On April 6, 2010, the Arizona Supreme Court meets to decide what matters to accept review of, responding to petitions for review; one in particular (CV-10-0028-PR) could stand a little review. In a divided panel circumstance, the Court of Appeals in Kadlec/Howell v. Dorsey ruled that Dorsey had ownership of a parcel through which an easement had been dedicated to the public by a prior owner through a deed. There was no statement in the deed that the grantor intended to dedicate a dirt road to the public; however, there was no statement in the deed that the grantor of the parcels hosting the road intended to limit the easement’s benefit to any particular parcel or person. The general tenor in Arizona law when an alienation of property is not explicit is that the court will look to the intention of the party or parties that is (are) making the grant of a benefit or title.
The Court of Appeals majority opinion stated that when land is sold subject to a roadway easement, there is a presumption of an intention to dedicate the roadway to public use. Here, the dirt road went across (west to east) Dorsey’s land to connect two improved streets. There were a total of three owners (the named parties in the lawsuit) that owned lots across which the road traversed. The majority said that there was no clear expression of an intent “contrary to a public dedication”; therefore, the deeds (that referred to a survey, which says nothing about a dedication of the road) resulted in a common law dedication to public use. One assumes that the general public does not use a dirt road at every opportunity. So it’s hard to imagine the importance of such a finding. In the words of the philosopher Randy Jackson (Idol fame), “I just don’t get it, dog.”
Generally, presumptions make more sense in few areas of law that are not related to contract arrangements. If a presumption was merited in the instance of common law dedications, it would be where there is a lengthy and continuous use by the general public of the road. Here, two sets of neighbors used the road for about 11 years before the Dorseys tried to block it off from the neighbors’ use. That just seems too small a period of time and number of users to create a precedent of statewide significance by creating a legal doctrine of “presumptive” dedication. As the dissent says at the end of the opinion, proof of facts “necessary to constitute dedication must be clear, satisfactory and unequivocal.” Amen. If the opinion of the Court of Appeals isn’t to be reversed, the opinion should be de-published, thereby applying only to the parties to the lawsuit and eliminating the opinion as precedent. If there’s merit in establishing a legal presumption of common law dedication, this is not the set of facts under which to do that.