dissenting. The issue in this case is whether the subject property was reserved to the developer (who defaulted his interest to the Brians) or whether the developer dedicated the property to the City of Cabot. I would affirm because the developer reserved the property in question and because, even if the property was dedicated, the circumstances do not support a finding that the City accepted the dedication. Thus, to reverse would put the City in a position that neither the developer’s actions nor the City’s conduct supports.
The relevant portions of the bill of assurance, examined more fully, are as follows:
There are strips of ground shown on said plat and marked “easements” reserved for the use of public utilities and/or for drainage purposes, subject at all times to the proper authorities and to the easement herein reserved. Owners of the lots shall take subject to the right of public utilities and the public.
The filing of this Bill of Assurance and plat for record in the office of the Circuit Clerk & Recorder of Lonoke County, Arkansas, shall be a valid and complete delivery and dedication of the streets and easements shown on the said plat.
In addition, Note 7 of the plat specifies: “Access easement shown between Lots 55 and 56 reserved future right-of-way.” Every other easement on the plat is merely labeled as an “easement.”
The determinative factor is whether the developer intended the above language to function as a reservation or a dedication. Dedication is ordinarily considered as the opposite of reservation. Arkansas State Highway Comm’n v. O. & B., Inc., 227 Ark. 739, 301 S.W.2d 5 (1957). Thus, the term “reserved” is a term of art that does not evince an intent to dedicate property to a city but to retain an interest in property. The majority contends in footnote 1 of its opinion that if the developer continued to own the property, then it is “illogical” that the developer needed to also reserve the property for a particular purpose. It is true that the developer was not required to reserve the property for a particular purpose. However, the developer clearly was required to reserve any interest in the property that he intended to retain — if the reservation of the access easement had «oí been made, then the property would have been dedicated to the City via the language in the bill of assurance and the plat. Thus, the logical conclusion is that, by taking the additional step of reserving the access easement, the developer intended not to dedicate that property to the City but to reserve it for future use as he saw fit. Accordingly, it was not “illogical” for the developer to dedicate some property but to reserve other property for a specific use. To the contrary, the fact that the developer here reserved property for a specific purpose convincingly demonstrates that he intended to determine the future use of the property, rather than to allow the City to make that determination.
The majority relies on the language from the bill of assurance stating that the filing of the plat and the bill of assurance shall constitute a “valid and complete delivery and dedication of the streets and easements shown on the said plat.” Due to that language, and due to the fact that the disputed piece of property is an easement, the majority concludes that the disputed property, which contains the word “easement” in its description, was dedicated to the City because all easements under the plat are dedicated to the City. This is not true.
The majority, while accusing the Brians of ignoring the plain language of the plat and bill of assurance, itself ignores the plain language of the plat and bill of assurance dedicating “easements” as public-usage easements, but specifically reserving the subject property as an “access easement” (emphasis added). In so doing, the majority points to the language in the bill of assurance indicating that the owners of the lots take title subject to the rights of public utilities and the public. However, the majority disregards the fact that this provision more fully states:
There are strips of ground shown on said plat and marked “easements” reserved for the use of public utilities and/or for drainage purposes, subject at all times to the proper authorities and to the easement herein reserved. Owners of the lots shall take subject to the right of public utilities and the public.
Thus, while the owners of the lots take subject to the rights of the public utilities and the public, the rights of the public utilities and the public are limited by the reservation and other limiting language in the plat and bill of assurance in this case.
The plain, unambiguous language as quoted above indicates that the lots marked merely “easement” are the lots intended for public purposes. However, the lot in question is marked, “access easement.” On its face, the reservation of an “access easement” for a “future-right-of-way” where the remaining easements are dedicated for public usage evinces a clear intent to treat the subject property differently, and not as an easement presently dedicated for public usage. See Arkansas State Highway Comm’n v. O. & B., Inc., supra, (affirming a jury verdict finding no dedication where the owner reserved the land for sale to the public agency involved).
The majority also claims that the reservation is ambiguous and thus, that the surrounding circumstances must be considered in determining what the developer meant by using the word “reserved.” However, when the language of the bill of assurance and plat is construed in its entirety, there is no ambiguity. Moreover, tellingly, none of the City’s witnesses testified as to the surrounding circumstances at the time the plat was adopted, except for the City Clerk, who merely testified that the City did not pass an ordinance accepting the plat. The testimony by John Benefield and James Von Tungeln, who were not employed by the City at the time the plat was adopted, merely established the Cabot City Planning Commission interpreted the language in Note 7 of the plat stating that “access easement shown between Lots 55 and 56, reserved future right-of-way” to mean that in the future that area would be a city street used to access property east of the subdivision.
