Kadlec v. Dorsey

OPINION

¶ 1 In this action to enforce an easement, appellants Daniel and Sherri Dorsey appeal from the trial court’s grant of partial summary judgment in favor of Paul and Rachel Kadlec and Duane and Brenda Howell (collectively, Kadlec), and its denial of the Dorseys’ motion for partial summary judgment. The Dorseys argue the court erred in finding that an easement for a roadway running across their property had been dedicated to public use. For the reasons stated below, we affirm.

Facts and Procedural Background

¶ 2 We view the facts and reasonable inferences therefrom in the light most favorable to the Dorseys, against whom summary judgment was entered. Lowe v. Pima County, 217 Ariz. 642, ¶ 3, 177 P.3d 1214, 1215 (App. 2008). Between December 1994 and October 1995, Richard Turigliatto conveyed three contiguous parcels of real property to different purchasers in three separate transactions. A dirt road ran through all three parcels, connecting with public roads to the east and west. Turigliatto conveyed the first, easternmost, parcel “subject to the existing road traversing through the property shown as ‘Road Inter-X’” on a specified survey map. He conveyed the second, central, parcel “subject to an undefined easement as shown” in the survey described in the first transaction, showing “Road Inter-X.” The conveyance of the remaining, westernmost, parcel of property included “an easement over” real property described by metes and bounds and corresponding to the description of the roadway on the survey. All three conveyances were subsequently recorded.

¶ 3 The Dorseys are suceessors-in-interest to the purchaser of the second, central parcel. In 2006, they erected a gate across the roadway at the western end of their property and fence posts blocking the middle of the roadway at the other end. In the fall of 2007, the Kadlecs and the Howells, owners of neighboring parcels of land, but not part of the property originally conveyed by Turigliatto, filed separate actions to enforce the easement and recover damages. The two eases were subsequently consolidated by stipulation of the parties.1

¶4 Kadlec 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 Kadlec’s claim of beneficial interest in any such easement. In its written ruling, the trial court cited Hunt v. Richardson, 216 Ariz. 114, 120, 163 P.3d 1064, 1070 (App.2007), for the proposition that “[a]n easement which consists of a roadway by its very nature invites public use unless the dedicator’s intent was otherwise.” And, because the court concluded “the language of the Tur[i]gli[a]tto deed does not reflect that the grantor intended to limit the benefit [of the easement] to any particular parcel or person,” it granted Kadlec’s motion and denied the Dorseys’. This appeal followed.

Discussion

¶ 5 The Dorseys argue that, in the absence of any evidence Turigliatto intended to dedicate the roadway easement to public use, the trial court erred in granting partial summary judgment in favor of Kadlec and denying their motion for partial summary judgment. Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Ariz. R. Civ. P. 56(c). We review de novo *332whether the court erred in applying the law. Lowe, 217 Ariz. 642, ¶ 14, 177 P.3d at 1218.

¶ 6 “Under the common law, an owner of land can dedicate that land to a proper public use---- The effect of a common law dedication is that the public acquires an easement to use the property for the purposes specified, while the fee remains with the dedicator.” Pleak v. Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, ¶ 8, 87 P.3d 831, 834 (2004) (citations omitted). “No particular words, ceremonies, or form of conveyance is necessary to dedicate land to public use; anything fully demonstrating the intent of the donor to dedicate can suffice.” Id. ¶21. But clear and unequivocal evidence “that the alleged dedication ... was for a general public purpose as distinguished from a use by a specific class of the public for a limited purpose” is generally necessary to demonstrate such intent. City of Scottsdale v. Mocho, 8 Ariz.App. 146, 149, 444 P.2d 437, 440 (1968).

¶ 7 A street, however, “by its very nature [is] a public place, wh[ieh] all segments of the general public are expected to be able to use,” id. at 150, 444 P.2d at 441, and “an easement [that] consists of a roadway ... invites public use,” Hunt, 216 Ariz. 114, ¶ 17, 163 P.3d at 1070. Thus, when land is sold subject to a roadway easement the usual burden of proof is reversed and we presume an intent to dedicate the roadway to public use. Id. ¶ 15; see Yuma County v. Leidendeker, 81 Ariz. 208, 213, 303 P.2d 531, 535 (1956); Evans v. Blankenship, 4 Ariz. 307, 315, 39 P. 812, 813 (Ariz.Terr. 1895) (sale of land with reference to map or survey showing streets amounts to immediate and irrevocable public dedication of such streets); 26 C.J.S. Dedication §§ 16, 19 (2009). This presumption may be rebutted by evidence that “the dedicator’s intent was otherwise.” Hunt, 216 Ariz. 114, ¶ 17, 163 P.3d at 1070.

¶ 8 Here, it is undisputed that Turigliatto conveyed the property to the Dorseys’ predecessor-in-interest subject to a roadway easement. It is conceivable, as the Dorseys contend, that Turigliatto could have intended to reserve the right to use the easement to himself and his successors-in-interest to the western parcel, which was the last to be sold.2 However, Turigliatto did nothing to indicate this was his intent, either by expressly providing that he “did not intend for the public at large to have access,” or by configuring the easement such that it “did not extend to the borders of [the property], thus requiring anyone attempting to access the roadway to pass over clearly private property not subject to the easement.” See Pleak, 207 Ariz. 418, ¶27, 87 P.3d at 838. Thus, contrary to the dissent’s assertion, we find nothing in the deeds that “clearly expresses] an intent contrary to a public dedication of the road.” The conveyance, therefore, resulted in a common law dedication of the roadway to public use. See id.; Hunt, 216 Ariz. 114, ¶ 18, 163 P.3d at 1070.

¶ 9 Moreover, although our dissenting colleague correctly notes that nothing in the language of the three original deeds indicates the roadway was then open to public traffic, he is mistaken that there is nothing in the survey to suggest this was the case. The survey clearly shows the road connects two public roads, Pistol Hill Road to the northwest and Mountain Canyon Road to the southeast. Thus, absent any indication to the contrary, it would have been reasonable for the purchasers of the three parcels “to believe that the [road] ... w[ould] be kept open for their use and benefit ... [and] that all persons whatsoever, as occasion may require or invite, may use [it].” See 26 C.J.S. Dedication § 19.3 The trial court did not err *333in granting Kadlec’s motion for partial summary judgment and denying. the Dorseys’ motion.

Disposition

¶ 10 For the reasons stated above, we affirm the trial court’s grant of partial summary judgment in favor of Kadlec and its denial of the Dorseys’ motion for partial summary judgment. Kadlec requests “an award of attorneys fees and costs in defending this appeal pursuant to A.R.S. § 12-331, Rule 21, [Ariz. R. Civ.App. P.], and any other applicable statute or rule.”4 We do not grant a request for attorney fees that fails to “articulate an appropriate statutory basis for that request.” Fid. Nat. Title Co., Inc. v. Town of Marana, 220 Ariz. 247, ¶ 17, 204 P.3d 1096, 1100 (App.2009). But § 12-331 pertains to costs, not attorney fees, and the Dorseys’ request for fees under Rule 21 is insufficient because the rule “does not provide a substantive basis for a fee award.” Bed Mart, Inc. v. Kelley, 202 Ariz. 370, ¶ 24, 45 P.3d 1219, 1224 (App.2002). We therefore deny Kadlec’s request for attorney fees. However, as the prevailing parties, the Kadlecs and the Howells are entitled to costs upon compliance with Rule 21.