Pleak v. ENTRADA PROPERTY OWNERS'ASS'N

SUPREME COURT OF ARIZONA
En Banc

ROBIN R. PLEAK and AUDREY PLEAK, ) Arizona Supreme Court
husband and wife; and MICHAEL T. ) No. CV-03-0310-PR
SHURTLIFF and ANN SHURTLIFF, )
husband and wife, ) Court of Appeals
) Division Two
Plaintiffs/Appellants, ) No. 2 CA-CV 01-0100
)
v. ) Pima County
) Superior Court
ENTRADA PROPERTY OWNERS' ) No. C20001553
ASSOCIATION, an Arizona )
non-profit corporation; PALO )
SECO CORPORATION, an Arizona ) O P I N I O N
corporation; BETTY C. BRITTON, )
an unmarried woman; JUAN A. )
SOMOZA, an unmarried man; TRES )
PIEDRAS, L.L.C., an Arizona )
limited liability corporation; )
STEVE V. THILL, an unmarried )
man; CINDY D. BEGNER, an )
unmarried woman; EDNA C. STACK, )
an unmarried woman; CAROLINE )
DODGE, a married woman; MARY R. )
DERRICK, an unmarried woman; )
FLEET MORTGAGE CORP., a South )
Carolina corporation; DETLEF D. )
LANGE and SALLY F. LANGE, )
husband and wife; BGR, L.L.C., )
an Arizona limited liability )
company; and MORTON R. ROSEN, a )
widower, )
)
Defendants/Appellees. )
)
__________________________________)
 Appeal from the Superior Court of Pima County
The Honorable Jane L. Eikleberry, Judge

VACATED AND REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
205 Ariz. 471, 73 P.3d 602

AFFIRMED
_________________________________________________________________

GUST ROSENFELD, P.L.C. Phoenix
By: Charles W. Wirken
Attorney for Plaintiffs-Appellants

LAW OFFICE OF MARK RUBIN, P.L.C. Tucson
By: Mark Rubin
LEWIS AND ROCA, L.L.P. Tucson
By: John N. Iurino
John Hinderaker
Erin O. Simpson
Attorneys for Defendants-Appellees

MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. Phoenix
By: Gary L. Birnbaum
Michael S. Rubin
David J. Ouimette
Attorneys for Amicus Curiae
Land Title Association of Arizona

MATTHEW J. SMITH, MOHAVE COUNTY ATTORNEY Kingman
By: John K. White, Deputy County Attorney
Attorneys for Amicus Curiae
Mohave County

H U R W I T Z, Justice

¶1 The central issue in this case is whether Arizona

continues to recognize common law dedications of roadway

easements for public use. We conclude that such common law

2
dedications remain viable, and that the dedication at issue in

this case meets the requirements of the common law.

I.

¶2 On June 3, 1988, First American Title Insurance

Company of Arizona recorded a “Record of Survey” for the Entrada

development in rural Pima County. The survey covered three

adjacent sections of real property and divided each section into

sixteen forty-acre parcels. The survey depicts an easement

along the eastern seventy-five foot edge of Entrada. The survey

also contains a “Grant of Roadway and Utility Easement” stating

that First American, “the owner of record of the property

included in the easements shown hereon[,] hereby dedicate[s]

these easements to the public for the use as such.”

¶3 The developer of Entrada then sold the lots created by

the survey; each conveyance document expressly referred to the

survey. In 1988, the easement specified in the survey was a

jeep trail used only by a rancher who had been grazing cattle on

the property, and was impassable by conventional motor vehicles.

Access to the road was barred by a barbed wire fence. In 1996,

however, the Entrada Property Owners’ Association improved the

road. In 1997, Pima County named the road Kolb Road, but in

doing so expressly disavowed any responsibility for the road,

and has never performed any improvement or maintenance on it.

3
¶4 Sycamore Canyon Estates is a development abutting the

eastern edge of Entrada. After Kolb Road was improved, the

developer of Sycamore Canyon cut the fence to gain access to the

improved road. Sycamore Canyon property owners, including

appellees Robin R. and Audrey Pleak, thereafter used the road to

access their property.

