NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT 

PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. 

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

EARL LOUIS WHITMORE and JOHN B. WHITMORE, 

Plaintiffs/Appellants, 

v.

UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, 

Defendant/Appellee. 

No. 1 CA-CV 14-0839 

Appeal from the Superior Court in Maricopa County 

No. CV2012-011581 

The Honorable Mark H. Brain, Judge 

AFFIRMED 

COUNSEL 

Earl L. Whitmore and John B. Whitmore, Phoenix 

Plaintiffs/Appellants 

Beaugureau, Hancock, Stoll & Schwartz, PC, Phoenix 

By Anthony J. Hancock, W. Reed Campbell 

Counsel for Defendant/Appellee
WHITMORE v. UNION PACIFIC 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Andrew W. Gould delivered the decision of the Court, in which 

Presiding Judge Donn Kessler and Judge Patricia K. Norris joined. 

GOULD, Judge: 

¶1 Appellants Earl L. Whitmore and John B. Whitmore, (“the 

Whitmores”), appearing in propria persona, appeal the trial court’s judgment 

granting Appellee Union Pacific Railroad Company (“Union Pacific”) a 

prescriptive easement across a portion of their property to operate railroad 

tracks. The Whitmores also challenge the trial court’s rejection of their 

claims for damages stemming from Union Pacific’s use of the tracks. For 

the reasons set forth below, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶2 The Whitmores appeal from a grant of summary judgment; 

we therefore recite the facts in a light most favorable to them. Wells Fargo 

Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension 

Trust Fund, 201 Ariz. 474, 482, ¶ 13 (2002). The Whitmores raise farm 

animals on land they have owned since 1973 and leased from the prior 

owner from 1960 to 1973. Unbeknownst to them, the prior owner entered 

into an “Easement Agreement” with Union Pacific’s predecessor-in-interest 

in 1960 establishing an easement to build and operate railroad tracks on

part of the land. The Easement Agreement provided that, if the railroad 

did not build tracks within two years, the easement would expire. 

According to the Whitmores, the tracks were not completed until 1975. 

¶3 The Whitmores filed suit against Union Pacific in 2012, 

alleging that Union Pacific’s use of the tracks had damaged their land in 

numerous ways. Union Pacific counterclaimed to quiet title, contending 

that it either held an express easement under the Easement Agreement or 

that it had established a prescriptive easement through its longstanding use 

of the tracks. Union Pacific then moved for summary judgment on the 

Whitmores’ breach of contract claim and its counterclaim, which the trial 

court granted. 

¶4 The Whitmores then filed an amended complaint restating 

the alleged harms they alleged were “a direct result of [Union Pacific] being 
WHITMORE v. UNION PACIFIC 

Decision of the Court 

3

on their property.” Union Pacific moved for a more definite statement 

under Ariz. R. Civ. P. 12(e), and the trial court granted the motion. The 

Whitmores then filed a second amended complaint stating approximate 

dates ranging from the 1970s to 2012 for each alleged harm. Union Pacific 

responded with a second motion for more definite statement, as well as two 

partial motions to dismiss. 

¶5 The trial court granted both partial motions to dismiss, at 

which point the Whitmores withdrew the remainder of their second 

amended complaint. The trial court entered final judgment granting Union 

Pacific an easement and assessing costs and attorneys’ fees against the 

Whitmores. The Whitmores timely appealed. We have jurisdiction 

pursuant to A.R.S. § 12-2101(A)(1). 

DISCUSSION 

I. The Trial Court Properly Granted Summary Judgment on The 

Whitmores’ Breach of Contract Claim and Union Pacific’s Quiet 

Title Claim. 

¶6 The Whitmores challenge the grant of summary judgment to 

Union Pacific on its quiet title claim.1 We review the grant of summary 

judgment de novo to determine whether any genuine issue of material fact 

exists, viewing the evidence and all reasonable inferences in favor of the 

non-moving parties. Russell Piccoli P.L.C. v. O'Donnell, 237 Ariz. 43, 46-47, 

¶ 10 (App. 2015). Summary judgment is appropriate only “if the pleadings, 

deposition, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a matter 

of law.” Ariz. R. Civ. P. 56(c)(1) (2012). 

¶7 In order to establish a prescriptive easement, Union Pacific 

had to show that it actually and visibly used the land allegedly subject to 

the easement for a specific purpose for ten years, that the use began and 

continued under a claim of right, and that the use was hostile to the 

Whitmores’ title. Paxson v. Glovitz, 203 Ariz. 63, 67, ¶ 22 (App. 2002). 

 

1 The Whitmores do not challenge the trial court’s ruling on their 

breach of contract claim, the rulings granting the motions for more definite 

statement, or the rulings granting the partial motions to dismiss. 
WHITMORE v. UNION PACIFIC 

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A. Union Pacific Actually and Visibly Used the Tracks for 

More Than Ten Years Before the Whitmores Filed Suit. 

¶8 The Whitmores first contend that the trial court improperly 

granted summary judgment because the parties do not agree as to when the 

train tracks were built. But the parties agree that the tracks were completed 

by 1975 at the latest. The Whitmores further concede that Union Pacific has 

used and maintained the tracks since they were completed. Union Pacific 

and/or its predecessor thus actually and visibly used the tracks for 

significantly more than ten years before the Whitmores filed suit in 2012. 

