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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DARREN CALHOUN and KRISTIN KIRLIN, 

Plaintiffs/Appellants,

v.

BARRY SMITH and CHRISTY SMITH, husband and wife; THE 

STARDUST LIVING TRUST DATED MARCH 13, 2008, 

Defendants/Appellees.

No. 1 CA-CV 15-0419

Appeal from the Superior Court in Maricopa County

No. CV2014-009505

The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

Tiffany & Bosco, P.A., Phoenix

By Lance R. Broberg, Timothy C. Bode

Counsel for Plaintiffs/Appellants

Nussbaum Gillis & Dinner, P.C., Scottsdale

By David A. McCarville, Jody L. Buzicky

Counsel for Defendants/Appellees
CALHOUN et al. v. SMITH et al.

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2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Patricia K. Norris and Judge Margaret H. Downie joined.

T H U M M A, Judge:

¶1 Plaintiffs Darren Calhoun and Kristin Kirlin appeal from a 

judgment, entered after a bench trial, in favor of defendants Barry and 

Christy Smith and the Stardust Living Trust Dated March 13, 2008 on 

plaintiffs’ quiet title and injunctive relief claims. Because plaintiffs have 

shown no error, the judgment is affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 In the early 1990s, non-parties Richard and Christine

Shepherd purchased unimproved real estate in Cave Creek, Arizona. In 

1994, the Shepherds built a house on the property. The house spans a 

natural wash, with a hallway acting as a bridge over the wash, connecting 

the front portion of the house on the east to the rear portion of the house on 

the west. The terrain did not allow easy access to the rear portion of the 

house from the south, so during construction, contractors used a preexisting driveway to the north of the house to gain such access. After the 

house was completed, the Shepherds continued to use the driveway to the 

north of the house from time to time, largely to access composting bins and 

refuse containers stored on the property. 

¶3 In 2005, the Shepherds sold the property to plaintiffs, who 

planned to build a corral and horse barn on the property. Believing the 

driveway to the north of the house to be part of the property they 

purchased, plaintiffs used the driveway to build the corral and barn. 

Plaintiffs then used the driveway to the north of the house to access the 

corral and barn, haul hay and maintain that portion of the property. 

 

1 This court views the evidence in the light most favorable to sustaining the 

superior court’s findings. Federoff v. Pioneer Title & Trust Co., 166 Ariz. 383, 

388 (1990).
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¶4 In March 2014, defendants purchased the vacant lot to the 

north of plaintiffs’ house. Defendants learned the driveway was on their 

property and, almost immediately, installed a chain link fence across the 

driveway. This fence made it difficult for plaintiffs to have vehicle access to 

the corral and barn. 

¶5 In July 2014, plaintiffs filed this action seeking quiet title to 

the driveway and related injunctive relief. Although asserting a claim of 

prescription requiring at least 10 years of use, plaintiffs had not owned or 

used the driveway for 10 years. Accordingly, plaintiffs invoked the doctrine 

of tacking, which implicates the Shepherds’ use of the property. See Ammer 

v. Arizona Water Co., 169 Ariz. 205, 210 (App. 1991). After discovery and 

motion practice, the superior court held a one-day bench trial in December 

2014. 

¶6 Plaintiffs, defendants and Richard Shepherd testified at trial. 

Shepherd testified the driveway existed before his contractors started using 

it to access the rear portion of the property. Shepherd testified he did not 

improve or maintain the driveway and did not take other action putting the 

true owner on notice that the Shepherds were adversely claiming the

driveway. Shepherd never sought or received permission to use the 

driveway from the true owner, but while the Shepherds owned the 

property, “it was used periodically.” Shepherd testified they did not 

attempt to hide this use of the driveway and that their use would have been 

“noticeable to the title holder.” Shepherd added, however, that he only met 

the adjacent property owner once and did not tell the owner that he was 

using the driveway or was claiming it. 

¶7 Darren Calhoun testified that after purchasing the property in 

2005, plaintiffs used the driveway daily each year from October to May, and 

up to five times a week the rest of the year. Calhoun testified plaintiffs never 

received permission to use the driveway from the true owner. He added 

that plaintiffs kept the driveway clear of debris and in a usable state, but 

did not do any work to extend or improve the driveway.