¶5 The Pleaks and the other appellees (collectively, the

“Pleaks”) subsequently filed a three-count complaint, requesting

the superior court to declare that First American had dedicated

the Kolb Road easement to the public, quiet title in the roadway

“in trust for the public,” and permanently enjoin First

American’s successors in interest (collectively, “Entrada”) from

interfering with the use of the road. The Pleaks argued that

the dedication had occurred both statutorily and pursuant to

common law. Entrada counterclaimed, asking the superior court

to quiet title in the easement “as a private road” and to enjoin

the Pleaks from using it.

¶6 The superior court granted partial summary judgment to

Entrada. The court first rejected the argument that Kolb Road

had been statutorily dedicated to public use pursuant to Arizona

Revised Statutes (“A.R.S.”) § 9-254 (2001) or A.R.S. § 11-806.01

(2001), finding that neither statute applied to the Entrada

development. The superior court also found no common law

dedication, holding that although First American had intended to

4
dedicate the roadway to the public, the dedication had never

been properly accepted. The court of appeals reversed. Pleak

v. Entrada Prop. Owners’ Ass’n, 205 Ariz. 471, 73 P.3d 602 (App.

2003). The court of appeals agreed with the superior court as

to the absence of a statutory dedication, but found a valid

common law dedication. Id. at 478 ¶¶ 23-24, 73 P.3d at 609.

¶7 Entrada petitioned for review, claiming that common

law dedications of roadway easements for public use are no

longer recognized in Arizona. Entrada’s petition also argued

that, even if common law dedications remain viable, the

dedication in this case is ineffective because it has not been

validly accepted. We granted review because these issues are of

statewide importance. We exercise jurisdiction pursuant to

Article 6, Section 5(3), of the Arizona Constitution, A.R.S. §

12-120.24 (2003), and Arizona Rule of Civil Appellate Procedure

23(c)(3).

II.

A.

¶8 Under the common law, an owner of land can dedicate

that land to a proper public use. Restatement (Third) of Prop.:

Servitudes § 2.18(1) (2000). Our cases have long recognized and

applied this common law doctrine. E.g., Evans v. Blankenship, 4

Ariz. 307, 39 P. 812 (1895) (upholding common law dedication of

a public park). The effect of a common law dedication is that

5
the public acquires an easement to use the property for the

purposes specified, while the fee remains with the dedicator.

Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 290, 179 P.2d 437,

441 (1947); Moeur v. City of Tempe, 3 Ariz. App. 196, 199, 412

P.2d 878, 881 (1966).

¶9 It was settled long ago in this state that the

doctrine of common law dedication applies to the dedication of

roadway easements for public use. Thorpe v. Clayton, 10 Ariz.

94, 99-100, 85 P. 1061, 1062 (1906). Entrada argues, however,

that the common law was abrogated in the 1901 Territorial Code,

and that since 1901, dedications of roadway easements for public

use can only be made pursuant to a specific authorizing statute.1

¶10 The linchpin of Entrada’s argument is paragraph 3956 of

the 1901 Code, which provides:

All roads and highways in the territory of Arizona
which have been located as public highways by order of
the board of supervisors, and all roads in public use
which have been recorded as public highways, or which
may be recorded by authority of the board of
supervisors, from and after the passage of this title,
are hereby declared public highways; and all roads in
the territory of Arizona now in public use, which do
not come within the foregoing provisions of this
section, are hereby declared vacated . . . .

Ariz. Civ. Code ¶ 3956 (1901). Entrada reads this statute as

providing that, from 1901 onward, there are only two categories

1
The Pleaks do not contest in this court the holdings
below that there has been no valid statutory dedication of Kolb
Road.

6
of roads — public and private — and the former can only be

created pursuant to statute.

¶11 However, the central historical premise of Entrada’s

argument — that the 1901 Code abrogated the existing common law

— is flawed. Paragraph 3956 of the 1901 Code was simply a

recodification of a provision first appearing, in substantially

the same form, in the 1871 Code, Ariz. Civ. Code § 1 at 550

(1871), and subsequently recodified in the 1887 Code. Ariz.

