Arizona Court of Appeals Division Two Holds that When Land is Sold Subject to a Roadway Easement, Courts are to Presume an Intent to Dedicate the Roadway to Public Use.

Between December 1994 and October 1995, Richard Turigliatto conveyed three parcels of real property to three different purchasers.  Each conveyance included an easement for a dirt road running through the parcels.  In 2006, the Dorseys, successors-in-interest to the purchaser of the central parcel, placed barriers on their property at each end of the roadway.  The Kadlecs and the Howells, owners of the neighboring parcels of land, filed separate actions to enforce the easement and recover damages.  At trial, the Kadlecs moved for partial summary judgment on the issue of the Dorseys’ property being subject to a recorded easement, and the Dorseys filed a cross-motion for partial summary judgment on the issue of the Kadlec’s claim of beneficial interest in any such easement.  The trial court granted the Kadlec’s motion and denied the Dorseys’, concluding that the language of the deed did not reflect that the grantor intended to limit the benefit of the easement to any particular parcel or person.  The Dorseys appealed. 

The Arizona Court of Appeals affirmed the trial court’s disposition, holding that the conveyance at issue resulted in a common-law dedication of the roadway to public use.  Although no particular words are necessary to dedicate land to public use, Arizona courts ordinarily require clear and unequivocal evidence that dedication was intended for a general public purpose.  However, because a street is “a public place which all segments of the general public are expected to be able to use,” the Court of Appeals concluded that when land is sold subject to a roadway easement, “the usual burden of proof is reversed and courts are to presume an intent to dedicate the roadway to public use.”  In this case, Turigliatto did nothing to indicate it was his intent to reserve the right to use the easement to only himself and his successors-in-interest.

Judge Vasquez authored the opinion; Judges Eckerstrom concurred.

Judge Brammer dissented, arguing that the caselaw the majority relied upon does not support the proposition that courts may presume a public dedication when land is sold subject to a roadway easement.   According to Judge Brammer, the Court should not have departed from Arizona’s general rule that a public dedication must be clearly shown.