By Linda Bentley | February 10, 2016

Morningstar Road Properties sues Freemans over signs

CAVE CREEK – In November, Morningstar Road Properties, Inc., formerly Cahava Springs Corp., filed a complaint in Maricopa County Superior Court against Gerald and Janice Freeman who have refused to remove signs they have posted on Morningstar’s property at the entry to an easement that traverses Morningstar’s properties to access their home at the opposite end of the easement.

One sign reads: “Notice to prospective buyers, property owners using this private easement are liable for monetary contribution and support for maintenance. Arizona Law CV 09-0720. Information Call 480-488-7074.”

The “Arizona Law” cited on the sign is actually an Arizona Court of Appeals case number in which the panel created law where none exists in state statute.

In that case, the court ruled the Sorchychs, Freeman’s neighbors over whose property the easement also traverses, had to pay the Freemans a portion of their expenses to improve the road, despite having neither a road maintenance agreement nor any say in the improvements the Freemans made.

The other sign contains the Freemans’ address with another “Notice” stating it is a “private easement for residents and guests only” and “violators will be prosecuted.”

Mark StappMark Stapp

Recently, Morningstar President Mark Stapp held a community meeting to present its plans for subdividing its parcels.

In its complaint, Morningstar is demanding the signs be removed and claims installation of the signs on its property not only constitutes a trespass but causes a diminution in value of the property, while interfering with Morningstar’s use of its property.

Morningstar has asked the court to declare the installation of the signs a trespass, direct the Freemans to immediately remove the signs or, in the event the Freemans fail to comply with such order, authorize Morningstar to remove the signs at the Freemans’ expense, and permanently enjoin the Freemans from reinstalling any signs on the property.

Last month, the Freemans answered the complaint and filed a counterclaim for declaratory judgment and injunctive relief.

Gerald and Janice Freeman

The Freemans claim the signs they have erected are “within the outer boundaries of their lawfully deeded easement and therefore do not constitute a trespass” and “any signs erected by Freemans are incident to the convenient enjoyment of their lawfully deeded easement and therefore do not constitute a trespass.”

The Freemans also state the signs constitute a “secondary” easement “by necessity or as inherently included within the primary-use rights granted by the lawfully deeded easement.”

The counterclaim goes on to assert the signs have been in place in excess of 10 years and is not a trespass “by virtue of adverse possession.”

However, the Freemans also admit Stapp sent them a letter in November 2007 to inform them Cahava had removed the signs and requested they no longer place signs on its property.

The Freemans stated they responded to Stapp’s letter by indicating they were legally allowed to place the signs on the easement and their reasons for the signs.

The Freemans claimed they replaced the signs and never heard anything more from Stapp or Cahava about the signs until this lawsuit.

According to the Freemans, any holder of an easement is entitled to use the servient estate (the property on which the easement lies) “in a manner that is reasonably necessary for the convenient enjoyment of the servitude, in this instance, specifically, to post signs advising potential buyers of the law regarding contribution to the maintenance of the easement.”

In a different legal dispute pending in Maricopa County Superior Court over the use of another easement in Cave Creek, the court seems to disagree with that theory.

That lawsuit was filed by John Briganti, aka Johnny Ringo, against his neighbors Kurt and Terri Klimek over the use of an easement on the Klimeks’ property, which the Klimeks granted to Briganti after learning Briganti’s horse corral and shed were actually built on their property some time prior to them purchasing it.

The legal dispute and neighbor feud arose when Briganti began construction of a new hay barn on the Klimeks’ property.

In a preliminary ruling in the Briganti case, Maricopa County Superior Court Judge John R. Hannah, Jr. found, after holding an evidentiary hearing, the easement granted to Briganti did not grant him the right to occupy or improve any of the Klimeks’ property and stated Briganti may use the easement “insofar as it is necessary in order for him to use the corral area and shed, not insofar as he claims the right to be able to treat the defendants’ property as his and put other improvements on it.”

Hannah ordered the parties to participate in a mandatory settlement conference no later than May 27, 2016 and set the case for trial on Sept. 6, 2016.

Meanwhile, as the Freemans claim a right by adverse possession to posting signs on Morningstar’s property, they also claim Morningstar has a duty not to “interfere unreasonably” with their “use and enjoyment of the easement.”

According to the recorded easement documents, the easement is for egress and ingress and states the road is to be maintained in the same condition as it was in October 1969.