Civ. Code ¶ 2736 (1887). Therefore, if the 1901 Code were

intended to abrogate the common law with respect to dedications

of roadway easements for public use, the same would necessarily

have been true of the 1871 and 1887 Codes. Yet, in Thorpe, this

court recognized the validity of an 1888 common law dedication

of a roadway easement to public use, a result clearly precluded

under Entrada’s reading of paragraph 3956. See Thorpe, 10 Ariz.

at 99-100, 85 P. at 1062.

¶12 More importantly, Entrada’s argument that paragraph

3956 abrogated the common law with respect to the dedication of

roadway easements for public use fails as a matter of statutory

construction. Our statutes have long provided that the common

law, except when “repugnant to or inconsistent with the

constitution of the United States or the constitution or laws of

this state . . . is adopted and shall be the rule of decision in

all courts of this state.” 1907 Ariz. Sess. Laws, ch. 10, § 8,

7
codified at A.R.S. § 1-201 (2002). Therefore, if the common law

is to be changed or abrogated by statute, the legislature must

do so expressly or by necessary implication. See Wyatt v.

Wehmuller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991) (citing

S.H. Kress & Co. v. Superior Court, 66 Ariz. 67, 73, 182 P.2d

931, 935 (1947)). Absent a clear manifestation of legislative

intent to abrogate the common law, we interpret statutes with

“every intendment in favor of consistency with the common law.”

In re Thelen’s Estate, 9 Ariz. App. 157, 160-61, 450 P.2d 123,

126-27 (1969).

¶13 Paragraph 3956 does not manifest a clear intention by

the legislature to abrogate the common law of roadway dedication

to public use. Its first clause merely denominates certain

roads as “public highways.” As this court recognized in 1904,

the phrase “public highways” in paragraph 3956 was meant simply

to describe those roads “as come within the express provisions

of the statutes declaring them to be such.” Territory v.

Richardson, 8 Ariz. 336, 339, 76 P. 456, 457 (1904); cf. State

v. Cardon, 112 Ariz. 548, 550, 544 P.2d 657, 659 (1976) (noting

that “public highways” are those established by various

statutory means). Nothing in this portion of paragraph 3956

suggests that landowners are somehow thereby prevented from

dedicating their privately owned land to public use. Cf. Moeur,

3 Ariz. App. at 199, 412 P.2d at 881 (contrasting a valid

8
statutory dedication, in which the fee passes to a governmental

entity, with a common law dedication, for which the fee remains

with the dedicator).2

¶14 Nor does the final phrase of paragraph 3956, which

provides that “all roads in the territory of Arizona now in

public use, which do not come within the foregoing provisions of

this section, are hereby declared vacated,” abrogate the common

law allowing dedications of roadway easements to public use.

This portion of the statute merely declares certain existing

roads in “public use” to be “vacated.” As the contemporaneous

construction of paragraph 3956 in Richardson makes clear, this

“vacation” simply meant that these roads could no longer be

considered “public highways,” not that they thereby reverted to

solely private ways. 8 Ariz. at 340, 76 P. at 456.

¶15 Indeed, Richardson expressly recognized that “public

highways” and “private roads” were not the only two categories

of roads in the territory in 1904. Rather, this court noted

that “a way may be a road that is neither a public highway nor a

2
See A.R.S. § 9-254 (providing that upon filing of a
map or plat for a town, the “fee of streets . . . reserved
therein to the use of the public vests in the town, in trust,
for the uses therein expressed”; if the town is not
incorporated, then the “fee vests in the county until such time
as the town becomes incorporated”); A.R.S. § 11-806.01(F)
(providing that on recording of a plat for certain subdivisions,
“the fee of streets . . . reserved to the use of the public
vests in trust in the county for the uses and to the extent
depicted on the plat”; in the event of “annexation by any city
or town such fee automatically vests in the city or town”).

