Lowe v.PimaCounty – 3/13/2008

March 18, 2008

Arizona Court ofAppeals Division Two Holds That Public Acceptance of a Common Law Dedication of Land May Be Established by General Public Use.

This case involves property once owned by the Marks, who signed and recorded a deed of dedication conveying a 60-foot strip of land for public use (the “disputed property”).  The Marks later sold four parcels adjoining the disputed property.  By the time the Lowes purchased one of the four parcels, a previous owner had constructed a fence on the parcel.  Pima county determined that the fence was built on the public right-of-way and cited the Lowes for constructing and maintaining a fence without a permit.  A county enforcement hearing officer entered a judgment in favor of the county.  The Pima County Board of Supervisors, sitting as the Zoning Enforcement Board of appeals, upheld the hearing officer’s decision.  The Lowes appealed to the superior court, (1) alleging that the hearing officer’s decision was contrary to law and (2) seeking a declaratory judgment to quiet title, claiming they had acquired possession of the disputed property by adverse possession.  The superior court granted summary judgment in favor of the county on both counts and this appeal followed.

The ArizonaAppeals Court affirmed the superior court’s grant of partial summary judgment in favor of the county on the Lowes’ equitable estoppel defense, finding that the Lowes failed to meet their burden in proving the elements of the defense.  The Court of appeals reversed the superior court’s grant of summary judgment as to the ownership of the disputed property.  The Court of appeals agreed with the Lowes’ argument that the deed of dedication alone was insufficient to dedicate the disputed property for public use because the deeds of the adjacent parcels did not reference the dedication.  The Court held, however, that public acceptance of a dedication may be established by use.  The Court found that the record reflected questions of fact on whether there had been any general public use of the property described in the deed of dedication, making summary judgment inappropriate.

Judge Pelander authored the opinion; Judges Howard and Brammer concurred.