¶8 After receiving evidence and hearing argument, the superior 

court ruled in favor of defendants, focusing on the Shepherds’ use before 

plaintiffs owned the property. The court noted that, once plaintiffs “show 

that their use during the ten years was ‘open, visible, continuous, and 

unmolested,’ Arizona law presumes that the use was under a claim of right 

and not permissive. Spaulding v. Pouliot, 218 Ariz. 196, 201 (App. 2008).” As 

briefed by the parties on appeal, the court made two particularly significant 

findings. Citing Herzog v. Boykin, 148 Ariz. 131 (App. 1985), the court first 
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found “that ‘the Shepherds’ use of the driveway did not ‘fly the flag,’” over 

the driveway in a sufficiently hostile and adverse manner, thereby “‘telling 

the owner the land is held under an adverse claim.’” Citing Gospel Echos 

Chapel, Inc. v. Wadsworth, 19 Ariz. App. 382 (1973), the court next found 

the Shepherds used the driveway (1) twice to 

access the side and back yards in connection with 

construction on their home and (2) “occasionally” 

or “periodically,” particularly to access 

composting bins and refuse containers stored on 

their own property. These occasional or periodic 

acts did not give sufficient notice to the true owner 

that the driveway was being held adversely.

Citing Spaulding, and based on these findings regarding the Shepherds’ use 

of the property before plaintiffs owned the property, the court found 

plaintiffs “have not shown ‘open, visible, continuous, and unmolested’ use 

of the driveway for ten years.”

¶9 A resulting partial final judgment repeated the finding that 

plaintiffs “have not shown ‘open, visible, continuous, and unmolested’ use 

of the [d]riveway for ten years to support their claims” and awarded 

defendants’ taxable costs. See Ariz. R. Civ. P. 54(b) (2016).

2 This court has 

jurisdiction over plaintiffs’ timely appeal pursuant to the Arizona 

Constitution, Article 6, Section 9, and Arizona Revised Statutes (A.R.S.) § 

12-2101(A)(1) and -120.21(A)(1).

DISCUSSION

¶10 To acquire title by adverse possession, a plaintiff must show 

it had exclusive possession of the property for ten years. See Ammer, 169 

Ariz. at 209. “To obtain a prescriptive easement, a person must establish 

that the land in question has actually and visibly been used for ten years, 

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

hostile to the title of the true owner.” Harambasic v. Owens, 186 Ariz. 159, 

160 (App. 1996) (citing cases). In either case, the claimant must show the use 

of the land was “open, visible, continuous, and unmolested” for at least ten 

years. Gusheroski v. Lewis, 64 Ariz. 192, 198 (1946) (citation omitted); accord 

England v. Ally Ong Hong, 105 Ariz. 65, 72 (1969); see also Spaulding, 218 Ariz. 

at 203 ¶ 24 (“Although the requirements for establishing a prescriptive 

easement and title by adverse possession are not identical, we generally 

 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
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apply their principles interchangeably.”) (citing cases). Where such use for 

such duration is established, “the use will be presumed to be under a claim 

of right, and not by license of the owner.” Harambasic, 186 Ariz. at 160–61.

Where, as here, there is privity of estate between successive users, “[t]he 

doctrine of tacking permits successive segments of use to be combined to 

establish the continuous ten-year period.” Ammer, 169 Ariz. at 209 (citing 

A.R.S. § 12-521(B)).

¶11 A finding of fact will not be disturbed “if there is any evidence 

to support [it].” Inch v. McPherson, 176 Ariz. 132, 135 (App. 1992).

Interpretation of statutes and rules is reviewed de novo, Haag v. Steinle, 227 

Ariz. 212, 214 ¶ 9 (App. 2011), and this court may affirm if the superior court 

was correct for any reason, First Credit Union v. Courtney, 233 Ariz. 105, 107 

¶ 7 (App. 2013).

¶12 Plaintiffs did not use the driveway for ten years and their 

reliance on the doctrine of tacking placed at issue the Shepherds’ use of the 

driveway. As noted above, the superior court found plaintiffs failed to 

show adverse use for two reasons: (1) the Shepherds did not “fly the flag”

over the driveway, meaning the use was not sufficiently hostile and 

adverse; and (2) the Shepherds used the driveway “occasionally” or 

“periodically,” which was not sufficient to show continuous use. Plaintiffs 

argue the superior court erred by finding they were required to “fly the 

flag” and by concluding they had “not shown open, visible, continuous, 

and unmolested use of the driveway for ten years.” 

I. The Superior Court Did Not Err By Finding The Shepherds’ Use 

Of The Driveway Was Insufficient To Establish Continuous Use.

¶13 Plaintiffs argue the Shepherds were not required to “fly the 

flag” over the driveway, because that standard only applies where a person 

seeks to establish adverse use after a period of permissive use. When

applicable, the “fly the flag” standard indicates that more than mere use is 

required; to be “open” and “visible,” use must be sufficiently hostile and 

adverse to put the true owner on notice of the competing use. See Herzog, 

148 Ariz. at 133 (“Sufficient notice of a hostile and adverse use has been 

defined as acts of possession which ‘fly the flag.’”) (citation omitted).

