KADLEC/HOWELL v. DORSEY

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SUPREME COURT OF ARIZONA En Banc PAUL KADLEC and RACHEL KADLEC, husband and wife; DUANE HOWELL and BRENDA HOWELL, husband and wife, ) ) ) ) ) Plaintiffs/Appellees, ) ) v. ) ) DANIEL DORSEY and SHERRI DORSEY, ) husband and wife, ) ) Defendants/Appellants. ) ) __________________________________) Arizona Supreme Court No. CV-10-0028-PR Court of Appeals Division Two No. 2 CA-CV 09-0053 Pima County Superior Court No. C20076040 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 By Bradley G. A. Cloud Attorney for Paul Kadlec and Rachel Kadlec Tucson VERNON E. PELTZ By Vernon E. Peltz Attorney for Duane Howell and Brenda Howell Tucson HINDERAKER & RAUH, P.L.C. By Adam Weisman Attorneys for Daniel Dorsey and Sherri Dorsey Tucson GUST ROSENFELD P.L.C. By Charles W. Wirken Phoenix 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 alleging, action, among other things, that they had a prescriptive easement and seeking a declaratory judgment that 2 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. that contended In should the court a cross-motion, presume the the Dorseys easement was intended to benefit only the land Turigliatto retained after the sale of the Dorseys parcel. ¶5 The superior court granted Kadlecs on different grounds. summary judgment to the The court ruled that because the original deed referred to the roadway and made no statement limiting its use effected a easement which to public a particular dedication. consists of a beneficiary, The court roadway[,] the found by its deed that very had [a]n 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 presumed. such a is a Id. at ¶ 7. presumption runs road, dedication to the public is In dissent, Judge Brammer argued that contrary 3 to a long line of Arizona 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[] donor to dedicate. demonstrat[ion] [of] the intent of the 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, 4 1013 (1951). Rather, [t]he burden of proof to establish a dedication is on the party asserting it. ¶9 Id. The court of appeals distinguished this settled case law because the easement in question was a road. Ariz. at ___ ¶ 7, 223 P.3d at 676. Kadlec, 223 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 5 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. 831, 837 (emphasis added). 207 Ariz. at 424 ¶ 23, 87 P.3d 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. 6 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, 100809 (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 appeals decision foregoing and reasons, reverse the 7 we vacate superior the court s court of decision granting partial summary judgment to the Kadlecs and Howells. We remand for further proceedings consistent with this opinion.1 _____________________________________ Michael D. Ryan, Justice CONCURRING: _____________________________________ 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. 8

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