CITY OF TUCSON, A MUNICIPAL CORPORATION, Defendant/Appellee. No. 2 CA-CV Filed January 5, 2015

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1 IN THE ARIZONA COURT OF APPEALS DIVISION TWO QWEST CORPORATION, DBA CENTURYLINK-QC, A COLORADO CORPORATION, Plaintiff/Appellant, v. CITY OF TUCSON, A MUNICIPAL CORPORATION, Defendant/Appellee. No. 2 CA-CV Filed January 5, 2015 THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County No. C The Honorable Charles V. Harrington, Judge AFFIRMED COUNSEL Fennemore Craig, P.C., Phoenix By Andrew M. Federhar, Patrick Irvine, Theresa Dwyer-Federhar, and Scott McDonald Counsel for Plaintiff/Appellant The Law Offices of Diane M. Miller, PLLC, Phoenix By Diane M. Miller

2 and Damian Fellows, Tucson Counsel for Defendant/Appellee Thomas C. Horne, Arizona Attorney General By David F. Jacobs, Assistant Attorney General, Tucson Counsel for Amicus Curiae Arizona State Land Department MEMORANDUM DECISION Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Vásquez concurred. E C K E R S T R O M, Chief Judge: 1 Plaintiff/appellant Qwest Corporation (Qwest) challenges the grant of summary judgment in favor of defendant/appellee City of Tucson (the City). The trial court concluded that a right-of-way granted by the Arizona State Land Department (the Department) to the City implicitly conveyed certain subsurface rights; hence, the City could require Qwest to move a communication line in the right-of-way at its own expense in order to accommodate the City s road improvements. 1 Finding no error, we affirm. Factual and Procedural Background 2 The parties stipulated the relevant facts below, which we view in the light most favorable to Qwest. See Livingston v. Citizen s Util., Inc., 107 Ariz. 62, 64, 481 P.2d 855, 857 (1971). The Department granted the City a right-of-way in 1956 for the 1 This appeal does not require discussion of the parties predecessors-in-interest who obtained the property rights at issue. For the sake of simplicity, we therefore refer only to Qwest and the City. 2

3 establishment of Houghton Road. The grant designated the City a Permittee, and it provided that the state land covered by [the] right of way will be used for no purpose other than the location, construction, operation, and maintenance of a highway on, over and across these state lands. The instrument prohibited the City from grant[ing] any franchise, permit or other right of way on the state s property. It also contained a clause that reserved the state s right to grant easements and rights of way for public utilities and other purposes over and across state lands described herein, subject to the approval of the Permittee. 3 Qwest acquired an easement from the Department in The instrument allowed Qwest to install an underground communication line over (and thru where applicable) the right-ofway. Qwest installed the line five years later. When the City subsequently informed Qwest that the planned expansion of Houghton Road would require Qwest to relocate the line, it did so at its own expense. 4 Qwest then filed a complaint against the City asserting claims of inverse condemnation, trespass, and interference with contract, as well as a civil rights claim under 42 U.S.C The parties filed cross-motions for summary judgment. The trial court granted the City s motion and entered final judgment pursuant to Rule 54(c), Ariz. R. Civ. P. Qwest s appeal followed. Discussion 5 When a trial court has granted summary judgment, we review de novo whether there are any disputed issues of material fact and whether the court correctly applied the law. City of Bisbee v. Ariz. Water Co., 214 Ariz. 368, 16, 153 P.3d 389, 395 (App. 2007). Generally, a roadway easement includes any subsurface rights incident to use of the surface, such as a foundation for the surface or drainage systems, and substantial rights in the subsurface for purposes of utilities. City of Chandler v. ADOT, 224 Ariz. 400, 13, 231 P.3d 932, 935 (App. 2010). Furthermore, [i]n the absence of an agreement to the contrary, the cost of relocating utility lines 3

