Pleak v. ENTRADA PROPERTY OWNERS'ASS'N

• Decision Date: 20 April 2004
• Docket Number: No. CV-03-0310-PR.,CV-03-0310-PR.
• Citation: 87 P.3d 831,207 Ariz. 418
• Parties: Robin R. PLEAK and Audrey Pleak, husband and wife; and Michael T. Shurtliff and Ann Shurtliff, husband and wife, Plaintiffs/Appellants, v. ENTRADA PROPERTY OWNERS' ASSOCIATION, an Arizona non-profit corporation; Palo Seco Corporation, an Arizona corporation; Betty C. Britton, an unmarried woman; Juan A. Somoza, an unmarried man; Tres Piedras, L.L.C., an Arizona limited liability corporation; Steve V. Thill, an unmarried man; Cindy D. Begner, an unmarried woman; Edna C. Stack, an unmarried woman; Caroline Dodge, a married woman; Mary R. Derrick, an unmarried woman; Fleet Mortgage Corp., a South Carolina corporation; Detlef D. Lange and Sally F. Lange, husband and wife; BGR, L.L.C., an Arizona limited liability company; and Morton R. Rosen, a widower, Defendants/Appellees.
• Court: Arizona Supreme Court

87 P.3d 831

207 Ariz. 418

Robin R. PLEAK and Audrey Pleak, husband and wife; and Michael T. Shurtliff and Ann Shurtliff, husband and wife, Plaintiffs/Appellants, v. ENTRADA PROPERTY OWNERS' ASSOCIATION, an Arizona non-profit corporation; Palo Seco Corporation, an Arizona corporation; Betty C. Britton, an unmarried woman; Juan A. Somoza, an unmarried man; Tres Piedras, L.L.C., an Arizona limited liability corporation; Steve V. Thill, an unmarried man; Cindy D. Begner, an unmarried woman; Edna C. Stack, an unmarried woman; Caroline Dodge, a married woman; Mary R. Derrick, an unmarried woman; Fleet Mortgage Corp., a South Carolina corporation; Detlef D. Lange and Sally F. Lange, husband and wife; BGR, L.L.C., an Arizona limited liability company; and Morton R. Rosen, a widower, Defendants/Appellees.

No. CV-03-0310-PR.

Supreme Court of Arizona, En Banc.

April 20, 2004.

Gust Rosenfeld, P.L.C., by Charles W. Wirken, Phoenix, Attorney for Plaintiffs-Appellants.

Law Office of Mark Rubin, P.L.C., by Mark Rubin, Lewis and Roca, L.L.P., by John N. Iurino, John Hinderaker, Erin O. Simpson, Tucson, Attorneys for Defendants-Appellees.

Mariscal, Weeks, McIntyre & Friedlander, P.A., by Gary L. Birnbaum, Michael S. Rubin, David J. Ouimette, Phoenix, Attorneys for Amicus Curiae, Land Title Association of Arizona.

Matthew J. Smith, Mohave County Attorney, by John K. White, Deputy County Attorney, Kingman, Attorneys for Amicus Curiae, Mohave County.

OPINION

HURWITZ, Justice.

¶ 1 The central issue in this case is whether Arizona continues to recognize common law dedications of roadway easements for public use. We conclude that such common law dedications remain viable, and that the dedication at issue in this case meets the requirements of the common law.

I.

¶ 2 On June 3, 1988, First American Title Insurance Company of Arizona recorded a "Record of Survey" for the Entrada development in rural Pima County. The survey covered three adjacent sections of real property and divided each section into sixteen forty-acre parcels. The survey depicts an easement along the eastern seventy-five foot edge of Entrada. The survey also contains a "Grant of Roadway and Utility Easement" stating that First American, "the owner of record of the property included in the easements shown hereon[,] hereby dedicate[s] these easements to the public for the use as such."

¶ 3 The developer of Entrada then sold the lots created by the survey; each conveyance document expressly referred to the survey. In 1988, the easement specified in the survey was a jeep trail used only by a rancher who had been grazing cattle on the property, and was impassable by conventional motor vehicles. Access to the road was barred by a barbed wire fence. In 1996, however, the Entrada Property Owners' Association improved the road. In 1997, Pima County named the road Kolb Road, but in doing so expressly disavowed any responsibility for the road, and has never performed any improvement or maintenance on it.

¶ 4 Sycamore Canyon Estates is a development abutting the eastern edge of Entrada. After Kolb Road was improved, the developer of Sycamore Canyon cut the fence to gain access to the improved road. Sycamore Canyon property owners, including appellees Robin R. and Audrey Pleak, thereafter used the road to access their property.

¶ 5 The Pleaks and the other appellees (collectively, the "Pleaks") subsequently filed a three-count complaint, requesting the superior court to declare that First American had dedicated the Kolb Road easement to the public, quiet title in the roadway "in trust for the public," and permanently enjoin First American's successors in interest (collectively, "Entrada") from interfering with the use of the road. The Pleaks argued that the dedication had occurred both statutorily and pursuant to common law. Entrada counterclaimed, asking the superior court to quiet title in the easement "as a private road" and to enjoin the Pleaks from using it.