9
private road or way, under our statutes.” 8 Ariz. at 339, 76 P.

at 457. Richardson therefore emphasized that “many, if not a

majority, of the roads and ways running throughout all parts of

the territory, and frequently in general public use, are neither

public highways nor private ways.” Id. This category of roads,

as Richardson recognized, included roads where individuals had

obtained an easement to pass over grounds owned by another,

whether by grant or other means. Id. at 339, 76 P. at 457.

¶16 Moreover, Entrada’s argument that paragraph 3956 was

intended to abrogate the doctrine of common law road dedications

for public use runs afoul of A.R.S. § 40-283(D) (2001). In

pertinent part, that statute provides:

A board of supervisors may authorize public service
corporations, telecommunications corporations or cable
television systems to construct a line, plant, service
or system within the right-of-way of any road, highway
or easement that is designated for access or public
use by plat or survey of record of a subdivision, or
of unsubdivided land as defined in § 32-2101, provided
that any such authorization or construction pursuant
to such authorization does not impose on the county
the duty of maintaining the road or highway unless the
county accepts the road or highway into the county
maintenance system by appropriate resolution . . . .

¶17 Section 40-283(D) applies to roads “designated for

. . . public use” by a plat or survey of “unsubdivided land.”

But, as the court of appeals correctly noted below, A.R.S. § 11-

806.01(F), which authorizes dedications of roads and highways in

those areas of a county lying outside municipal boundaries, only

10
applies to recorded plats of subdivided land. Pleak, 205 Ariz.

at 473 ¶ 6, 73 P.3d at 604. Section 40-283(D) therefore

implicitly assumes that a plat or survey filed under § 32-2101

covering unsubdivided land outside municipal boundaries can

designate a roadway for public use — and subject the roadway to

use by various utilities — even absent a statutory dedication to

the county. That is precisely what occurred here. Indeed, if

there were no such thing as a common law dedication of the

roadway to public use, it is difficult to see how the

legislature could empower the board to grant utility easements

on such a roadway, the fee to which remains in private hands,

without providing for compensation to the fee owner.

¶18 We therefore conclude that paragraph 3956 did not

abrogate the settled common law allowing private landowners to

dedicate roadway easements for public use. Entrada’s suggestion

that this conclusion is contrary to prior decisions of the court

of appeals and this court, while finding some superficial

support in isolated language from various cases, dissolves under

closer examination. One case upon which Entrada relies, Champie

v. Castle Hot Springs Co., 27 Ariz. 463, 233 P. 1107 (1925), did

not deal at all with the issue of common law dedication, but

rather with whether a “public road” can be created through

prescription. Id. at 466, 233 P. at 1108. In concluding that a

“public road” can be created only by statutory means, this court

11
did not hold that a private landowner could not dedicate a

roadway to public use. Indeed, Champie recognized that the

roads at issue in that case were neither public roads nor

private ways, but rather “fall squarely within the class

described in Territory v. Richardson as ‘without a legal status

either as public highways or private ways.’” Id. at 467, 233 P.

at 1108 (quoting Richardson, 8 Ariz. at 340, 76 P. at 457).

¶19 Burlington Northern & Santa Fe Railway Co. v. Arizona

Corporation Commission, 198 Ariz. 604, 12 P.3d 1208 (App. 2000),

the other case upon which Entrada primarily relies, did not deal

at all with the ability of a private landowner to dedicate a

roadway easement to public use. Rather, the issue in that case

was whether a statute granting the Corporation Commission the

power to regulate railroad crossings of “public roads” included

roads on which there was a history of public use but no

statutory dedication. The court of appeals correctly concluded

that the statutory language was meant to describe only those

roads first identified in Richardson as “public highways.” Id.

at 607-08 ¶¶ 13-21, 12 P.3d at 1211-12. The suggestion in a

footnote in Burlington Northern that public roads may not be

created by “common-law dedication and acceptance,” id. at 608 ¶

18 n.2, 12 P.3d at 1212 n.2, is thus dictum, but in any event

gives no aid to Entrada’s position. “Public roads,” or those

roads in which the fee is owned by governmental entities, cannot

12
be created except by statute, but this does not mean, as we have

demonstrated above, that the common law doctrine allowing a

private landowner to give the public an easement to pass over a

privately owned road has somehow been abrogated under Arizona

law.

