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On May 7, 2019, in a 21-page published opinion, the Arizona Court of Appeals set forth new law on what constitutes “bad faith, oppression, or abuse of power” in the selection of condemned land by a condemnor in a private condemnation case brought under A.R.S. section 12-1202.  The case originated in Maricopa County Superior Court where Benjamin Gottlieb represented the Plaintiffs who sought to quiet title to their property in Cave Creek.  The Plaintiffs’ neighbor filed a counterclaim and sought an imposing easement across the Plaintiffs’ property and argued to the superior court judge that he was entitled to an implied easement across the Plaintiffs’ land and could choose the easement of his choice, to avoid being landlocked.  Alternatively, the neighbor requested from the superior court judge an order entitling him to purchase an easement from Plaintiffs under Arizona’s private condemnation statute, A.R.S. section 12-1202.

After a 2 day bench trial which concluded on July 22, 2016, the superior court judge found that the neighbor was not entitled to an implied easement, but was entitled to his chosen easement under the private condemnation statute, provided he pay just compensation for the selected easement.  The superior court judge found that the neighbor prevailed in the lawsuit due to invoking his remedy under the private condemnation statute, and did not award either party their attorneys’ fees and costs.

On May 7, 2019, the Court of Appeals made several holdings, but most notably reversed the superior court’s ruling that the neighbor prevailed in the lawsuit, and instead found that Gottlieb’s clients prevailed in the lawsuit since the neighbor failed to prove he had an interest in Plaintiffs’ land.  Further, the Court remanded the matter back to the superior court for the judge to determine the award of attorneys’ fees to Gottlieb’s clients under A.R.S. section 12-1103, the quiet title statute, for having prevailed in the quiet title action.

The Court of Appeals also set forth new law and held that absent an agreement, the condemnee may present evidence to the court—including evidence regarding the feasibility, cost, and other relevant details of a specified route—showing that under the circumstances, a more reasonable route exists. If the court determines that the condemnee’s suggested route is more reasonable, the condemnee will have made a sufficient showing of bad faith, oppression, or abuse of power.

The full Court of Appeal’s opinion can be read here:

Oral Argument at the Court of Appeals can be viewed here:


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