Friday, April 16, 2010


Recently a friend sent me an email with a video in it that showed the streets of San Francisco when cars had just arrived; people had to run to get out of the way! In those days, there were few "watch your step" signs, and there were almost no laws that protected people from doing stupid things.

And it got me to thinking: Seems like, in those days, people had to have more responsibility for themselves and their actions; they had to be more aware of their surroundings, because the world was, perhaps, a more dangerous place.

I'm all for the world being a safer place; and I am also disturbed at the trend (which is now perhaps changing) that has led to people not taking responsibility for what they do. The woman spilling hot coffee in her lap is just one example of things we see every day. And the courts and insurance companies, to a great extent, have rewarded their behavior. Because the insurance companies want to subrogate claims (sue whoever is responsible on your behalf), and because there is often a law firm that will take a case on a contingent basis.

Sure, it is good to put up a sign that says "Do not stand too close to the edge" at the Grand Canyon, but when there is a law that requires that the switch for the garbage disposal be positioned such that you can't turn it on if your hand is in the drain...

I like to think about what sort of things happen if taken to the extreme. It is the sort of argument about the camel getting his nose under the tent. Or slowly warming a frog in water -- you've heard these. Do something gradually, no one will notice. Do it quickly, everyone objects. Eventually, if the trend continues, no one will have any responsibility for anything; the government will take care of us. (See how that's been working...)

The current administration seems to want to continue to expand the role of government in our lives; to continue the trend of reducing personal responsibility. Fortunately it seems like the pendulum is swinging back the other way.

Just for a moment, think about what different decisions you would make in your life, if there was no insurance. Get in an accident, and lacking any criminal elements, you pay for your problems, they pay for theirs; no lawsuits. No tort claims. I bet we would all be MUCH safer drivers! We might all think twice about when to change lanes, whether we should drive when we are tired, etc.

Come to think of it, maybe we should do that anyway!


Saturday, April 3, 2010

Common Law Easements of Troubling Dimensions

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.