BY LINDA BENTLEY | DECEMBER 23, 2014
Trial concludes in Freeman v. Cave Creek, et al.
Talamante then ordered counsel be allowed until 5 p.m. on Jan. 12 to submit simultaneous written closing arguments
MESA – The bench trial in the case of Gerald and Janice Freeman v. Town of Cave Creek, Cahava Springs Corp., and Don and Shari Jo Sorchych, to prevent a non-motorized trail being located even in close proximity to the easement the Freemans and Sorchychs use to access their property, was held last week.
At the onset, Maricopa Superior Court Judge David Talamante stated he read the briefs submitted by the parties and didn’t need opening statements.
Talamante stated, “The bottom line issue for this court is not complicated,” and said it was a matter of whether a trail would unreasonably interfere with the Freemans’ use of the easement, which Gerald Freeman referred to as his private driveway.
Attorney Jeff Murray, representing the town, agreed that it seemed like a simple case and said, “Either it does or it doesn’t.”
Talamante said, “I hope we’re not all spinning our wheels here.”
He noted Don Sorchych was present and representing himself and said it was his understanding Sorchych had been dragged into the case unwillingly, since he doesn’t own property where the proposed trail might be located.
Talamante questioned if things changed in six months if any order he might issue would address that.
The Freeman’s Attorney Steven Mahaffy said his clients want to prevent any crossing of the roadway easement or a trail within 25 feet of the roadway easement, which traverses two parcels owned by Cahava Springs Corp.
Murray pointed out the proposed trail and/or crossing is not on the Freemans’ property and the crossing is a legal issue rather than a factual issue, while he questioned the Freemans’ demand for a 25-foot buffer.
Attorney George Winney, representing Cahava Springs, said the roadway crosses the northern and southern boundaries of Cahava property and stated, “What we’re not talking about is what Cahava does in the future.”
Mahaffy said, “What we’re talking about is a trail for public use.”
Gerald Freeman testified it cost him over $8,300 to make repairs to the wash crossing after the last storms and trespassers are constantly damaging the road.
He also claimed when he tried to serve equestrian trespassers with papers, one of the riders swung his mule around into the front of his truck and then accused Freeman of hitting him.
Freeman said the town makes no distinction as to who can use the trails and claimed horses and pedestrians don’t use the trail along Morning Star Road, they use the road.
Freeman stated he has between 1,200 – 1,400 trespassers per year and claimed Sorchych has no authority to grant permission for others to use the easement located on Sorchych’s property.
According to Freeman, there have been at least six different trail route proposals and Associate Planner/Trails Coordinator Bambi Muller’s job is dedicated only to trails.
He testified that even though Muller’s job is dedicated to trails, the town claims the trails are maintained by volunteers.
Freeman said the trespassers are evenly split between horses and vehicles and every day there was at least one.
He stated there were most likely three or four because he doesn’t see them all.
Freeman said the town doesn’t follow its own design guidelines for constructing trails.
He also stated the town’s brown trail marker signs are an invitation to anyone to use them.
Freeman insisted if the town were to construct a trail, users will use his road instead of the trail.
He stated he had two main issues – maintenance costs and the town having no liability.
When it came to how many times per week Freeman and his wife use the road, Freeman doubled up the numbers he provided Murray during his deposition just a few months earlier.
Freeman said those numbers were correct at the time.
Murray pointed out Freeman also claimed during his deposition he has never been unreasonably interfered with as to his use of the easement.
When Freeman stated Interim Town Manager Rodney Glassman told him in July when they all met on the property the trail would be for equestrian use, Murray said, “We were there and he never made such a statement.”
According to Freeman, hikers and bicyclists make no damage and all the damage is caused by horses.
Murray asked Freeman if the damage to the trail is not at one of the two proposed crossings of the roadway easement, why did he care.
Before breaking for lunch Talamante let the court know what he was thinking and said it seemed like the plaintiffs’ position is there shouldn’t be a trail at all and questioned if the court should come up with certain provisions, which he already acknowledged could all change if the proposed trail is changed.
Mark Stapp, who initially was the spokesperson for Cahava Springs when the case was originally filed, told the court the subject parcels had been transferred approximately two weeks earlier to another entity, Morning Star Properties.
When Mahaffy motioned the court to join the new entity, Talamante stated he couldn’t issue any orders against a corporate entity that had not been served with notice of the case.
Talamante allowed the joinder without prejudice.
When asked if it was true Cahava has no intention of constructing a trail on their property, Stapp replied, “We will only do what the town requires us to do.”
Stapp said the intent is to subdivide the property for sale subject to stipulations imposed by the town and they have no intention of voluntarily constructing a trail.
Stapp said they would only participate in the cost of a trail if required by the town and if the town requested an easement for a trail they would consider it.
Talamante stopped Mahaffy, said his questioning of Stapp sounded like a deposition or cross examination of the witness and stated, “I’m not sure where you’re going with this.”
Mahaffy asked Stapp if he recalled former Town Manager Usama Abujbarah asking for a 60-foot easement along Morning Star.
Stapp responed, “No.”
Mahaffy asked how many acres Cahava Springs owned and the various entities that owned them.
Talamante interrupted again and said, “I really don’t know what to do with this testimony.”
Neither Murray nor Winney had questions for Stapp.
Mahaffy called Margaret Crumpton, who lives on Morning Star Road, as a witness.
Crumpton claimed the town constructed a trail on her property without her permission and broke her water line.
She stated the trail wasn’t passable by horse and people use the road instead.
When asked by Murray if she had ever done any investigation to determine if the trail was on her property or on the town’s right-of-way, Crumpton said she had not.
He asked if the trail was not on her private property did she still believe she’d be liable.
Crumpton responded, “I certainly do.”
The trial also brought engineers, a surveyor, a trail construction expert, Muller and Sorchcyh to the stand.
Winney pointed out the dedication of the 25-foot easement asserted by Freeman didn’t pertain to the Freemans’ property and only applied to the southern quadrant of the section, not the northern quadrant where the Freemans’ property is located. It also was dedicated in 1992, a year after the Freemans purchased their property.
He pointed out the Freemans do not have a 25-foot easement but access via a roadway easement in the same condition the road was in as of October 1969.
After hours and days of testimony, Talamante stated, “I don’t see where this makes any significant progress in this case.”
After all sides rested their case, Talamante denied the Freemans’ motion for the court to reconsider its denial of their motion for the court to view the subject property.
Talamante then ordered counsel be allowed until 5 p.m. on Jan. 12 to submit simultaneous written closing arguments, not to exceed five pages, and proposed finding of fact and conclusions of law, not to exceed 15 pages, and said the matter would be deemed under advisement thereafter.