B.

¶20 Having concluded that the common law still continues

to allow a private landowner to dedicate a roadway easement to

public use, we must now decide whether there was a valid

dedication in this case.

¶21 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. See Allied

Am. Inv. Co., 65 Ariz. at 287, 179 P.2d at 439; Restatement

(Third) of Prop.: Servitudes § 2.18(1). No particular words,

ceremonies, or form of conveyance is necessary to dedicate land

to public use; anything fully demonstrating the intent of the

donor to dedicate can suffice. Allied Am. Inv. Co., 65 Ariz. at

287, 179 P.2d at 439.

¶22 In this case, given the unequivocal language in the

Record of Survey, Entrada correctly does not dispute the

existence of an offer to dedicate. Rather it claims that the

offer could not be accepted by the general public in the absence

of public use and that the use by the Sycamore Canyon Estates

13
residents did not suffice. In response, the Pleaks argue that

acceptance occurred as a matter of law once lots were sold in

the Entrada subdivision.

¶23 Our cases discussing common law dedications of parks

teach that the sale of lots referencing a recorded plat

containing the dedication constitutes an “immediate and

irrevocable” dedication. County of Yuma v. Leidendeker, 81

Ariz. 208, 213, 303 P.2d 531, 535 (1956) (holding that park was

properly dedicated because the “mere act of surveying land into

lots, streets, and squares by the owner, and the recordation of

such plat, constituted an offer to dedicate and was subject to

revocation by the dedicator until it was accepted, but the mere

act of selling lots with reference to such plat resulted in an

immediate and irrevocable common law dedication of areas

delineated thereon for public purposes”); Evans, 4 Ariz. at 316,

39 P. at 814 (holding that dedication of park “certainly . . .

had been accepted on the part of the public by those persons who

had bought lots in the addition”). There is no dispute in this

case that the lots in Entrada were sold after recordation of the

Survey and that the conveyance documents specifically referred

to the Survey. Therefore, if the rule announced in our prior

cases with respect to parks applies, there has been an effective

acceptance of common law dedication of Kolb Road to public use.

14
¶24 Entrada argues, however, for a different test for

acceptance of common law dedications of roadway easements,

requiring actual use by the general public before the road is

effectively dedicated to public use. That argument finds some

support in the language of several cases. See Drane v. Avery,

72 Ariz. 100, 102, 231 P.2d 444, 445 (1951) (stating that the

recordation of a plat containing a dedication of streets,

coupled with sale of lots, “constitutes a ‘dedication,’ and use

thereof by purchasers of lots and the general public constitutes

sufficient acceptance of the dedication”); Edwards v. Sheets, 66

Ariz. 213, 218, 185 P.2d 1001, 1004 (1947) (“The making and

recordation of the plat coupled with sale of lots therein

constituted the dedication. The use by purchasers of lots and

the general public constituted a sufficient acceptance.”)

(citations omitted).

¶25 However, neither of these cases actually held that use

by the general public — as opposed to mere sale of lots pursuant

to a recorded survey or plat — is a prerequisite to acceptance

of a common law roadway easement dedication. In Drane, the

parties conceded that there was a valid and effective

dedication; and the only dispute before this court was over the

plaintiffs’ standing to sue and whether the suit was barred by

laches. 72 Ariz. at 102-03, 231 P.2d at 445-46. In Edwards the

issue was whether the appellants had obtained title by

15
prescription to a street dedicated as a public road. 66 Ariz.

