In February 2010, Lewis and Roca issued a Client Alert discussing the Arizona Court of Appeals' decision Kadlec v. Dorsey, 223 Ariz. 330, 223 P.3d 674 (App. 2009). In Kadlec, neighboring landowners filed an action against Daniel and Sherri Dorsey to enforce an easement burdening the Dorseys’ property after the Dorseys placed a gate across the easement. A deed in the Dorseys’ chain of title stated that the property was “subject to an undefined easement as shown” on a 1994 survey map. The survey map was attached to and recorded with the deed and described the easement as an “Existing Graded Road.” No language in the deed or the survey map suggested the road was open to the public.
Court of Appeals Holding
While recognizing that public dedication of an easement is ordinarily not presumed, the court of appeals focused on the fact that the easement was a roadway and held that when property is subject to a roadway easement, the usual burden of proof placed on the party asserting public dedication is reversed, and an intent to dedicate the roadway easement to the public is presumed.
Arizona Supreme Court Holding
The Arizona Supreme Court vacated the court of appeals' decision and reiterated Arizona law regarding public dedication of private property. A dedication of private land to the public has two requirements: an offer by the landowner to dedicate and an acceptance by the public. While no magic words are required, evidence of public dedication must be clear, satisfactory and unequivocal. Dedication is not presumed and instead, the intent to dedicate must be clearly shown by the landowner’s acts. The burden of proof to establish public dedication is on the party asserting it.
What This Means
The supreme court decision confirmed that in Arizona, the mere creation of a roadway easement does not raise the presumption that the road has been dedicated for public use. Courts will continue to look to the affirmative actions of the grantor to determine whether the land has been dedicated to the public. While this decision gives landowners some comfort, prudent landowners should nevertheless clearly state in their easement documents that there is no intent to dedicate the easement to the public.
We Can Help
Lewis and Roca's real estate lawyers regularly represent property owners in connection with easement and access issues. Our transactional lawyers can assist with appropriately documenting easements and our litigation lawyers can assist with easement disputes. Lewis and Roca served as counsel in Pleak v. Entrada Property Owners’ Association, cited by the supreme court in Kadlec and one of the leading Arizona cases on public dedication of easements.
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This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.