Kadlec v. Dorsey

                    SUPREME COURT OF ARIZONA
                             En Banc

PAUL KADLEC and RACHEL KADLEC,    )   Arizona Supreme Court
husband and wife; DUANE HOWELL    )   No. CV-10-0028-PR
and BRENDA HOWELL, husband and    )
wife,                             )   Court of Appeals
                                  )   Division Two
            Plaintiffs/Appellees, )   No. 2 CA-CV 09-0053
                                  )
                 v.               )   Pima County
                                  )   Superior Court
DANIEL DORSEY and SHERRI DORSEY, )    No. C20076040
husband and wife,                 )
                                  )
           Defendants/Appellants. )
                                  )   O P I N I O N
__________________________________)


          Appeal from the Superior Court in Pima County
              The Honorable Virginia C. Kelly, Judge

                      REVERSED AND REMANDED
________________________________________________________________

          Opinion of the Court of Appeals, Division Two
                223 Ariz. 330, 223 P.3d 674 (2009)

                             VACATED
________________________________________________________________


LAW OFFICE OF CLOUD LLC                                       Tucson
     By   Bradley G. A. Cloud
Attorney for Paul Kadlec and Rachel Kadlec

VERNON E. PELTZ                                               Tucson
     By   Vernon E. Peltz
Attorney for Duane Howell and Brenda Howell

HINDERAKER & RAUH, P.L.C.                                     Tucson
     By   Adam Weisman
Attorneys for Daniel Dorsey and Sherri Dorsey

GUST ROSENFELD P.L.C.                                       Phoenix
     By   Charles W. Wirken
                                 1
Attorney for Amicus Curiae Land Title Association of Arizona

BARBARA LAWALL, PIMA COUNTY ATTORNEY                      Tucson
     By   Robert H. Gilbreath, Deputy County Attorney
Attorney for Amicus Curiae Pima County Board of Supervisors
________________________________________________________________

R Y A N, Justice

¶1         We today hold that the mere creation of a roadway

easement does not raise a presumption that the road has been

dedicated for public use.

                                        I

¶2         The      critical   facts    are     not    in   dispute.         Richard

Turigliatto owned land north of Tucson, which he split into

three lots.      A dirt roadway traversed the three lots, connecting

to public roads on either end.              As he sold the first two lots,

Turigliatto retained an easement across them.                 When he sold the

third and westernmost lot, Turigliatto retained ownership of the

roadway.      The    parcel    that    Daniel    and    Sherri      Dorsey    (“the

Dorseys”) ultimately purchased was one of the two originally

conveyed lots subject to the roadway easement.

¶3         Paul and Rachel Kadlec and Duane and Brenda Howell

(collectively “the Kadlecs”) own property nearby and had used

the roadway.      When the Dorseys blocked their access, they filed

this   action,    alleging,    among    other    things,     that    they     had   a

prescriptive easement and seeking a declaratory judgment that




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they had “the right to the reasonable use and enjoyment of the

right-of-way easement across the Dorsey Property.”

¶4           The Kadlecs moved for summary judgment, arguing that

the Dorseys’ land was “subject to an easement” and that they

were   the       beneficiaries.             In       a     cross-motion,           the       Dorseys

contended        that   the     court       should         presume        the     easement        was

intended to benefit only the land Turigliatto retained after the

sale of the Dorseys’ parcel.

¶5           The    superior        court       granted        summary      judgment         to   the

Kadlecs on different grounds.                   The court ruled that because the

original deed referred to the roadway and made no statement

limiting     its    use    to   a    particular            beneficiary,           the    deed     had

effected     a    public      dedication.                The   court      found       that     “[a]n

easement     which      consists     of     a    roadway[,]          by     its       very   nature

invites public use unless the dedicator’s intent was otherwise.”

¶6           In a divided opinion, the court of appeals affirmed.

Kadlec v. Dorsey, 223 Ariz. 330, ___ ¶ 1, 223 P.3d 674, 675

(App. 2009).        The majority recognized that, ordinarily, a public

dedication is not presumed.                  Id. at ___ ¶ 6, 223 P.3d at 676.

However, like the superior court, the majority concluded that

when   an    easement      is    a    road,          dedication        to       the     public     is

presumed.        Id. at ¶ 7.         In dissent, Judge Brammer argued that

such   a    presumption       runs    contrary            to   a   long     line       of    Arizona


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cases.    Id. at ___ ¶ 11-20, 223 P.3d at 677-81 (Brammer, J.,

dissenting).

¶7         We    accepted    review       of   this     issue    of   statewide

importance, see ARCAP 23(c), and have jurisdiction under Article

6, Section 5(3) of the Arizona Constitution and Arizona Revised

Statutes section 12-120.24 (2003).

                                      II

¶8         “An effective dedication of private land to a public

use has two general components — an offer by the owner of land

to dedicate and acceptance by the general public.”                       Pleak v.

Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 423-24 ¶ 21, 87 P.3d

831, 836-37 (2004) (citing Allied Am. Inv. Co. v. Pettit, 65

Ariz. 283, 287, 179 P.2d 437, 439 (1947) and Restatement (Third)

of Property: Servitudes § 2.18(1) (2000)).                Dedication is not

accomplished by particular words or forms of conveyance, but

does   require   “full[]    demonstrat[ion]      [of]    the    intent    of   the

donor to dedicate.”        Id. (citing Allied Am. Inv. Co., 65 Ariz.

at 287, 179 P.2d at 439); see also City of Scottsdale v. Mocho,

8 Ariz. App. 146, 149, 444 P.2d 437, 440 (1968) (evidence of

public dedication must be “clear, satisfactory and unequivocal”)

(citation omitted).         “Dedication is not presumed nor does a

presumption of an intent to dedicate arise unless it is clearly

shown by the owner’s acts and declarations.”              City of Phoenix v.

Landrum & Mills Realty Co., 71 Ariz. 382, 386, 227 P.2d 1011,
                                      4
1013 (1951).     Rather, “[t]he burden of proof to establish a

dedication is on the party asserting it.”         Id.

¶9        The court of appeals distinguished this settled case

law because the easement in question was a road.               Kadlec, 223

Ariz. at ___ ¶ 7, 223 P.3d at 676.             It relied principally on

Hunt v. Richardson, in which the court said that a road, “by its

very nature invites public use unless the dedicator’s intent was

otherwise.”     Id. (quoting 216 Ariz. 114, 120 ¶ 17, 163 P.3d

1064, 1070 (App. 2007)).      The court of appeals’ reliance on that

statement in Hunt is misplaced.         As noted by the dissent, the

quoted language “was relevant only to . . . [the] argument the

road did not serve a proper public use because it was only used”

by persons travelling to a limited number of properties.             Id. at

___ ¶ 16, 223 P.3d at 678 (Brammer, J., dissenting).

¶10       The   effect   of   the   decision    below   is   that,   unless

proven otherwise, a private road becomes public whenever the

property through which the road runs is subject to an easement.

But no Arizona case has so held.           To the contrary, we have

looked to the affirmative actions of the grantor to determine

whether land has been dedicated to the public.               See County of

Yuma v. Leidendeker, 81 Ariz. 208, 213-14, 303 P.2d 531, 535-36

(1956) (emphasizing the proprietor’s dedicatory statement, which

was signed, filed and recorded, and subsequent references to

such statement in transactions involving the sale of the land at
                                    5
issue); Evans v. Blankenship, 4 Ariz. 307, 314-15, 39 P. 812,

813   (Terr.    Ct.   1895)    (holding       that    recording      a   survey   map

indicating that land was for public use and making sale with

reference to it “show[ed] an irrevocable dedication of the land

in question to the public”).             Evans and Leidendeker, as we noted

in Pleak, involved sales of land with reference to “a recorded

plat containing the dedication.”              207 Ariz. at 424 ¶ 23, 87 P.3d

831, 837 (emphasis added).           Nothing in these cases supports the

proposition that merely because land can be properly dedicated

to public use it has been.

¶11        Preserving the burden of proof on the party asserting

a dedication to public use comports with the Restatement (Third)

of Property:      Servitudes, which recognizes both that evidence of

an offer to dedicate to the public is required, id. § 2.18 cmt.

e, and that, absent such evidence, courts presume the creators

of    easements    intend     to    burden     only    the   estates      or    other

interests they otherwise own, id. § 2.5 cmt. a (“The intent of

the parties determines which estates or servitude interests are

burdened   or     benefited    by    a   servitude.      .   .   .   [T]he     normal

inference is that the parties intend to burden or benefit the

estates or other interests they own in the property.”).                            We

therefore hold that the court of appeals erred in presuming a

dedication for public use and that the burden of establishing a

public dedication remained on the Kadlecs.
                                          6
                                        III

¶12        Summary     judgment    is    appropriate       when   there    is    no

genuine issue of material fact for a jury to resolve and the

moving party is entitled to judgment as a matter of law.                         See

Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-

09 (1990).    The Kadlecs had the burden of identifying facts from

which a jury reasonably could conclude that Turigliatto intended

a public dedication.         The record permits no such inference.

First, in contrast to        Evans      and    Leidendeker, no language in

Turigliatto’s deeds or survey map suggests that the easement was

dedicated to the public.          Second, when Turigliatto conveyed two

of the parcels in separate sales, he retained an easement over

the Dorseys’ lot and an adjacent eastern lot, while he still

held the westernmost parcel - a step that would be unnecessary

if the same easement had been dedicated to the public in those

transactions.    See Restatement (Third) of Property:                   Servitudes

§ 2.5 cmt. a.    Finally, when Turigliatto disposed of the western

parcel, he retained the ownership of the road, granting the

parcel only an easement.           On this record, therefore, partial

summary judgment should not have been granted to the Kadlecs on

this issue.

                                        IV

¶13        For   the   foregoing     reasons,       we   vacate   the    court   of

appeals’   decision    and   reverse         the   superior   court’s    decision
                                         7
granting partial summary judgment to the Kadlecs and Howells.

We remand for further proceedings consistent with this opinion.1




                                                               _____________________________________
                                                               Michael D. Ryan, Justice

CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
Andrew D. Hurwitz, Vice Chief Justice


_____________________________________
W. Scott Bales, Justice


_____________________________________
A. John Pelander, Justice




                                                            
1
     Because our holding does not resolve the Kadlecs’ claim for
prescriptive easement rights, we decline to grant the Dorseys’
request for attorney’s fees pending further proceedings in the
superior court.
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