Kadlec v. Dorsey

SUPREME COURT OF ARIZONA
En Banc

PAUL KADLEC and RACHEL KADLEC, ) Arizona Supreme Court
husband and wife; DUANE HOWELL ) No. CV-10-0028-PR
and BRENDA HOWELL, husband and )
wife, ) Court of Appeals
) Division Two
Plaintiffs/Appellees, ) No. 2 CA-CV 09-0053
)
v. ) Pima County
) Superior Court
DANIEL DORSEY and SHERRI DORSEY, ) No. C20076040
husband and wife, )
)
Defendants/Appellants. )
) 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 Tucson
By Bradley G. A. Cloud
Attorney for Paul Kadlec and Rachel Kadlec

VERNON E. PELTZ Tucson
By Vernon E. Peltz
Attorney for Duane Howell and Brenda Howell

HINDERAKER & RAUH, P.L.C. Tucson
By Adam Weisman
Attorneys for Daniel Dorsey and Sherri Dorsey

GUST ROSENFELD P.L.C. Phoenix
By Charles W. Wirken
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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 action, alleging, among other things, that they had a

prescriptive easement and seeking a declaratory judgment that

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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. In a cross-motion, the Dorseys

contended that the court should presume the easement was

intended to benefit only the land Turigliatto retained after the

sale of the Dorseys’ parcel.

¶5 The superior court granted summary judgment to the

Kadlecs on different grounds. The court ruled that because the

original deed referred to the roadway and made no statement

limiting its use to a particular beneficiary, the deed had

effected a public dedication. The court found that “[a]n

easement which consists of a roadway[,] by its very 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 is a road, dedication to the public is

presumed. Id. at ¶ 7. In dissent, Judge Brammer argued that

such a presumption runs contrary to a long line of Arizona

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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[] demonstrat[ion] [of] the intent of the

donor to dedicate.” 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,
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1013 (1951). Rather, “[t]he burden of proof to establish a

dedication is on the party asserting it.” Id.

¶9 The court of appeals distinguished this settled case

law because the easement in question was a road. Kadlec, 223

Ariz. at ___ ¶ 7, 223 P.3d at 676. 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
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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.” 207 Ariz. at 424 ¶ 23, 87 P.3d

831, 837 (emphasis added). 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.
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 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, 1008-

09 (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 foregoing reasons, we vacate the court of

appeals’ decision and reverse the superior court’s decision
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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.
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