A Cochise County judge is being called upon to decide a dispute concerning access to three acres of land along an electricity distribution line installed by Sulphur Springs Valley Electric Cooperative (SSVEC) in the 1950s.
On May 4, SSVEC filed a lawsuit against Elquen LLC seeking a formal easement to a narrow strip of land in St. David between the San Pedro River and Apache Powder Road. The land in question is 50 feet wide and about 2,700 feet long, and is the site of a 69-kilovolt electric sub-transmission distribution line installed by SSVEC prior to 1958.
“In order to furnish the public with electricity, and thereby service the public interest, it is necessary for Plaintiff to continue to operate and maintain the line currently located within the Easement Area,” the lawsuit states.
The lawsuit notes SSVEC has utilized a 50-foot easement area along the powerline for decades, but now wants to formalize access to the property. The utility is seeking a declaratory judgment of its prescriptive -or implied- easement rights, which can only be granted if a judge determines there has been uninterrupted use of the property for more than 10 years.
The property in dispute is part of a larger parcel owned since 2008 by Elquen LLC, a St. David business whose members are Carmen Miller and Owen Lonsdale. According to SSVEC’s lawsuit, the utility proposed a right-of-way easement agreement to Elquen in January that has not been executed.
“At the time of Defendant Elquen’s acquisition, the line had been in place for more than 50 years without permission of any of the owners and was plainly visible on the Property,” the lawsuit states. “As such, Plaintiff’s use has been actual, open and notorious, hostile, under a claim of right, and continuous.”
The lawsuit argues that if Judge Laura Cardinal of the Cochise County Superior Court denies easement rights to SSVEC, the utility would accept an order decreeing its right to acquire the desired right-of-way by eminent domain.
Elquen has until late June to file a response to the lawsuit. In the meantime, SSVEC has filed a Notice of Lis Pendens with the county recorder’s office as an advisory that the property is the subject of an ongoing legal dispute.
SSVEC’s lawsuit notes that installation of the line in the 1950s was performed without permission of the then-owner. However, it does not specify whether construction was done under a court order or if state law at the time afforded an exemption for public utility work.
Cochise County is also listed as a defendant in SSVEC’s lawsuit due solely to their responsibility for maintaining real estate records. There is no relief nor sanction requested against the county.