4 placed in the right-of-way of public streets must be paid by the owner of the utility when the relocation is necessitated by road maintenance or construction, unless the utility was in place before the public acquisition of the roadway. Id Qwest acknowledges these general principles but argues an exception applies here because the City did not technically acquire the subject property before Qwest installed its line there. Qwest emphasizes that the right-of-way was granted by the Department over state trust lands and expressly reserved the Department s right to grant utility easements over the same property. Qwest further asserts that specific language in the rightof-way allowing passage on, over and across the land should be interpreted as granting the City only rights to the surface of the land, because conveyances affecting government land are construed to prevent the unintended relinquishment of property interests, see Mountain States Tel. & Tel. Co. v. Kennedy, 147 Ariz. 514, 516, 711 P.2d 653, 655 (App. 1985), and any doubts are to be resolved in favor of protecting and preserving trust purposes. Kadish v. Ariz. State Land Dep t, 155 Ariz. 484, 495, 747 P.2d 1183, 1194 (1987). We are not persuaded by these arguments. 2 2Qwest additionally suggests in its opening brief that the City did not pa[y] anything for the 1956 [right-of-way]. However, Qwest did not identify this as an issue presented for review, see Ariz. R. Civ. App. P. 13(a)(4), and its failure to develop this argument sufficiently results in waiver on appeal. See Ariz. R. Civ. App. P. 13(a)(6) (requiring opening brief to contain argument, with reasoning and supporting authorities, for each contention raised); Ritchie v. Krasner, 221 Ariz. 288, 62, 211 P.3d 1272, 1289 (App. 2009) (finding waiver when opening brief fails to present and address significant arguments... set[ting] forth the appellant s position on the issue in question ). We note that Qwest maintains elsewhere in its opening brief that [t]he 1956 [right-of-way] is an enforceable 4

5 7 When construing an instrument creating a servitude, our analysis is independent from that of the trial court. Squaw Peak Cmty. Covenant Church of Phx. v. Anozira Dev., Inc., 149 Ariz. 409, 412, 719 P.2d 295, 298 (App. 1986). [A] servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding creation of the servitude, and to carry out the purpose for which it was created. Smith v. Beesley, 226 Ariz. 313, 15, 247 P.3d 548, 553 (App. 2011), quoting Powell v. Washburn, 211 Ariz. 553, 13, 125 P.3d 373, (2006). Using contract-interpretation principles, Scalia v. Green, 229 Ariz. 100, 13, 271 P.3d 479, 482 (App. 2011), we construe these documents to avoid absurdity. Aztar Corp. v. U.S. Fire Ins. Co., 223 Ariz. 463, 48, 224 P.3d 960, 974 (App. 2010). We also recognize that the meaning of an instrument will sometimes be necessarily implied, even in the case of public land grants. Mountain States, 147 Ariz. at 516, 711 P.2d at The right-of-way conveyance here does not demonstrate that the Department and City intended to create a purely superficial highway a project that would be both novel and absurd, as the trial court correctly noted in its ruling. 3 Although the grant expressly gives the City access on, over and across state trust land, much of the same language appears in the instrument s reservation clause, which retains for the Department the authority to grant easements over and across the same land. In both instances, the grant simply employs the language of A.R.S (A), which allows the Department to grant rights-of-way on and over state lands. 4 contract. We therefore do not further address any questions about the validity of this conveyance. 3 If Houghton Road could be built by only touching the surface, the court observed, it would essentially require the City to spray-paint a road onto the ground. 4This provision is the same, in material part, as the version in effect in

