In each of the following exercises, the assignment is to prepare an office memo. Each assignment contains an assignment memo from the supervising attorney that includes all the available facts of the case. Complete the memo based on these facts. If additional facts are needed, note this in the recommendations section of the memo. When preparing the heading of each assignment, use “Supervising Attorney” in the “To” line, and put your name after the “From.” Following each assignment is a reference to the applicable enacted and case law. In some assignments, the case citation includes a reference only to the regional reporter citation; the state reporter citation
is not included. Use only the citation presented in the assignment. The cases are presented in Appendix A. The first time you cite the opinion, use the full citation format for the citation you are given for the opinion in the assignment.

To: Paralegal
From: Supervising Attorney
Re: Hatch v. Transcontinental Railroad Company; prescriptive easement
Our office represents Alejandro Hatch, farm owners, in an action against the Transcontinental Railroad Company. Mr. Hatch acquired the farmland five years ago. Unbeknownst to him, the prior owner had entered into an easement agreement nine years ago with Transcontinental allowing the company to spray herbicides along the edge of the farm bordered by the railroad tracks for purposes of keeping the tracks and area
around the tracks clear of weeds and “nuisance” plants. The easement allowed spraying up to 15 feet into the farmland from east of the existing tracks. Although the prior owner and the railroad drafted appropriate easement documents, the easement was never properly recorded. In the lawsuit, we have alleged Transcontinental’s activities on the easement land has damaged farmland beyond the easement and caused loss of crops.

Mr. Hatch never saw any activity of chemical spraying by the railroad the first three years he owned the farm. However, he did notice that crops from the railroad track up to 25 feet into the farmland were often stunted and failed to thrive on the edge of the farm where the easement was located (although as noted above he did not know of the easement). Two years ago, Mr. Hatch began to amend the soil in the area of the easement to improve crop growth. His efforts were to no avail. In his efforts to improve growth, he spent more time walking that area of the farm and began to notice a white residue on the crops in April, June, and August. Last year, in June, was the first time Mr. Hatch saw a railroad vehicle going along the track with men walking along side of the vehicle spraying a liquid from
a container in the bed of the vehicle. His crops were subsequently covered in white residue.

Transcontinental has asserted is has a prescriptive easement. Based on the above facts please analyze whether there is a prescriptive easement.

Rule of law: There is no applicable statutory law. Case law requires the party asserting a prescriptive easement to show: (1) that it actually and visibly used the land allegedly subject to the easement for a specific purpose for ten years, (2) that the use began and continued under a claim of right, and (3) that the use was hostile to the plaintiff ’s title. Paxson v. Glovitz, 203 Ariz. 63 (App. 2002).
Case law: A court opinion that applies the elements of a prescriptive easement is: C & G Les Springs Family Home, LLC v. Hinz, 1-CA-CV-2008-0442 (Ariz. Ct. App., Div. 1 2009) (see Appendix A).