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,
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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
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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.
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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
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granting partial summary judgment to the Kadlecs and Howells.
We remand for further proceedings consistent with this opinion.1
_____________________________________
Michael D. Ryan, Justice
CONCURRING:
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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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