6 9 The use of this statutory language did not display an intention to limit the Department s power to grant future easements to utility operators such as Qwest. Nor did it deprive the City of the usual subsurface rights incidental to the construction and maintenance of a roadway. We need not address Qwest s contention which is also discussed by the Department in its amicus curiae brief about whether the City acquired any rights to the subsurface for [the] purpose of utilities. It is evident that the grant at least gave the City such subsurface rights as were necessary and incidental to the development of the roadway, as the trial court determined. 5 Indeed, Qwest concedes that the City may enter a portion of the subsurface as necessary... to build a road. Thus, the City had the right to enter the subsurface of the right-of-way, require Qwest to move its facilities therein, and demand that Qwest bear the costs of relocation. 10 To the extent Qwest further attempts to distinguish its situation based on the involvement of state trust land, this effort fails. As we recognized in Qwest Corp. v. City of Chandler, the common-law rule of implied duty to pay for relocating property is the general rule in the United States. 222 Ariz. 474, 12, 217 P.3d 424, 428 (App. 2009). When a utility locates its facilities in an existing public right-of-way, it accepts its rights subject to an implied obligation to relocate those facilities at its own expense to accommodate future roadway improvements. Id This obligation is one implied by law, id. n.1, and subject to exercise of the police power. Id. 13. Even when a right is granted to a utility by an entity other than the one requiring relocation, the obligation to 5 We similarly do not address Qwest s argument that the relocation of its facilities was unnecessary, as this fact-intensive argument was improperly raised for the first time in its reply brief, and without adequate development. See Ariz. R. Civ. App. P. 13(c) (reply brief strictly confined to rebuttal of points made in the appellee s answering brief ); Nelson v. Rice, 198 Ariz. 563, n.3, 12 P.3d 238, 242 n.3 (App. 2000) (failure to raise argument in opening brief results in waiver); see also Ritchie v. Krasner, 221 Ariz. 288, 62, 211 P.3d 1272, 1289 (App. 2009). 6

7 bear the costs of relocation remains with the utility when the roadway is improved. See id. 12; see also Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 464 U.S. 30, 35 (1983) ( Under the traditional common law rule, utilities have been required to bear the entire cost of relocating from a public right-ofway whenever requested to do so by state or local authorities. ). 11 Neither Qwest nor the Department has explained why requiring Qwest to pay for relocation under the present circumstances would have any adverse effect on state authority, state trust lands, or state trust funding. We therefore see no relevance in the fact that the state possessed superior authority over the land at issue, as Qwest asserts. In sum, we find nothing in either the right-of-way or Qwest s own easement that would avoid the normal operation of the common-law rule. See Qwest Corp., 222 Ariz. 474, 14, 23, 217 P.3d at 479, 482 (stating implied obligation to pay for relocation applies absent express agreement to contrary). 12 We likewise reject Qwest s argument based on the later transfer of the state trust land. We agree with the City that this transaction is irrelevant to the issues presented. When the land encompassing the right-of-way was eventually sold, and the rightof-way land dedicated to the public, the sale was subject to Qwest s easement, and the easement was listed as an exception[] to the public dedication. Those reservations plainly had the effect of preserving Qwest s easement rights; they had no effect on Qwest s implied obligation to pay the costs of relocation. Accordingly, while the facts concerning this transfer were included only in Qwest s separate statement in support of its summary judgment motion, rather than the parties stipulation, those additional facts provide no basis to disturb the judgment, regardless of whether the trial court considered them. See Glaze v. Marcus, 151 Ariz. 538, 540, 729 P.2d 342, 344 (App. 1986) ( We will affirm the trial court s decision if it is correct for any reason, even if that reason was not considered by the trial court. ). 13 It is an appellant s burden to demonstrate the lower court erred, and upon failure to do so, we have no alternative but to affirm. Guard v. Maricopa County, 14 Ariz. App. 187, , 481 P.2d 873, (1971); accord Regal Homes, Inc. v. CNA Ins., 217 Ariz. 7

8 159, 45, 171 P.3d 610, 621 (App. 2007). Qwest has failed to establish that the trial court erred here in granting summary judgment. We therefore affirm the court s ruling. Disposition 14 For the foregoing reasons, the judgment is affirmed. As they did below, both parties request an award of costs and attorney fees on appeal pursuant to A.R.S and , among other grounds. We deny Qwest s request but grant the City s, subject to its compliance with Rule 21, Ariz. R. Civ. App. P. 8