Did you intend to allow the general public to use the easement on your property? Even if you did not, that may be the result under a recent Arizona Court of Appeals decision. In Kadlec v. Dorsey, 572 Ariz. Adv. Rep. 18 (App. 2009), Division Two of the Court of Appeals held that an easement had been dedicated to public use, despite the absence of any language dedicating the easement to the public in the document creating the easement.
Facts of Kadlec
In Kadlec, neighboring landowners filed an action against Daniel and Sherri Dorsey to enforce an easement burdening the Dorseys’ property after the Dorseys erected a gate across the easement. A deed in the Dorseys’ chain of title stated that the conveyance was “subject to an undefined easement as shown” on the 1994 survey map. The survey map was attached to and recorded with the deed and described the road as an “Existing Graded Road.” No language in the deed or the survey map suggested the road was open to the public.
A Roadway Easement is Presumed Dedicated to the Public
The Court acknowledged that generally, a party asserting that an easement has been dedicated to the public must provide clear and unequivocal evidence that the easement was dedicated for general public use. But the Court held that a “roadway” easement is different. The Court found that a street by its very nature is a public place that the general public is expected to be able to use, and that an easement that consists of a roadway invites public use. The Court concluded that when property is sold 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.
Finding it undisputed that the conveyance to the Dorseys’ predecessor was subject to a roadway easement, the Court went on to hold that the conveyance resulted in a dedication of the roadway to the public, reasoning that the conveyor did nothing to indicate that he did not intend for the public at large to have access. The deed did not contain express language stating that the easement was not dedicated to the public, nor was the easement configured so that it did not extend to the borders of the property so that anyone accessing the easement would have to pass over private property not subject to the easement.
Judge Brammer dissented, believing that the majority’s holding is inconsistent with Arizona’s jurisprudence requiring that the intent to dedicate property for public use be clear and unequivocal. “No Arizona authority holds, as does the majority here, that the mere fact that a road easement is granted or reserved in a recorded conveyance raises a legal presumption the easement has been dedicated for public use.”
What This Means
The Dorseys’ attorney has filed a petition for review with the Arizona Supreme Court. Unless and until the Arizona Supreme Court reverses this decision, it may be presumed that you intended to dedicate your roadway easement to the public. Property owners should be aware of such unintended consequences. Where there is no intent to dedicate the easement to the public, the easement document should expressly say so.
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. We served as counsel in Pleak v. Entrada Property Owners’ Association, one of the leading Arizona cases on public dedication of easements, and recently assisted a property owner in confirming the validity of its access to 40,000+ acres of land.
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.
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