dissenting.
I respectfully dissent from the majority opinion and would affirm Judge Judd’s original finding after a court trial in this case. The reason for the dissent can be found in the plat dedication signed by Mr. And Mrs. McWilliams wherein it says in applicable part:
KNOW ALL MEN BY THESE PRESENTS, that we, K.J. McWilliams and Anna M. McWilliams, his wife, have caused to be laid off and platted into lots, block, and roads the land shown upon this plat to [sic] known as “PONDEROSA HOME SITES.”
This shows a specific intent to divide the entire land known as Ponderosa Homesites into three basic legal definitions of lots, blocks, and roads. The McWilliams additionally “dedicate to the public, for the use of the public as highways the roads shown upon this plat. The lakeshore lots include shore-land and riparian rights.” I have included as Exhibit A to this dissent the final plat of Ponderosa Homesites. In that plat it is plain to see that a service road is at the top of the plat. It is noted that all other lots are totally inscribed by lot lines except for a “lake access.” Lot 4 is an enclosed lot that does not go all the way to the shoreline as lots 1, 2 and 3 do; however, it abuts the lake inlet in its southeastern portion. This shows a specific intent that the lake access is a part of the service road because it shows no intersecting lines at the beginning of the “lake access” and, in addition, Lot 4 is stopped short of lots 1, 2 and 3 so that there can be a large lake access area. I believe that this shows an intent that “lake access” as noted on the final plat of the Ponderosa Homesites means that it is part of the “roads” dedicated to the public.
The majority tries to distinguish the case of Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969) from the facts of this case and I respectfully disagree. I have enclosed as Exhibit B to this dissent the Exhibit No. 1 from the Smylie case found at 93 Idaho at 189, 457 P.2d at 428. As can be seen in that case the open roadway above lots 12 and 11 is entitled “driveway.” That denotes an even more private or personal use than “lake access” in the case before the Court at this time. However, the Idaho State Supreme Court found in a unanimous decision that it was clear’ that the intent of the landowner was to make the “driveway” a public access. Again, Smylie depends upon Cassell v. Reeves, 265 S.W.2d 801 (Ky.1954).
The Idaho Supreme Court quotes Cassell at 93 Idaho at 191, 457 P.2d at 430 as follows:
And, nothing else appearing, it is held that all the streets, alleys, parks or other open spaces delineated on such map or plat have been dedicated to the use of the purchasers of the lots and those claiming under them as well as of the public.
In fact, the Comb in Smylie found the purpose for the “driveway” was land access to lots 8-12. 93 Idaho at 192, 457 P.2d at 431 (See Exhibit B.) The Court in Smylie distinguishes Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247 (1913) as this Court should do also.
In the Deffenbaugh case, the plat showed certain streets and avenues as well as an area designated as “beach” or “sandy beach” along La Deleardo Bay, an arm of Lake Coeur d’Alene. There the owner filed for record not only the plat but a written dedication of the streets and avenues which the plat indicated. This dedication did not include the beach area. Thus, apparently on the theory of expression unius est exclusion alterius, the court found no intention to dedicate the beach area. A written dedication of some portion *704of the plat is not an element in the case at bar. The original owner’s intention can be inferred only from the plat itself. In one respect, the reasoning in the Deffenbaugh ease may support the result we reach here, for the court there went on to declare that it was the owner’s intention “to grant a perpetual easement in this beach to the purchasers of lots (in that development).”
93 Idaho at 193, 457 P.2d at 432.
In Deffenbaugh the Idaho Supreme Court was looking at a difference in language on the plat and on the attached dedication. The plat had the land between the lot line and water line as “beach” or “sandy beach” while the dedication attached to the plat said nothing about this area. “Thus, apparently on the theory of expression unius est exclusion alterius the court found no intention to dedicate the beach area.” 93 Idaho at 193, 457 P.2d at 432.
This Court should distinguish Deffen-baugh, rely on Smylie, and hold there was an intent shown from the plat to make the “lake access” open to the public and thus affirm the trial court who made this original finding of fact as to the McWilliams’ intent.
*705EXHIBIT A
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*706EXHIBIT B
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