City of Cabot v. Brians

• Decision Date: 09 November 2005
• Docket Number: No. CA 05-256.,CA 05-256.
• Citation: 216 S.W.3d 627
• Parties: CITY OF CABOT, Appellant v. Robert and Louise BRIANS, Appellees.
• Court: Arkansas Court of Appeals

216 S.W.3d 627

CITY OF CABOT, Appellant v. Robert and Louise BRIANS, Appellees.

No. CA 05-256.

Court of Appeals of Arkansas, Divisions II, III.

November 9, 2005.

Kenneth Williams, Cabot City Attorney, Cabot, and Williams & Anderson P.L.C., by: David F. Menz and Kelly S. Terry, Little Rock, for appellant.

Larry K. Cook, Cabot, for appellees.

JOHN B. ROBBINS, Judge.

Appellant, the City of Cabot, appeals from an order that quieted title to a 60-foot-by-122-foot parcel of land in appellees, Robert and Louise Brians. The City argued that the parcel had been dedicated to it in a plat and bill of assurance approved by the City and filed by the developer in 1994. We agree and reverse and remand.

The parcel at issue is located in the Crestwood Subdivision, Phase II, in Cabot, Arkansas. The subdivision was developed by Blount Farms & Investments Corporation and consists of thirty-five lots and three named streets. Easement strips of six feet or twelve feet in width are located on lots throughout the subdivision.

The northeast corner of the subdivision is occupied by Lot 56, which is situated on a cul-de-sac at the intersection of two streets. Lot 55, which was purchased by appellees in 1995, is south of Lot 56 on the other side of the cul-de-sac. Lying between the two lots is a 60-foot-by-122-foot parcel that the developer's plat refers to as a "60' Access Easement." A general note on the plat states that this easement is "reserved" for a future right-of-way.

In December 2002, appellees sued the City and the developer, Blount Farms, claiming that, after they purchased their lot in 1995, they began using the parcel as their own. They asked that title to the parcel be quieted in them by virtue of seven years of open, visible, notorious, distinct, exclusive, and hostile possession. Blount Farms was served with process but did not answer the complaint. As a consequence, a default judgment was entered against Blount, stating that it had no interest in the parcel. The City responded, however, and claimed that the parcel had been dedicated to it. Thereafter, a bench trial was held to determine if the City had an interest in the parcel. As the trial court recognized, if the City did have an interest, appellees could not claim the parcel by adverse possession because Ark. Code Ann. § 22-1-204 (Repl.2004) provides:

No title or right of possession to realty by an incorporated town, city of the second class, city of the first class, school district, county, or the state may be defeated in any action or proceeding because of adverse possession.

Following the presentation of the evidence, the trial court found that the developer had reserved the parcel for itself, and, thus, the City had no interest in it. Title was therefore quieted in appellees, and the City now appeals.

Quiet title actions have traditionally been reviewed de novo as equity actions. See, e.g., White River Levee Dist. v. Reidhar, 76 Ark.App. 225, 61 S.W.3d 235 (2001). However, we will not reverse the trial judge's findings in such actions unless the findings are clearly erroneous. See id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.

The City argues first that the developer's plat and bill of assurance unambiguously dedicated the parcel to the City. Alternatively, the City argues that, if the dedicatory instruments were ambiguous, the dedication was borne out by surrounding circumstances. We agree with both of these arguments.

As previously stated, the subdivision plat designated the 60-foot-by-122-foot parcel as an "access easement" and noted that this easement was reserved for a future right-of-way. The bill of assurance, which was filed by the developer prior to appellees' purchasing their lot, contained the following pertinent language:

There are strips of ground shown on said plat and marked "Easements" reserved for the use of public utilities and or for drainage purposes, subject at all times to the proper authorities and to the easement herein reserved. Owners of the lots shall take title subject to the right of public utilities and the public. The filing of this Bill of Assurance and plat for the record in the office of the Circuit Clerk & Recorder of Lonoke County, Arkansas shall be a valid and complete delivery and dedication of the streets and easements shown on the said plat.

(Emphasis added.) When the plat and bill of assurance are read together, the City avers, they unambiguously dedicate the parcel in question to the City.