Although case law construing “fly the flag” is sparse, plaintiffs’ argument 

that the requirement applies to adverse claims following permissive use has 

some force. See id. (finding plaintiff was required to “fly the flag” because 

“permissive use of the land . . . could not ripen into a prescriptive use 

without a distinct and positive assertion of a right hostile to the owner”) 
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(citation omitted); Gospel Echos, 19 Ariz. App. at 385 (finding plaintiff’s 

casual use of land insufficient to convert permissive use to adverse use).

¶14 The superior court, however, also found that the Shepherds

used the driveway only “occasionally” or “periodically,” which was not 

sufficient to show the required “continuous” use. Because plaintiffs were 

required to establish all necessary elements, if the superior court correctly 

found that plaintiffs had not shown “continuous” use, this court need not 

decide whether the court properly applied the “fly the flag” requirement in 

addressing “open” and “visible” use. First Credit Union, 233 Ariz. at 107 ¶ 7 

(decision may be affirmed if superior court was correct for any reason).

¶15 At oral argument on appeal, plaintiffs argued that the 

existence of the driveway essentially required the superior court to find use 

sufficient to support their quiet title claim. No legal authority supporting 

this proposition was cited, however, and the court has found none. 

Moreover, such an argument is contrary to case law requiring plaintiffs to 

show, among other things, adverse use of sufficiently continuous nature to 

support their claims. See, e.g., England, 105 Ariz. at 72; Gusheroski, 64 Ariz. 

at 198.

3

¶16 At trial, Richard Shepherd testified the contractors he hired 

used the driveway to build the house for a discrete period of time. He also 

testified that, in the years that followed, he and his family used the 

driveway “occasionally” or “periodically.” When asked to clarify, 

Shepherd testified they used the driveway “a few times a month probably”

and later testified “[m]aybe sometimes we didn’t use it for a month.”

Plaintiffs correctly argue that “continuous” use to establish a prescriptive 

easement need not be daily or constant use. Plaintiffs, however, cite no 

authority for the proposition that use of a driveway a few times a month is 

sufficiently “continuous” to show that the superior court abused its 

discretion in finding to the contrary. Indeed, “[o]ccasional or casual acts do 

not ordinarily give sufficient notice to the true owner that the property is 

being held adversely.” Gospel Echos, 19 Ariz. App. at 385. Moreover, 

Arizona case law makes plain that the “acts which may constitute 

 

3 Although plaintiffs rely on Bunyard v. U.S.D.A., this is an appeal following 

a trial, not like in Bunyard where summary judgment was entered because 

the non-moving party failed to present evidence to dispute the movant’s 

showing. See 301 F. Supp. 2d 1052, 1058 (D. Ariz. 2004) (“Defendant has not 

presented evidence to rebut Plaintiffs’ evidence and, thus, has not shown 

that there is a genuine issue of material fact for purposes of summary 

judgment.”)
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possession are necessarily varied and, of course, depend upon the 

circumstances of the case,” Higginbotham v. Kuehn, 102 Ariz. 37, 38 (1967), 

and the law does not set a “specific time requirement for physical bodily 

presence which must be complied with in order for a claimant to claim the 

continuous possession required,” Kay v. Biggs, 13 Ariz. App. 172, 175 (1970). 

¶17 The superior court considered the trial evidence, including 

the testimony of Richard Shepherd, who owned the property before 

plaintiffs. That court was in the best position to determine if occasional or 

periodic use qualifies as “continuous” in the context of a driveway in that 

particular neighborhood. Because there was reasonable evidence to support 

the finding that the Shepherds’ use was not “continuous,” plaintiffs have 

not shown the superior court erred in making that finding. Therefore, and 

because plaintiffs’ claims turned on the Shepherds’ continuous use of the 

property, plaintiffs have not shown the superior court erred in ruling for 

defendants on that basis, and this court need not address the superior 

court’s “open” and “visible” findings.
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II. The Parties’ Requests For Attorneys’ Fees Are Denied.

¶18 Although plaintiffs request an award of attorneys’ fees and 

costs pursuant to A.R.S. § 12-1103(B), because the judgment is affirmed, that 

request is denied. Although defendants request an award of attorneys’ fees 

as sanctions pursuant to Ariz. R. Civ. App. P. 25, because defendants have 

not shown sanctionable conduct, that request is denied. Defendants are, 

however, awarded their taxable costs upon compliance with Ariz. R. Civ. 

App. P. 21.

Conclusion

¶19 Because plaintiffs have shown no error, the judgment is 

affirmed.