstar Road Properties, Inc. and their neighbors Don and Shari Jo Sorchych, in an effort to prevent any trails from being developed near their property or roadway easement.
Following a bench trial in December, Talamante took the matter under advisement.
However, in the interim, the Freemans filed a motion for sanctions and fees against the town and its counsel.
During an April 16 telephonic status conference, Talamante said he would not issue a ruling on the matter taken under advisement until after the resolution of plaintiffs’ motion and set a telephonic hearing for April 28.
Talamante began that telephonic conference by saying the court was inclined to find the Freemans’ motion to be not procedurally appropriate and appeared to be supplemental to their closing argument.
Following oral arguments, Talamante found that to be the case and ordered the motion for sanctions and fees stricken.
With regard to the matters taken under advisement after conclusion of the bench trial on Dec. 19, 2014, Talamante addressed the three counts in the complaint, the first of which was an application for declaratory judgment, alleging defendants have denied the Freemans the “right to exclusive use of their driveway which is located upon the exclusive easement.”
He stated all of the parties agreed that the issue is whether the proposed building of a trail, which all defendants favored, would unreasonably interfere with plaintiffs’ easement.
Because plaintiffs were not claiming exclusive use and defendants did not deny they were prohibited from unreasonably interfering with plaintiffs’ use of the easement, Talamante said the factual and legal issues, as presented by the parties, did not require a declaratory judgment and declined to enter any orders relating to count one.
Talamante said count three, the allegation relating to “private nuisance,” was not yet ripe for determination by the court.
During the trial, Talamante stated more than once any order relating to plaintiffs’ request for an injunction would most likely not serve to end this litigation and there would be, in all likelihood, further disputes regarding compliance with any injunctive relief issued by the court, if the court were to issue such relief, relating to the use of the trail and the rights, duties and obligations of the parties as owners of adjoining property.
Talamante dismissed the allegations relating to nuisance without prejudice.
He said the central issue related to the Freemans’ request for injunctive relief in count two to the extent they were asking for a permanent injunction against the town for constructing a trail or against co-defendants for agreeing to it or cooperating with the construction of the trail.
Talamante denied that request as well as the Freemans’ request for a permanent injunction against the town that would prevent the building of any trail that may run parallel or over plaintiffs’ easement.
Talamante also denied the Freemans’ request for an injunction against Morningstar, Cahava Springs or the Sorchychs.
He did say, however, the Freemans established that if the trail is built without meeting certain minimum requirements it will no doubt lead to an unreasonable interference with the use of his roadway over the easement granted to him.
“For example,” he wrote, “if the trail to be built does not comply with the design guidelines … there must be sound engineering reasons for doing so. Also, the non-motorized trail must not exceed the two proposed crossing points over plaintiffs’ easement without revisiting the entire issue of ‘unreasonable interference.’ The town shall be responsible for all maintenance of the trail including the areas where the trail and the roadway easement intersect. Further, plaintiff is not required to rely on vague promises of maintenance when needed but is entitled to a planned schedule of maintenance to be undertaken by the town at regular intervals at the town’s sole cost. Signage is to be placed along any trail built to clearly designate it including the easement crossings with no trespassing signs.”
Although Talamante said the Freemans’ argument that the town simply wants trail users to use their roadway easement was not supported by the record, he said based on the “human factors” component, plaintiffs raised a reasonable concern that the user will end up on his roadway if the trail is not constructed to meet the needs and expectation of the trail users.
He wrote, “As the court understands it, a ‘primitive trail’ will simply invite users onto plaintiff’s roadway and easement if and when it becomes unusable for the intended equestrian use. An equestrian trail with a minimum of 4 to 6 feet of usable trail is necessary at all points in the trail to avoid plaintiff’s concern.”
Because it became clear from the evidence presented that the primary use of the trail would be equestrian, Talamante stated the trail must be built to accommodate horse riders at all times with no less than 4 to 6 feet of usable trail space adequately maintained by the town.
Otherwise, if there are points in the trail suitable only for walking or hiking, Talamante said it was foreseeable that horse riders would simply opt to use the plaintiffs’ roadway.
Talamante ordered a permanent injunction against the town with those minimum requirements.
While stating the court cannot substitute its judgment for that of appropriate engineers, trail designers and contractors, Talamante said there must be appropriate drainage and grading to minimize maintenance and adverse impact on plaintiffs’ roadway with retaining walls used whenever necessary to maintain the trail to provide for equestrian use at all times.
In closing, Talamante stated he was not inclined to issue attorneys’ fees in this matter and directed the parties to file any requests for taxable costs and fees by June 4.
