England v. Ally Ong Hing
In England v. Ally Ong Hing, 105 Ariz. 65, 72, 459 P.2d 498, 505 (1969), the claimant asserted, inter alia, that he had acquired a prescriptive easement to drive his cattle over another's ranch land. Id. at 71-72, 459 P.2d at 504-05.
As the court noted, "In Arizona, it is not uncommon for cattle to range at will across the open ranch lands. An owner of such land over which cattle grazed would certainly not be expected to surmise that the rancher who owned these cattle was asserting any claim of right to his land." Id. at 69, 459 P.2d at 502.
When adopting the rule on which the Trust relies, the England court reasoned the rule was appropriate "'where large bodies of privately owned land are open and unenclosed, because it is a matter of common knowledge that the owners do not object to persons passing over them for their accommodation and convenience.'" Id. at 72, 459 P.2d at 505.
The Arizona Supreme Court have recognized that England represents "the law in Arizona regarding the grazing of livestock on unenclosed land," Combs v. DuBois, 135 Ariz. 465, 468, 662 P.2d 140, 143 (App. 1982), but they have never applied England to prescriptive easement claims outside the context of large, open, rural properties.
This is consistent with the Restatement (Third) of Property: Servitudes 2.16 comment (g), which notes that "evidence that the claimed servient estate was wild, unenclosed, vacant land overcomes the presumption of prescriptive use . . . creating a presumption that the use was permissive."