## Facts

- Neighboring residential parcels shared a paved driveway running roughly east–west along their common boundary, providing access from the parcels to 64th Street.
- In 1979, then-owners orally agreed to create a permanent 20-foot-wide easement centered on the boundary line (10 feet on each side) and paved the strip as a driveway, intending it to be permanent.
- No written easement was recorded and no written grant was produced.
- The driveway was used openly and continuously for decades by successive owners and by members of the public as an access route.
- Paxson purchased the southern-eastern parcel in 1995; Glovitz purchased the northern parcel in 1998. Both were told at purchase that the public had a right to use the driveway.
- In 2000, Glovitz began building a fence that would block use of the driveway across his land, prompting Paxson to sue to establish a prescriptive easement over the portion on Glovitz’s property.
- The trial court granted Glovitz summary judgment, ruling the use was permissive and awarding attorneys’ fees against Paxson and her counsel, jointly and severally, on the ground the claim lacked a reasonable basis.

## Issues

1. Whether the undisputed facts established a prescriptive easement over the driveway as a matter of law.
2. Whether the long-term use was adverse rather than permissive, given the 1979 oral “easement” understanding and lack of a written, recorded grant.
3. Whether attorneys’ fees could be assessed against Paxson and against her attorney personally based on a finding the action was groundless.

## Decision

- The court of appeals reversed summary judgment for Glovitz and held a prescriptive easement was established as a matter of law.
- The court held the trial court erred in characterizing the use as permissive.
- The court reversed the attorneys’ fees award against Paxson and her attorney and remanded for further proceedings.

## Legal Principles

- A prescriptive easement in Arizona requires open, notorious, continuous, and adverse use for the statutory period; where material facts are undisputed, entitlement may be decided as a matter of law.
- An attempted but unenforceable oral grant of a permanent easement (barred by the Statute of Frauds) does not automatically render use permissive; it can initiate use under a claim of right sufficient to satisfy adversity for prescription.
- Long-continued, visible use of a defined roadway across another’s land supports a presumption of adverse use, shifting the burden to the servient owner to show true permission.
- Attorneys’ fees or sanctions premised on a claim being groundless are improper where the legal theory is reasonably supportable and the claimant is entitled to relief on the merits.

## Conclusion

The court held that decades of open, continuous use of the paved boundary driveway, originating from an unrecorded attempt to create a permanent easement, ripened into a prescriptive easement as a matter of law; it therefore reversed the judgment for the servient owner, vacated fee sanctions against the plaintiff and her counsel, and remanded.


Paxson v. Glovitz, 50 P.3d 420 (Ariz. Ct. App. 2002)