Burlington Northern & Santa Fe Railway Co. v. Arizona Corp. Commission
In Burlington Northern & Santa Fe Railway Co. v. Arizona Corp. Commission, 198 Ariz. 604, 12 P.3d 1208 (App.2000), pursuant to its statutory authority to determine whether crossings at "public roads or streets" are necessary, A.R.S. 40-337(C), the Arizona Corporation Commission had ordered the plaintiff railway company to maintain a road crossing it had intended to close.
On appeal, the company challenged the commission's jurisdiction, arguing the road was not a public road. Although the road had never been "established by any governmental entity as a public road," Burlington, 198 Ariz. 604, P5, 12 P.3d 1208, P5, the commission argued that a history of public use had prescriptively established it as a public roadway.
Division One of this court rejected the commission's arguments, noting that "Arizona courts have repeatedly interpreted Arizona law as providing that public roads and highways can only be established as provided by statute and not by other means such as prescriptive use." Id. at P18. The court further stated:
We have found one case suggesting that public roads may be established by "common-law dedication and acceptance." Rodgers v. Ray, 10 Ariz. App. 119, 121, 457 P.2d 281, 283 (1969).
Rodgers, however, relies on Allied American Investment Co. v. Pettit, 65 Ariz. 283, 290, 179 P.2d 437, 441 (1947), in which the issue was whether a subdivision plot was properly dedicated as a public park. Burlington, 198 Ariz. 604, n.2, 12 P.3d 1208, n.2.