Tuesday, July 13, 2010

Common Law Easements Clarified

Just before the 4th of July (07-02), the Arizona Supreme Court reminded us that occasionally, private rights in property are fundamental and should be treated as such. (Kelo decision notwithstanding) In the process, it tidied up a bit of a mess that I blogged about in early April. You’ll recall that Arizona’s Court of Appeals in Kadlec/Howell v. Dorsey held that Dorsey had ownership of a parcel through which a right of way had been dedicated to the public by a prior owner (of the Dorsey tract) through a deed. The deed was quietly ambiguous; there was no statement in the deed that the grantor intended to dedicate a dirt road to the public, nor any statement that the grantor of the parcels “hosting” the road intended to limit the easement’s benefit to any particular parcel or person. I wrote in that earlier post that 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; and, since there was no clear expression of an intent “contrary to a public dedication,” the deeds gave rise to a presumption of a dedication that the grantor failed to refute. The Supreme Court disagreed; it said the effect of the Court of Appeals’ decision would be to cause any parcel conveyed with a roadway easement in place to convert the easement to a publicly-dedicated road. The Supreme Court ruled that a court must look to the affirmative actions of the grantor to see if there is a basis for finding intent by the grantor to make a public dedication. The Supreme Court also held that the burden of proof of dedication must remain upon the party asserting the fact of dedication, in keeping with the Restatement (Third) of Property – Servitudes. There is no presumption of intention to dedicate, in other words, arising merely from the fact that the easement is for vehicular transportation. Last week, the appellate court system in Arizona worked the way it should, in clarifying basic principles of property rights.


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