TOBIAS v. DAILEY

No. 1CA-CV 98-0684.

998 P.2d 1091 (2000)

196 Ariz. 418

Bruce D. TOBIAS and Martha E. Pease, husband and wife; and Robert G. Flynn and Carol J. Flynn, husband and wife, Plaintiffs-Appellants, v. Smelker Cree DAILEY and Dona L. Dailey, husband and wife, and Dona L. Dailey, as her sole and separate property; Oak Creek Cliffs Homeowners Association, Inc., an Arizona corporation; The Heirs or Devisees of Charles M. Richards, a widower, deceased; Donald F. Christy and Margaret M. Christy, husband and wife; Weststar Loan Servicing Corporation, an Arizona corporation, as Trustee, successors-in-interest, to CSC Financial Services, Inc., an Arizona corporation, as successor Trustee to Northern Arizona Title Co., an Arizona corporation, as Trustee; The Stockholders and their spouses, if married on the date of revocation or expiration of the charter of Doodlebug Water Co., an Arizona corporation; Karen McCall, aka Karen L. McCall, an unmarried woman; Emery Earl McCall, an unmarried man; Trustee or Debtor-in-Possession, U.S. Bankruptcy Court Case No. 9507801PCT-JMM (Debtor: Emery E. McCall); Karen Lynn McCall, an unmarried woman; Directors Mortgage Loan Corporation, a California corporation; Bank One Arizona, N.A., formerly Valley National Bank of Arizona, a national banking association, as Trustee of the Revocable Living Trust Agreement of Frank L. Fisher dated June 13, 1982; James F. Fisher, a married man, as his sole and separate property; Ann F. Patterson, a widow and Gretchen F. Delaney, a single woman, c/o Mrs. Nancy Shoemaker, Trust Administrator, Valley National Bank of Arizona; John Doe and Jane Doe, as Trustees of the Rawlins Family Trust dated October 5, 1987; Roderick King Rawlins, Jr. and Joan H. Rawlins, husband and wife, the Heirs or Devisees of Roderick K. Rawlins and Sara S. Rawlins, husband and wife, deceased; Bank One Arizona, N.A., formerly Valley National Bank of Arizona, a national banking association; The Heirs or Devisees of any deceased Defendant; The County of Coconino, a body politic, Defendants-Appellees.

Court of Appeals of Arizona, Division 1, Department B.

April 4, 2000.


Attorney(s) appearing for the Case

Sacks Tierney, P.A., Phoenix, by David C. Tierney, Isabel M. Humphrey and Tony S. Cullum, Flagstaff, Attorneys for Appellants.

Teilborg, Sanders & Parks, P.C., by John C. Gemmill, David E. Koval, Phoenix, Attorneys for Appellees.


OPINION

FIDEL, Judge.

¶ 1 Arizona's private condemnation statute permits a private landowner to condemn and take lands of another when the land "is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity." A.R.S. § 12-1202(A).1 A landowner seeking to condemn a private way of necessity...

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