at 215-18, 185 P.2d at 1002-04. The sufficiency of the

acceptance simply was not an issue in either case.3

¶26 On the merits, we find unpersuasive Entrada’s

invitation to adopt a different rule with regard to common law

dedications of roads than for dedications of parks. As a

preliminary matter, it is not clear, as Entrada argues, that

roadway easements involve a greater financial burden to the

dedicator than other public use easements such as parks. But

more importantly, Entrada’s proposed rule, which would require

proof of actual use by the public before finding an effective

dedication of a common law roadway easement, would inevitably

result in detailed case-by-case inquiries regarding whether and

how the public had used a particular roadway. This would inject

uncertainty into property law, where predictability is

3
As a technical matter, neither of the cited cases
appears to have involved a common law dedication, because in
each case, this court noted that that the fee to the roadway was
held by the county. Drane, 72 Ariz. at 101, 231 P.2d at 445
(noting that the fee to the roadways had passed to the county);
Edwards, 66 Ariz. at 218, 185 P.2d at 1004 (noting that title to
streets at issue had passed to the county); see also Avery v.
Drane, 77 Ariz. 328, 334, 271 P.2d 480, 484 (1954) (noting that
streets at issue in the prior Drane opinion had been dedicated
to the county). However, as we have previously stated, the
statutes governing dedications generally “contemplate the common
law modes of dedication.” Leidendecker, 81 Ariz. at 213, 303
P.2d at 535. Therefore, cases dealing with statutory
dedications can be useful in determining whether the elements of
a common law dedication are present.

16
paramount.4 The better approach is to treat acceptance of common

law dedications of areas for public use consistently, whether

they involve a park, a road, a public plaza, or some other

public space.

¶27 Entrada also suggests that it is unfair to give the

public use of a roadway constructed by a private landowner at

its own expense.5 But this is a dilemma entirely of Entrada’s

own making. If its predecessor did not intend for the public at

large to have access to Kolb Road, or wanted that access limited

to trips within the borders of Entrada, it could have so

provided within its dedication. The landowner could

alternatively have dedicated a roadway easement that did not

extend to the borders of Entrada, thus requiring anyone

attempting to access the road to pass over clearly private

property not subject to the easement. First American, however,

4
For example, in the case at hand, the superior court
concluded that there had been no public use of the road, and
hence no acceptance, because the road was fenced until 1996. It
is clear, however, that members of the public, including those
residing in Sycamore Canyon Estates, regularly used Kolb Road
after it was improved in 1996. If Entrada’s position were
adopted, courts would be required in situations like this to
determine how much public use was required to constitute an
acceptance of a dedication, and precisely when that public use
had to take place.
5
This case presents no issue as to Entrada’s
obligations, if any, with respect to the initial improvement and
subsequent maintenance of the roadway easement, and we express
no opinion on those subjects.

17
dedicated the roadway easement unrestrictedly to “the public,”

and placed the easement so that those in the Sycamore Canyon

Estates development could access the roadway without first

passing over any of Entrada’s private property. If developers

wish to avoid the consequences about which Entrada today

complains, they need only exercise greater care in drafting

dedicatory language regarding the scope or location of roadway

easements in plats or surveys of record.

III.

¶28 We therefore conclude that the court of appeals

correctly held that common law dedications of roadway easements

for public use are viable in Arizona, and that such a dedication

was validly made in this case. We affirm the opinion below, and

remand to the superior court for further proceedings consistent

with this opinion.6

Andrew D. Hurwitz, Justice

6
The Pleaks seek attorneys’ fees pursuant to A.R.S. §
12-1103(B) (2001). This statute, which allows for recovery of
costs in actions to quiet title if the defendant refuses upon
request to execute a quit claim deed to the plaintiff, does not
apply to this case. As noted above, a common law dedication of
a roadway easement to public use leaves fee title to the roadway
in the landowner, and Entrada therefore properly refused in this
case to issue a quit claim deed to the Pleaks.

18
CONCURRING:

_
Charles E. Jones, Chief Justice

______
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

_
John C. Gemmill, Judge*

*
The Honorable Ruth V. McGregor recused herself; pursuant to
Article VI, Section 3, of the Arizona Constitution, the
Honorable John C. Gemmill, Judge of the Court of Appeals,
Division One, was designated to sit in her stead.

19