(dissenting).
I respectfully dissent. It appears to me the trial court erred in finding by way of summary judgment that appellant’s driveway was a public right-of-way by common law dedication.
When, as in this case, the evidence is conflicting, relating to such questions as to whether the owners intended to dedicate and whether the public accepted the dedication, the ultimate question of dedication is particularly one for the trier of fact. Morse v. Zeize, 34 Minn. 35, 36, 24 N.W. 287, 288 (1885); Keiter v. Berge, 219 Minn. 374, 380, 18 N.W.2d 35, 38 (1945).
Henry Loxtercamp’s affidavit relating to his intent to dedicate the driveway to the public is suspect, and clearly raises issues of fact that should not be resolved by summary judgment. He sold the lake lot to appellants on a contract for deed. The subsequent warranty deed did not list any exceptions. However, in later affidavits, Loxtercamp contradicts the warranty deed. By Loxtercamp’s own admissions there is a material issue of fact regarding his dedicatory intent. Loxtercamp stated:
When I bought the property and at all times I owned the property, I knew there was a long established roadway across the property which was used by all the Little Birch Lake cabin owners and the public. * * * I assumed everyone had the right to use the road.
Loxtercamp also stated that, when he sold the property to the Storms,
I knew when I signed the contract for deed that area property owners and the general public had the right to the year-around use of the roadway across Lot 2. ******
I intended that the roadway be dedicated, used and maintained year-around for the general use of the area cabin owners and the public.
Loxtercamp’s affidavits indicate his belief that his neighbors as well as the public had a “right” to use the roadway crossing the Storm property. However, as noted, Loxtercamp did not list any exceptions to title in the warranty deed, nor did the legal description refer to a public or other road crossing the property. In addition, the exceptions listed in the contract for deed did not refer to a right reserved to the public to use the driveway.
The permissive acquiescence of other pri- or owners to use the driveway is neutral as to the issue of dedicatory intent. Permissive acquiescence is equally indicative of a gratuitous user, or of a revocable license. As the court stated:
For why shall we infer that an individual makes a gift of his property to the public from an equivocal act, which equally proves an intention to grant a mere revocable license?
In re Stees, 142 Minn. 340, 344, 172 N.W. 219, 221 (1919).
Mere permissive use of land as a roadway, where the use is consistent with the assertion of ownership by the alleged dedicator, does not of itself constitute a dedication nor demonstrate a dedicatory intention. Security Fed. Sav. & Loan v. C & C Invest, Inc., 448 N.W.2d 83, 88 (Minn.App. *3831989) pet for rev. denied (Minn. Jan. 18, 1990).
This is not a case where the adjacent lot owners would be denied access to their property were it not for appellants’ driveway. The use of appellants’ driveway is merely a shortcut for those users. Nothing prohibits them from cutting a logging trail type driveway through their own lot, the same as exists on appellants’ lot. Appellants have expressly permitted some immediately adjacent lot owners to use their driveway but object to the volume of traffic occasioned by other cabin owners on the lake, as well as traffic from a resort.
The majority bases their decision in part on the fact that other lot owners have made repairs to the roadway over the years. However, a review of the record indicates negligible repair work amounting to no more than an occasional filling in of a depression in the road.
This is not a proper case for summary judgment. I would remand for trial on the merits.