Opinion
1 CA-CV 12-0250
03-07-2013
DAIN LIVINGSTON, a single man, Plaintiff/Appellant, v. SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT & POWER DISTRICT, an agricultural improvement district organized and existing under the laws of the State of Arizona, Defendant/Appellee.
Carmichael & Powell, P.C. By David J. Sandoval Attorneys for Plaintiff/Appellant Jennings, Strouss & Salmon, P.L.C. By Eric D. Gere Attorneys for Defendant/Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2011-050369; CV2011-055410
The Honorable Linda H. Miles, Judge
AFFIRMED
Carmichael & Powell, P.C.
By David J. Sandoval
Attorneys for Plaintiff/Appellant
Phoenix Jennings, Strouss & Salmon, P.L.C.
By Eric D. Gere
Attorneys for Defendant/Appellee
Phoenix NORRIS, Judge ¶1 Under Arizona law, a railroad is liable for livestock injured or killed by a locomotive or car on its line unless the line was fenced at the place of the accident as provided by law or the owner "immediately contributed" to the accident. See generally Ariz. Rev. Stat. ("A.R.S.") 3-1701 to -1704 (2002); Ariz. E. R.R. Co. v. Matthews, 28 Ariz. 443, 444-45, 237 P. 384, 384 (1925); Payne v. Clifford, 24 Ariz. 489, 497, 211 P. 566, 569 (1922). Although state law does not expressly require a railroad to construct a fence along its lines, such an obligation is implied by the liability to pay damages in the event livestock is killed in an unfenced area. Payne, 24 Ariz. at 497, 211 P. at 569. ¶2 Relying on the statutes referenced above, Appellant Dain Livingston sued Appellee Salt River Agricultural Improvement and Power District ("SRP"). Livingston alleged locomotives running on an SRP line had killed seven cows and two calves he owned. Because the line -- located in a right of way granted to SRP on property Livingston was leasing from a third party -- was unfenced, Livingston asserted SRP was statutorily liable for the death of his cattle. ¶3 The superior court granted summary judgment to SRP. It agreed with SRP that Livingston could not pursue his claims because prior owners of the property had agreed to be responsible for fencing the right of way. ¶4 On appeal, the dispositive issue, as it was in the superior court, is whether the prior owners -- Livingston's predecessors in interest -- agreed in a recorded easement to be responsible for fencing the right of way. Exercising de novo review, Powell v. Washburn, 211 Ariz. 553, 555-56, ¶ 8, 556-57, ¶ 13, 125 P.3d 373, 375-76 (2006) (interpretation of the easement subject to de novo review), we agree with the superior court that in granting the easement, Livingston's predecessors had agreed to be responsible for fencing the right of way. ¶5 The easement stated: "[i]t being understood that included in the consideration herein is payment to the Grantor, his successors and assigns for fencing the exterior boundaries of the railroad right of way at such time as the Grantor, his successors or assigns choose to fence said railroad right of way." This language is clear and unambiguous. See Mining Inv. Grp., LLC v. Roberts, 217 Ariz. 635, 639, ¶ 16, 177 P.3d 1207, 1211 (App. 2008). On its face, it states Livingston's predecessors received compensation in exchange "for fencing the exterior boundaries" of the right of way. ¶6 Accordingly, we disagree with Livingston's argument the easement language was not specific enough to give him notice that his predecessors had agreed to become responsible for fencing because it merely permitted them to erect a fence and failed to specify when fencing should be constructed, lacked maintenance provisions, and did not refer to the railroad statutes, livestock, injuries, or liability. Although it is arguable whether Livingston raised this argument in the superior court, even if he did, we would reject it given the clarity of the easement language. ¶7 Finally, in his briefing on appeal, Livingston relies on factual allegations not in the record to argue that, despite the easement language, issues of fact existed as to whether his predecessors had agreed to forego the right to seek compensation for cattle injured or killed by trains along unfenced portions of the right of way. These factual allegations are not properly before us as Livingston did not present them to the superior court in opposing SRP's summary judgment motion. See Flood Control Dist. of Maricopa Cnty v. Conlin, 148 Ariz. 66, 68, 712 P.2d 979, 981 (App. 1985). ¶8 Therefore, for the foregoing reasons, we affirm the superior court's judgment in favor of SRP. As the prevailing party on appeal, we award SRP its costs on appeal, subject to its compliance with Arizona Rule of Civil Appellate Procedure 21. A.R.S. § 12-341 (2003).
The issue before us is narrow. Livingston did not argue SRP was negligent in any other way, nor did he argue the easement did not run with the land and thus, did not bind him. See Nickerson v. Green Valley Recreation, Inc. , 228 Ariz. 309, 315, ¶ 11, 265 P.3d 1108, 1114 (App. 2011) (prerequisites to create covenant running with the land). Further, we note the statutes and cases relied on by Livingston, as well as by SRP, concern railroads. See A.R.S. § 3-1701(E) (railroad defined as including "any person, firm or corporation operating a railroad"). The record reflects SRP owned the line, but was not operating a railroad; nevertheless, SRP has not asserted the railroad statutes are inapplicable to it.
In his reply brief, Livingston asserts he raised this argument at oral argument on SRP's motion for summary judgment. He did not, however, include the transcript of the argument in the record on appeal.
Other jurisdictions have recognized a railroad may avoid liability under statutes similar to the statutes at issue here by entering into a contractual agreement with a landowner in which the landowner agrees to assume responsibility for fencing. See Lynch v. Baltimore & O.S.W.R. Co. , 88 N.E. 1034 (Ill. 1909) (railroad not liable for livestock injuries when predecessor railroad paid predecessor landowner to construct and maintain fence); Atkinson v. Thompson, 320 P.2d 850 (Kan. 1958) (railroad not liable for livestock death in unfenced, open private crossing when landowner and predecessor railroad contracted for railroad to maintain unfenced, open crossing instead of fence; statute requiring railroad to fence line may be waived by landowner in contract, relieving railroad of liability); Home Constr. Co. v. Church, 14 Ky. L. Rptr. 807 (Ky. Super. 1893) (railroad not liable for livestock death when predecessor landowner and railroad contracted for landowner to construct and maintain fence); Ells v. Pac. R.R., 48 Mo. 231 (Mo. 1871) (court should have instructed jury if railroad and landowner contracted for landowner to fence, and landowner's failure to fence caused death, landowner should not recover). These courts have recognized if a landowner agrees to construct a fence and receives consideration for that agreement, the landowner may not sue the railroad for livestock losses when the landowner fails to construct the fence.
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______________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ______________________
ANDREW W. GOULD, Judge
______________________
RANDALL M. HOWE, Judge