(dissenting) :
I must respectfully dissent from the conclusion arrived at by the majority in affirming the decision of the trial court.
The majority apparently base their decision upon this point, to wit: “The trial court held that there had been no dedication of the property in dispute as a public park mainly because there had been no intent on the part of the subdividers to so dedicate the property.” They then cite all of the Arizona cases on this subject and conclude by saying: “A reading of these cases would indicate, at first glance, that there had been a dedication of Pinedale Park when the plat was recorded and lot sales were made with reference to the plat. However, the present case differs in one very important respect from the above cited cases. In none of the above cited cases did the subdivider appear as a party nor was any substantial evidence presented as to the intention of the subdivider. The courts * * were required to resort to rules of construction in order to determine the intent of the subdividers where this intent was not clearly expressed on the plat and there was no evidence of the actual intent of the subdivider.” The majority then go on to say: “However, the cases also indicate that the primary concern of the courts is to determine the intention of the subdivider. If the intention of the subdivider is inconsistent with the presumption of dedication, then the intention prevails over the presumption. * * Where, as here, there were no words of dedication with reference to Pinedale Park, the presumption may be rebutted and the presumption may be weighed against affirmative evidence to the contrary.”
The question of whether or not there was a dedication must be determined as of the date when the dedication was or was not made. In this case that action was in the year 1929 and not three, twenty-five or thirty-five years later.
In 1929 the subdivision plat was prepared. This plat provided for streets and alleys and an area approximately nine acres in size designated as “Pinedale Park”. At the time the plat was filed the area was not within the city limits of the City of Flagstaff and did not become a part of that city until 1957. At the time the plat was filed the City was very concerned with the question of their obligation to the subdivision and were assured that no obligation was placed upon the city. In 1957 the area was annexed and became a part of the City of Flagstaff. No question has been raised as to whether there was or was not a legal dedication of the streets and alleys even though the city council at the time the plat was filed expressly stated that they would not accept any obligation.
This case does not involve the dedication of a street or alley but the dedica-^ tion of a public park. The application of the law to these two different situations is different and it is this difference that I believe the majority have overlooked.
In the case of McKernon v. City of Reno, 76 Nev. 452, 357 P.2d 597, the Nevada Supreme Court has very plainly explained the law governing this situation. The Nevada court pointed out that: (357 P.2d at 600)
“In the dedication of a street a burden is placed upon the city. The improvements upon a dedicated park are left to be made by those who are interested. The city may take it up, or it *135may be left to individuals. The resulting public benefit may result simply from leaving space for air or unobstructed view. Attorney General v. Abbott, 154 Mass. 323, 28 N.E. 346, 13 L.R.A. 251. It is such theory that developed into the rule enunciated in Smith v. State, 217 Ind. 643, 29 N.E.2d 786, 791, where the court said: ‘The authorities are abundant which hold that where the dedication is beneficial to the donee without imposing any burdens, acceptance will be presumed as of the the date of the dedication. McQuillan Municipal Corporations, 2nd Ed., Vol. 4, p. [771] 554, § 1703; Ramstad v. Carr, [1915, 31 N.D. 504, 154 N.W. 195, L.R.A. 1916B, 1160].’
“In the last-named case the court, after noting the general propositions that a dedication is in the nature of a grant, that a grant does not become effective until accepted by the grantee, that such acceptance need not be by formal or express words but may be by acts or conduct, says: ‘It is also true, as a general rule, that delivery of a grant implies its acceptance by the grantee, * * * and acceptance of a grant beneficial to the grantee may be presumed. This is especially true where it conveys valuable property, and creates no obligation or burden to be assumed by the grantee.’ [31 N.D. 504, 154 N.W. 202].”
The majority opinion recognizes that there are two methods of dedication, the statutory and the common-law. In this case we are concerned only with the common-law. It is also recognized that in the absence of an acceptance a dedication is in law merely an offer to dedicate, and that an offer to dedicate does not become binding until the offer is accepted. The McKernon case, supra, points out four exceptions to this rule, two of which are: “where a dedication is by sale of lots with reference to a plat showing dedications, in which case the weight of authority holds that no acceptance is necessary, City of Santa Clara v. Ivancovich, 47 Cal.App.2d 502, 118 P.2d 303. * * * The fourth exception is the one we have first noted, that where a dedication is beneficial to a donee without imposing any burden, acceptance will be presumed as of the the date of the dedication.”
The testimony of the original subdivider as to what his intention was in 1929 at the trial in 1965 is immaterial and can only be self serving. There should be no different rule of law governing the dedication of a park where the original subdivider is deceased or unavailable from that where the original subdivider is living, available, owns the property and has an interest in setting aside the property to himself or a successor in interest. As stated above, the dedication was complete in 1929. The facts of this case give no cause to upset the holdings in the prior Arizona decisions upon the same matter. The actions of the subdivider or the city once the grant has passed to the public are immaterial. Whether or not the parties were right or wrong in assessing taxes or not assessing sewer assessments or seeking easements or striking the land from the tax roll is immaterial. These acts can neither take away the life or breathe life into the dedication. As the Nevada court said in the McKernon case, supra, “the dedication is to the public and that the public is an everexisting grantee, capable of taking a dedication for public use.”
It is my opinion that the judgment of the lower court should be reversed and the case remanded for further necessary proceedings because of the judgment heretofore entered. At that time all necessary and proper parties could be brought into the action.
NOTE: Chief Judge JAMES DUKE CAMERON having requested that he be relieved from the consideration of this matter, Judge WILLIAM W. NABOURS of the Superior Court was called to sit in his stead and participate in this decision.