Kadlec v. Dorsey – 7/2/2010

July 9, 2010

Arizona Supreme Court Holds That the Mere Creation of a Roadway Easement Does Not Raise a Presumption That the Road Has Been Dedicated for Public Use.

Richard Turigliatto owned a parcel of land north of Tucson, which he split into three lots.  A dirt roadway ran across the lots, connecting the public roads on either side.  Turigliatto sold two of the lots, each time retaining an easement across them.  When he sold the third lot, he retained an ownership interest in the road.  The Dorseys eventually purchased one of the two lots subject to the easement.  The Kadlecs and the Howells (“Plaintiffs”) owned nearby property and had used the road.  They filed suit after the Dorseys blocked their access to the road, claiming that they had a prescriptive easement and the right to reasonable use of the roadway across the Dorseys’ property.

On cross-motions for summary judgment, the trial court ruled in favor of the Plaintiffs, but not on the grounds they had asserted.  Instead, the trial court said that Turigliatto’s original deed of the property affected a public dedication of the road because a roadway, “by its very nature invites public use unless the dedicator’s intent was otherwise.”

Division Two of the Court of Appeals affirmed in a divided opinion.  According to the majority, although a public dedication is ordinarily not presumed, dedication is presumed when an easement is a road. 

Judge Brammer dissented, pointing to a long line of Arizona cases running contrary to the majority’s opinion.

The Supreme Court reversed the trial court and the Court of Appeals.  First, the Court noted that a public dedication requires both the owner’s offer to dedicate the land and the general public’s acceptance.  And, according to Arizona case law, dedication cannot be presumed and the presumption of intent to dedicate arises only if that intent is “clearly shown by the owner’s acts and declarations.”  The Court of Appeals was incorrect that that presumption changes merely because an easement is a road.

The Court also noted that under the Restatement (Third) of Property:  Servitudes § 2.5, the burden of proof is on the party asserting public dedication, and that party must come forward with affirmative evidence.  In this case, the Plaintiffs did not identify any facts allowing the inference that Turigliatto had intended a public dedication.  The Court, therefore, reversed the summary judgment in favor of the Plaintiffs and remanded, noting that its opinion did not resolve the Plaintiffs’ claim that they had a prescriptive easement over the Dorseys’ property.

PRACTICE NOTE:  The Dorseys’ requested attorneys’ fees, but because the Plaintiffs’ claim for prescriptive easement rights remained unresolved by the Court’s opinion, it declined to award fees pending further proceedings in the trial court.

Justice Ryan authored the Court’s unanimous opinion.