Quite simply, the fact alone that the City would presently benefit if the developer had dedicated the property to the City in 1994 does not establish that it was the developer’s intent to do so or that he thereafter did so. Nor is it relevant that under the City’s current regulations, which were not in effect when the plat was adopted, that a “stub street” is required to access future development. Further, it does not matter that the trial court speculated or assumed that the developer reserved the land for the purpose of developing the property to the east or even, as the City asserts, that the developer may have reserved the property in 1994 with the eventual intent to provide the City a future right-of-way. The owner’s intent must be ascertained from the acts of the owner and not from any purpose hidden in his mind. Fort Smith & Van Buren Bridge Dist. v. Scott, 111 Ark. 449, 163 S.W. 1137 (1914). Thus, it matters only that the developer did not, when the plat was filed or thereafter, actually dedicate the property to the City.
Moreover, the majority errs in holding that the City can claim fee title to the land and thereby defeat the Brians’s adverse possession claim because “the dedication was borne out by surrounding circumstances.” Although the trial court did not appear to rely on this fact, I would affirm on this alternate ground because it is clear that the plat was not accepted by a City ordinance, as is required pursuant to Ark. Code Ann. § 14-301-102 (1987). This statute provides:
[n]o street or alley which shall be dedicated to public use by the proprietor of ground in any city shall be deemed to be a public street or alley, or to be under the care or control of the city council, unless the dedication shall be accepted and confirmed by an ordinance specially passed for that purpose.
It is clear here that the City did not enact an ordinance accepting the plat and that even if the City did accept the plat, that acceptance never became irrevocable.
As previously noted, the only surrounding circumstance at the time the plat was adopted that was established was that the City did not pass an ordinance accepting the plat. Under the 1994 subdivision regulations in effect at the time the plat was filed, the City did not require that an ordinance be passed in order to accept a plat — only approval by the City Council was required. Thus, the City passed no ordinance to accept the plat in this case. However, despite the fact that the City of Cabot in 1994 did not require the City to pass an ordinance to accept a plat, Arkansas law did impose that requirement.
Despite this requirement, the majority insists that the City gained fee title to the property, reasoning that the City’s acceptance has become irrevocable since the plat was filed and plots have been sold in reference to the plat. It is true that where the plat is filed and lots are sold in reference to it, the public areas, such as streets, passageways, public use squares, or other public places shown on the plat become public property, the dedication becomes irrevocable, and a city may thereafter accept the dedication at any time. City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993); Arkansas State Highway Comm’n v. Sherry, 238, Ark. 127, 381 S.W.2d 448 (1964). However, the City here has not gained fee title by this method — the area in question is not a public area because it was reserved, it was not used for public purposes, and it was privately used.
The majority cites to Wenderoth v. City of Fort Smith, 256 Ark. 735, 510 S.W.2d 296 (1974), to support that a dedication of public areas may become irrevocable even where there has been no public use of the property in question. In that case, the trial court specifically determined that a twenty-five foot strip of property was dedicated to the city for street purposes even though the area had not been used by the public. However, that case is distinguishable. First, the plat in that case specifically stated that the streets shown were dedicated for public use as highways and contained two similar twenty-five foot strips of land that had been named as streets. Second, the land in question had never been used by the public, but also had never been treated as private property. Finally, the party in Wenderoth was estopped from arguing the land in question had been dedicated as a public street when they had previously taken an inconsistent position at a meeting with city officials.
By contrast, here, it cannot be said that the property at issue was “dedicated” in any respect, much less as a public area — the majority’s opinion in this regard simply ignores the effect of the reservation in Note 7 of the plat. Simply because a plat is filed and lots are sold with reference to the plat does not mean that all of the property shown on the plat is thereby dedicated to the public. The fact that public areas become dedicated to the city upon filing of a plat does not preclude a developer from reserving an interest in certain property; to the contrary, that is the precise purpose of a reservation.
In any event, the property in this case is not a public area as was the property in Wenderoth. Although the property could have been dedicated or developed as an extension of Birchwood Drive, which borders the property on the west, it was not so dedicated or developed. Further, unlike the property in Wenderoth, nothing on the plat supports that there were other similar lots that were reserved for public use. To the contrary, as noted previously, the property at issue is the only property that is labeled an access easement that is reserved for future right-of-way.
Like the property in Wenderoth, the property in this case was not used by the public; however, unlike the property in Wenderoth, the instant property was put to private use that rose to such a level that the trial court found that the Brians had possessed the property by adverse possession. Thus, unlike the property owners in Wen-deroth, it cannot be said here that the Brians ever averred that the property was public property or that they should be estopped from asserting that the property was reserved.
Accordingly, even assuming that the plat was properly accepted by the City, that acceptance did not grant to the City fee title to that property included in the plat that was not a public area and that was not otherwise dedicated to the City. For the above reasons, I would affirm the trial court’s order quieting title in the Brians.