United States District Court, D. Arizona
FREDERICK J. MARTONE, District Judge.
The court has before it defendant's motion for summary judgment (doc. 87), plaintiffs' response (doc. 91), defendant's reply (doc. 96), and plaintiffs' motion for summary judgment (doc. 89), defendant's response (doc. 94), and plaintiffs' reply (doc. 98). We also have before us defendant's motion to strike the affidavits of Geraldine Fix and John Utz (doc. 99), plaintiffs' response (doc. 102), and defendant's reply (doc. 103).
In 1998, plaintiff Geraldine Fix and non-party Elmo D. Murphy, "as co-trustees of the Murphy Family Trust, " purchased a 53-acre lot located at 35507 West Interstate 8, west of Gila Bend, Arizona (the "Fix Property" or the "Property"). DSOF ¶1. The Property contained an empty steel building which Geraldine and her husband, Paul Fix, intended to use for their manufacturing business, All Seasons Energy. Paul Fix asserts that he operated All Seasons Energy from the Property continuously from 1998 until January 2010 when the railroad crossing owned by defendant Union Pacific was closed (the "Crossing"). Plaintiffs contend that once the Crossing was closed, the Property became landlocked.
The Fix Property is bordered by Paloma Irrigation and Drainage District's canal to the south and west, private property to the east, and Union Pacific's railroad tracks to the north. State Route 85, which provides access to Interstate 8, is located 4 miles east of the Fix Property. DSOF ¶ 5. There is a 4.5 mile graded dirt road which runs parallel to the Canal south of the Fix Property connecting to State Route 85. Id . The dirt road runs through several privately owned parcels east of the Fix Property before reaching State Route 85. Id . The neighboring parcels were commonly owned until 1957 when the Fix Property was subdivided and sold. Id., ex. C.
Before January 6, 2010, the Crossing provided plaintiffs with access to Interstate 8. Plaintiffs acknowledge that there was neither a written nor oral agreement with Union Pacific regarding their use of the Crossing. On October 7, 2008, Union Pacific posted a Notice of Crossing Closure, indicating that the site was selected for closure and inviting interested parties to contract Union Pacific. On January 6, 2010, 15 months after the Notice was first posted, and having received no responses from any interested parties, Union Pacific employees removed the wood crossing panels on the track and dug out and removed the earth on the dirt approaches to the Crossing, making it impassable. DSOF ¶ 10. On September 15, 2010, 8 months after the closure, plaintiff Paul Fix sent a letter to Union Pacific requesting that the Crossing be reopened. Plaintiffs filed this action on January 14, 2013, claiming that they have acquired a prescriptive easement over Union Pacific's right of way. Plaintiffs contend that the Crossing has been used by plaintiffs and their predecessors for more than 80 years on a continual basis as the only ingress or egress to the Property, and that the closing of the Crossing has left the Property landlocked.
Plaintiffs present two claims for relief in their Third Amended Complaint (doc. 104). Count 1 asserts a claim for prescriptive easement, and Count 2 a claim for private way of necessity under A.R.S. §§ 12-1201 and 12-1202. Union Pacific filed a counterclaim seeking a declaration that plaintiffs do not have an easement or any other interest in the Crossing.
Union Pacific first contends that it is entitled to summary judgment because plaintiffs lack standing. Plaintiffs in this case are named "Paul and Geraldine Fix dba All Seasons Energy and Geraldine Fix Trust aka Murphy Family Trust dated March 14, 1985, Geraldine Fix, Trustee." Third Amended Compl. Nevertheless, Union Pacific argues that there is no evidence showing that any named plaintiff is the owner of the Property and therefore all of plaintiffs' claims must be dismissed for lack of standing.
We agree with defendant that Paul and Geraldine Fix dba All Seasons Energy do not own the Property and therefore do not have standing to assert the claims in this case. A tenant cannot assert a claim for a prescriptive easement. "It is the landlord, the holder of fee title, who must assert any prescriptive rights that accrue as a result of the tenant's adverse use." Ammer v. Arizona Water Co. , 169 Ariz. 205, 210, 818 P.2d 190, 195 (Ct. App. 1991). Only the owner of the fee title, the Murphy Family Trust, and Geraldine Fix as trustee, have standing to bring this action.
In support of her standing, Geraldine Fix submitted an affidavit stating that she is the trustee of the Murphy Family Trust, and that the Geraldine Fix Trust is also known as the Murphy Family Trust. Union Pacific moves to strike the affidavit,  arguing that its contents were not properly disclosed (doc. 99).
We deny Union Pacific's motion to strike (doc. 99). "An objection to (and any argument regarding) the admissibility of evidence offered in support of or opposition to a motion must be presented in the objecting party's responsive or reply memorandum and not in a separate motion to strike or other separate filing." LRCiv 7.2(m)(2). Union Pacific's separate motion to strike violates LRCiv 7.2(m)(2) and it is therefore denied (doc. 99). The Fix affidavit is properly considered in response to Union Pacific's standing challenge. Under Rule 21, Fed. R. Civ. P., we may add or drop a party at any time upon just terms. Misjoinder is not a ground for dismissing an action. The Third Amended Complaint and the Fix affidavit adequately demonstrate that Geraldine Fix, as trustee of the Murphy Family Trust, has standing to assert the claims presented in this case.
III. Prescriptive Easement
The existence of a prescriptive easement is determined under Arizona law. To acquire a prescriptive easement, a person must establish that (1) the land in question has actually and visibly been used for ten years, (2) that the use began and continued under a claim of right, and (3) the use was hostile to the title of the true owner of the land. Paxon v. Glovitz , 203 Ariz. 63, 50 P.3d 420, 424 (Ct. App. 2002). "If the use is permissive, it ...