Calhoun v. Smith, 1 CA-CV 15-0419

Richard and Christine Shepherd owned a Cave Creek lot with a driveway north of their house; contractors used it during 1994 construction and the Shepherds used it intermittently thereafter.
In 2005 plaintiffs Darren Calhoun and Kristin Kirlin bought the Shepherds’ property, used the same northern driveway to build and access a corral and barn, and used it regularly thereafter.
In March 2014 defendants Barry and Christy Smith bought the adjacent northern lot (where the driveway actually sits) and soon installed a fence blocking vehicle access.
Plaintiffs sued in July 2014 seeking quiet title/prescriptive easement and injunctive relief, invoking tacking to combine Shepherds’ and their use toward the 10-year prescriptive period.
At a one-day bench trial the superior court found the Shepherds’ pre-sale use was only occasional/periodic (a few times a month at most) and did not sufficiently give notice (i.e., was not continuous or sufficiently hostile), so plaintiffs failed to establish the requisite 10 years of open, visible, continuous, and unmolested use.
The court entered judgment for defendants; plaintiffs appealed and the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs established a prescriptive easement or adverse possession by tacking Shepherds’ use to reach 10 years	Tacking is proper; combined use (Shepherds + plaintiffs) met the open, visible, continuous, and unmolested 10-year requirement	Shepherds’ use before sale was occasional/casual and therefore cannot be tacked as continuous adverse use	Held for defendants: Shepherds’ use was not sufficiently continuous; plaintiffs failed to prove 10 years’ adverse use
Whether the Shepherds were required to "fly the flag" (make a distinct hostile assertion) to convert prior permissive use into adverse use	Plaintiffs: "fly the flag" applies only where prior use was permissive and is not necessary here	Defendants: Even if "fly the flag" applies, Shepherds did not assert hostile possession	Court avoided deciding necessity of "fly the flag" because finding of non-continuous use was dispositive; no reversible error in relying on continuous-use failure
Whether plaintiffs were entitled to attorneys’ fees under A.R.S. § 12-1103(B)	Plaintiffs sought fees if they prevailed	Defendants sought appellate sanctions under Ariz. R. Civ. App. P. 25	Both fee/sanctions requests denied; defendants awarded taxable costs on appeal

Ammer v. Arizona Water Co., 169 Ariz. 205 (App. 1991) (doctrine of tacking between successive users for adverse possession/prescriptive easement)
Spaulding v. Pouliot, 218 Ariz. 196 (App. 2008) (requirements for prescriptive easement/adverse possession and presumption of claim of right once open, visible, continuous, and unmolested use is shown)
Herzog v. Boykin, 148 Ariz. 131 (App. 1985) ("fly the flag" as sufficient notice of hostile adverse use where prior permissive use existed)
Gospel Echos Chapel, Inc. v. Wadsworth, 19 Ariz. App. 382 (1973) (occasional or casual use insufficient to convert permissive use into adverse use)
Harambasic v. Owens, 186 Ariz. 159 (App. 1996) (elements for prescriptive easement: actual and visible use for ten years, under a claim of right, hostile to true owner's title)