By RT Lynch Justice Reporter
NUTRIOSO — An Apache County couple suffered a $41,000 judgment against them for their opponents’ attorney fees in a lawsuit they themselves brought in Apache Superior Court in 2015, which suit finally concluded on August 31.
Daniel and Cleta Keller of Alpine sued the owners of various lots near the roughly 2.5 acres that they bought, called Lot 2B in an area known as The Nutrioso Split, or The Augur Canyon Estates. According to court records, the Kellers brought the suit after a neighbor erected a locked gate across a dirt road marked as county road “N2275,” which obstructed their access to the acreage where they planned to build their retirement dream house.
The curtain opened on this dispute around 2007, when Daniel, a construction manager, and Cleta, a nurse, spied the perfect location to build their retirement home in Nutrioso. According to deposition transcripts, the property was listed then at $140,000. They hired a realtor who, as it turns out, had actually once owned the property in the early 2000s. The Kellers offered $120,000 which was rejected, but by 2008, the market had changed and they were able to pick it up for $100K in June of that year. They used a realtor different from the first one and paid cash. The couple moved up from the Valley, Daniel continued his work, sometimes out of state. Cleta took a job at a clinic in the county. They dug a well and began planning the house.
What followed was a twisty tale of land originally owned by a cattle company and one of its owners which had changed hands a number of times, subdivided, re-subdivided, easements given and exchanged, a title company that insured a means of access that the Kellers could use to get to the property, a very expensive lawsuit, and a marked county road that, it turns out, isn’t really a county road.
In 2004, their first realtor owned and sold what appears to be lot 13 in the subdivision to a company called Far West Builders which was headed by one Justin Bingham and his brother. That parcel is also described as “Lot 2.” The Bingham brothers (Far West) divided that lot into two parcels, called lots 2A and 2B. The Kellers bought lot 2B.
Throughout the showing and buying process, the Kellers and realtors accessed the property by a dirt road marked by Apache County as county road 2275. They continued to use the road during their many trips to the property over the years, to clear it after the monster Wallow fire near there and to park vehicles. But then a neighbor, during a friendly chat, told them that they shouldn’t build there, because the access road wasn’t a county road at all, that it was actually a relic of a past agreement between Escudillo Cattle Company and one of its owners, Wallace Tanner, to allow each other access to water tanks for cattle in 1982.
When it came time to hire a surveyor, he reported to the Kellers that he couldn’t get to the property because a landowner named David Denali had erected a metal gate across the road. After looking into that, Cleta testified that Denali had given her the gate code and said it was OK for them to use the road. Cleta said she didn’t think she needed anyone’s permission to drive on a county road, and for a reason that is not clear from court records, Denali later revoked the permission, probably changed the code, and the Kellers were locked out.
Enter the title company. Title companies sell title insurance to property owners and will bear the cost of defending them in the event, say, some long lost relative of a previous owner comes forward with a claim of ownership of the property at issue. In this case, the title company the Kellers used had “insured” the county road as a legal access route for the Kellers. That title company, at their expense, proceeded to sue every land owner, three to be exact, through whose property the county road passes, to “quiet title.” That is a suit whereby a court declares what the exact property lines are and what easements are available for various owners to use. They also sued Apache County.
It all seemed like a slam dunk at first, but there were serious obstacles that the Kellers didn’t see coming. After a three day trial to Apache County Judge Pro Tem C. Allan Perkins in October 2019, it was determined that even though there was a county road marker in plain sight, it really isn’t a county road. It’s the ancient easement exchanged in 1982 between the Escudillo Cattle Company and Wallace Tanner and the county had taken none of the various legal steps to make it an official county road. The marker, it was explained at trial, was a device to alert county emergency vehicles that there was access to persons living in various parcels of the Nutrioso Split in cases of emergency, and emergency vehicles are allowed to go anywhere they can in such an event.
County road or not, the Kellers urged that Arizona law disfavors any scheme that makes a property “land-locked” with no ingress and egress. That under a legal theory called “easement by prescription,” the three property owners whose land the road passes through can’t deny them access. The theory is similar to “adverse possession” or as more commonly called, “squatter’s rights,” which basically says that if a property owner has used someone else’s real property for ten years without permission, maintained it, didn’t try to hide the use of it, the hostile party can’t be denied the use of it.
Not so fast, argued the defendants. First, they urged that the Kellers’ property is not landlocked, that there is indeed another way to access it. That there is another access way that was created when the property was subdivided, called a “partition easement,” and that anyone can see that if they looked at the recorded land maps of the Nutrioso Split.
As it turns out defendants are right, but that access way passes through a floodplain and a creek over which a bridge must be built. The defendants noted that the Kellers apparently had not even looked into how much it would cost to build something over the river and through the woods. Secondly, the defendants also argued that in cases of adverse possession, or an easement by prescription, the Kellers’ use of the road was, until recently, permitted by the other land owners, and that fact destroys their claim under that theory.
Finally there was the issue of a lawsuit in 2012 involving the Keller’s neighbors to the north, the Robinsons. The issue in the Robinsons’ case was very similar to, or the same as, the issue in this case — the old cattle company easement, the so-called county road, and the various types of easements the law will allow. The Robinsons lost that 2012 suit. The fact that the current suit was brought so soon after the Robinsons had lost theirs was called “frivolous” by one of the Keller defendants. In fact the same law firm involved in the 2012 suit was on the winning side in this suit as well.
That may be why Judge Perkins awarded attorney’s fees against the Kellers. But whatever the reason, it doesn’t appear that the Kellers were well served in this case. It is unknown if they still intend to develop a path over a creek to their dream home, or try something else, but the legal theories they relied on in this case, simply were not valid.