¶ 6 The superior court granted partial summary judgment to Entrada. The court first rejected the argument that Kolb Road had been statutorily dedicated to public use pursuant to Arizona Revised Statutes ("A.R.S.") § 9-254 (2001) or A.R.S. § 11-806.01 (2001), finding that neither statute applied to the Entrada development. The superior court also found no common law dedication, holding that although First American had intended to dedicate the roadway to the public, the dedication had never been properly accepted. The court of appeals reversed. Pleak v. Entrada Prop. Owners' Ass'n, 205 Ariz. 471, 73 P.3d 602 (App.2003). The court of appeals agreed with the superior court as to the absence of a statutory dedication, but found a valid common law dedication. Id. at 478 ¶¶ 23-24, 73 P.3d at 609.

¶ 7 Entrada petitioned for review, claiming that common law dedications of roadway easements for public use are no longer recognized in Arizona. Entrada's petition also argued that, even if common law dedications remain viable, the dedication in this case is ineffective because it has not been validly accepted. We granted review because these issues are of statewide importance. We exercise jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution, A.R.S. § 12-120.24 (2003), and Arizona Rule of Civil Appellate Procedure 23(c)(3).

II.

A.

¶ 8 Under the common law, an owner of land can dedicate that land to a proper public use. Restatement (Third) of Prop.: Servitudes § 2.18(1) (2000). Our cases have long recognized and applied this common law doctrine. E.g., Evans v. Blankenship, 4 Ariz. 307, 39 P. 812 (1895) (upholding common law dedication of a public park). 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. Allied Am. Inv. Co. v. Pettit, 65 Ariz. 283, 290, 179 P.2d 437, 441 (1947); Moeur v. City of Tempe, 3 Ariz.App. 196, 199, 412 P.2d 878, 881 (1966).

¶ 9 It was settled long ago in this state that the doctrine of common law dedication applies to the dedication of roadway easements for public use. Thorpe v. Clanton, 10 Ariz. 94, 99-100, 85 P. 1061, 1062 (1906). Entrada argues, however, that the common law was abrogated in the 1901 Territorial Code, and that since 1901, dedications of roadway easements for public use can only be made pursuant to a specific authorizing statute.¹

¶ 10 The linchpin of Entrada's argument is paragraph 3956 of the 1901 Code, which provides:

All roads and highways in the territory of Arizona which have been located as public highways by order of the board of supervisors, and all roads in public use which have been recorded as public highways, or which may be recorded by authority of the board of supervisors, from and after the passage of this title, are hereby declared public highways; and all roads in the territory of Arizona now in public use, which do not come within the foregoing provisions of this section, are hereby declared vacated....

Ariz. Civ.Code ¶ 3956 (1901). Entrada reads this statute as providing that, from 1901 onward, there are only two categories of roads—public and private—and the former can only be created pursuant to statute.

¶ 11 However, the central historical premise of Entrada's argument—that the 1901 Code abrogated the existing common law—is flawed. Paragraph 3956 of the 1901 Code was simply a recodification of a provision first appearing, in substantially the same form, in the 1871 Code, Ariz. Civ.Code § 1 at 550 (1871), and subsequently recodified in the 1887 Code. Ariz. Civ.Code ¶ 2736 (1887). Therefore, if the 1901 Code were intended to abrogate the common law with respect to dedications of roadway easements for public use, the same would necessarily have been true of the 1871 and 1887 Codes. Yet, in Thorpe, this court recognized the validity of an 1888 common law dedication of a roadway easement to public use, a result clearly precluded under Entrada's reading of paragraph 3956. See Thorpe, 10 Ariz. at 99-100, 85 P. at 1062.

¶ 12 More importantly, Entrada's argument that paragraph 3956 abrogated the common law with respect to the dedication of roadway easements for public use fails as a matter of statutory construction. Our statutes have long provided that the common law, except when "repugnant to or inconsistent with the constitution of the United States or the constitution or laws of this state... is adopted and shall be the rule of decision in all courts of this state." 1907 Ariz. Sess. Laws, ch. 10, § 8, codified at A.R.S. § 1-201 (2002). Therefore, if the common law is to be changed or abrogated by statute, the legislature must do so expressly or by necessary implication. See Wyatt v. Wehmueller, 167 Ariz. 281, 284, 806 P.2d 870, 873 (1991)

(citing S.H. Kress & Co. v. Superior Court, 66 Ariz. 67, 73, 182 P.2d 931, 935 (1947)). Absent a clear manifestation of legislative intent to abrogate the common law, we interpret statutes with "every intendment in favor of consistency with the common law." In re Thelen's Estate, 9 Ariz.App. 157, 160-61, 450 P.2d 123, 126-27 (1969).

¶ 13 Paragraph 3956 does not manifest a clear intention by the legislature to abrogate the common law of roadway dedication to public use. Its first clause merely denominates certain roads as "public highways." As this court recognized in 1904, the phrase "public highways" in paragraph 3956 was meant simply to describe those roads "as come within the express provisions of the statutes declaring them to be such." Territory v. Richardson, 8 Ariz. 336, 339, 76 P. 456, 457 (1904); cf. State v. Cardon, 112 Ariz. 548, 550, 544 P.2d 657, 659 (1976)

(noting that "public highways" are those established by various statutory means). Nothing in this portion of paragraph 3956 suggests that landowners are somehow thereby prevented from dedicating their privately owned land to public use. Cf. Moeur, 3 Ariz.App. at 199,

412 P.2d at 881 (contrasting a valid...