B. Union Pacific Used the Tracks Under a Claim of Right. 

¶9 Once a claimant shows open, visible, and continuous use of 

the land for ten years, a presumption arises that the use was under a claim 

of right. Gusheroski v. Lewis, 64 Ariz. 192, 198 (1946); Inch v. McPherson, 176 

Ariz. 132, 136 (App. 1992). The Whitmores try to rebut this presumption by 

contending Union Pacific did not “fly the flag” over the disputed land, 

citing Knapp v. Wise, 122 Ariz. 327 (App. 1979). 

¶10 Knapp does not support the Whitmores’ position. The Knapp

court found that the act of fencing in disputed property was sufficient to 

“fly the flag” and put the owners on notice of an adverse claim. Id. at 329. 

Again, the Whitmores do not dispute that Union Pacific has operated trains 

on the tracks since at least 1975. They had ample notice that Union Pacific 

was using the tracks under a claim of right. 

¶11 The Whitmores also contend Union Pacific admitted that 

genuine issues of material fact existed when it alleged that there was “an 

actual, justiciable controversy ... regarding whether Union Pacific has an 

easement to use the subject property ... .” The Whitmores are incorrect; this 

allegation relates to the trial court’s jurisdiction to grant declaratory relief 

under A.R.S. § 12-1831. See, e.g., Canyon del Rio Investors, L.L.C. v. City of 

Flagstaff, 227 Ariz. 336, 341, ¶ 18 (App. 2011) (declaratory judgments can be 

sought “[w]hen a justiciable controversy exists”). The Whitmores thus did 

not establish any genuine issues of material fact as to whether Union 

Pacific’s use of the tracks was under a claim of right. 

C. Union Pacific’s Use Was “Hostile.”

¶12 Because Union Pacific’s longstanding use of the tracks was 

undisputed, the Whitmores also bore the burden to show that the use was 

not hostile. Spaulding v. Pouliot, 218 Ariz. 196, 201, ¶ 14 (App. 2008) (citing 

Gusheroski, 64 Ariz. at 198). The Whitmores first contend Union Pacific’s
WHITMORE v. UNION PACIFIC 

Decision of the Court 

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use was not hostile because they “did not interfere with the laying of the 

tracks; they did not call the police to try to stop the railroad and they never 

asked the railroad to leave the property.” But the Whitmores also 

acknowledge that they never gave Union Pacific permission to use the 

tracks. The Whitmores’ unwillingness to “call the police” or “interfere with 

the laying of the tracks,” standing alone, does not convert Union Pacific’s 

use into a permissive use. See Lewis v. Pleasant Country, Ltd., 173 Ariz. 186, 

190 (App. 1992) (“In order for a possession to be permissive, the possessor 

must acknowledge that he holds the property in subordination to the 

owner’s title”); see also Inch, 176 Ariz. at 135-36 (finding that placing gravel 

on disputed land and using it as a driveway was sufficient to deem use 

hostile). 

¶13 The Whitmores also contend Union Pacific’s use was not 

hostile because it commenced under the Easement Agreement. Even 

assuming the easement provided for in the Easement Agreement expired 

as the Whitmores contend, Union Pacific’s continued use of the tracks 

under the mistaken belief that it held an express easement would satisfy the 

hostility element. Inch, 176 Ariz. at 135. 

¶14 For these reasons, we affirm the trial court’s order granting 

summary judgment on the Whitmores’ breach of contract claim and Union 

Pacific’s quiet title claim. 

II. The Whitmores Presented No Evidence of “Improper Courtroom 

Behavior.”

¶15 The Whitmores allege that the trial judge improperly 

“encouraged the railroad to file a motion for summary judgment” during a 

status conference. We have reviewed the transcript excerpt provided and 

find no improprieties. 

¶16 The Whitmores also argue that the trial court should not have 

granted summary judgment because the motion “was set on a court date 

and ruled on by the judge when the Whitmores were not there to defend 

their position ... .” Appellants offer no evidence to show why their failure 

to attend the scheduled hearing should be excused or that their attendance 

would have changed the trial court’s decision. See Ariz. R. Civ. P. 5.1(b) 

(stating that attorneys “shall be responsible for keeping advised of ... any 

assignments for hearing or argument”); Kelly v. NationsBanc Mortg. Corp., 

199 Ariz. 284, 287, ¶ 16 (App. 2000) (“[A] party who conducts a case without 

an attorney ... is held to the same standards expected of a lawyer.”).
WHITMORE v. UNION PACIFIC 

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III. The Whitmores Did Not Oppose the Motion to Dismiss Their 

“Continuing Harm” Claims Below.

¶17 Finally, the Whitmores contend some of the damages claims 

in their second amended complaint were not barred by the applicable 

statutes of limitations because they were “continuing” in nature. They 

point specifically to paragraphs 11(d), (f) and (h) of their second amended 

complaint, which the trial court dismissed on Union Pacific’s motion. 

However, the Whitmores did not oppose Union Pacific’s motion to dismiss 

below, and then after the motion was granted withdrew the remaining 

allegations in their second amended complaint. Under these circumstances, 

the Whitmores cannot oppose the dismissal of these damage claims for the 

first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 

13 (App. 2000). 

CONCLUSION 

¶18 We affirm the trial court’s rulings as set forth above. We grant 

Union Pacific its costs on appeal upon compliance with ARCAP 21.