A dedication has been defined as the donation of land or the creation of an easement for public use. Black's Law Dictionary 442 (8th ed. 2004). A dedication may be accomplished by express written instrument, see 26 C.J.S. Dedication § 15 (2001), or often by maps or plats. See 26 C.J.S. Dedication § 17 (2001); 23 AM.JUR. 2D Dedication § 26 (2d ed. 2002). Plats or instruments by which dedications are made are construed as any other writing to ascertain and give effect to the intention of the dedicator. See generally 26 C.J.S. Dedication §§ 66, 67 (2001). Plats should be construed fairly and reasonably, and unambiguous language should be given its manifest meaning. 26 C.J.S. Dedication § 67; see also Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997) (construing a bill of assurance primarily by reference to the plain language of the document).

The plain language of the bill of assurance in this case provided that its filing, along with the plat, operated as a "valid and complete delivery and dedication of the streets and easements" shown on the plat. (Emphasis added.) The 60-foot-by-122-foot parcel is shown on the plat as an easement. Thus, upon the filing of the bill and the plat in 1994, the easements on the plat, including the parcel in question, were dedicated.

Appellees argue, however, that the dedicated easements referred to in the bill of assurance are the utility easements. However, this contention ignores the bill's plain language dedicating the "easements" shown on the plat without regard to whether they are utility easements. Appellees also argue that the parcel was not dedicated because it was not identified as a street. However, under circumstances like those in this case, it is unnecessary that the areas to be dedicated be marked as streets; the dedication is sufficient if it appears, from a consideration of the plat as a whole, with reference to the surrounding circumstances, that the spaces were intended to be devoted to public use. City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993).

The evidence at trial offered a clear indication that the parcel was intended for public use. First, the bill itself states that the owners of the subdivision lots take title subject to the right of public utilities "and the public." (Emphasis added.) Second, at trial, the City called witnesses John Ryan Benefield and James Von Tungeln, who testified that the City and the developer obviously intended that the parcel be dedicated to the City for use as a future street or passageway. Benefield, a former city engineer, said that, although he was not employed with the City when the subdivision plat was approved in 1994, his employment with the City in 2003 and 2004 required him to assist the City Planning Commission with subdivision approval, and he was familiar with the Crestwood development. According to him, the plat's reference to the parcel as a 60-foot access easement meant that "in the future, this area would be a city street used to access property to the east of this subdivision." He observed that, although the area to the east of the subdivision was undeveloped, the City normally took note of whether there was adjacent, undeveloped property when viewing a subdivision plat and considered, among other things, whether there was access to unplatted pieces of land and whether there were multiple outlets to existing streets, which were important for utility service, emergency vehicles, and future subdivision. As an example, Benefield explained that, in the development of the first phase of Crestwood Estates, a piece of land, or "stub street" was left so that future development could be accessed and, in fact, under current regulations, such a stub street was required. Benefield stated that reserving an access area as a future right-of-way would allow it to be developed later as a street if needed. As he noted, the dimensions of the access easement were consistent with the City's streets.

Von Tungeln, an urban planning expert, testified that he had served as a consultant for the City in the past. Although he was not personally involved in the plat approval for this subdivision, he was familiar with the development. According to him, the 60-foot access easement mentioned on the plat was a case of the City's pursuing a policy of having multiple entrances and exits to subdivisions where possible. Specifically, he testified:

[I]t's my opinion that they at that time wanted to leave open the possibility of connecting this subdivision with future development, saw no reason to actually build a street and pave it at that point and have the pavement sitting there, but instead, chose to have an access easement platted so that in the future, if that became a requirement and they did in fact connect this subdivision with other subdivisions, that the right-of-way would be there.

Von Tungeln stated that this was "done quite often." He also interpreted the plat's statement that the easement was reserved for a future right-of-way to mean that the Planning Commission intended the possibility that a connecting street be left open.

The above testimony, in conjunction with the language in the plat and bill of assurance, reveal that the parcel was intended for public use. Benefield and Von Tungeln offered virtually undisputed testimony that the developer and the City must have considered the...