Common Law Road Dedication in Arizona

  • “Whether by common law or by statute, a dedication, once perfected, is irrevocable.” City of Chandler v. Arizona Dept. of Transp., 224 Ariz. 400, 403, ¶ 9, 231 P.3d 932, 935 (Ct. App.  2010).  “Where a dedication has been made, whether under a statute or at common law, and accepted by the public it becomes irrevocable.”  Thorpe v. Clanton, 10 Ariz. 94, 100, 85 P. 1061, 1062 (1906).  “It is the general rule that abandonment does not result from mere nonuser after a dedication is complete.  Yuma County v. Leidendeker, 81 Ariz. 208, 214, 303 P.2d 531, 536 (1956).

As of 2015, the following summarizes Arizona cases on common law dedication of a road.

Burlington Northern & Santa Fe Railway Co. v. Arizona Corporation Commission, 198 Ariz. 604, 12 P.3d 1208 (Ct. App.2000).

          According to the Arizona Court of Appeals, following statehood, Arizona did not recognize any common law definition of public road or public highway: “Arizona courts have repeatedly interpreted Arizona laws as providing that public roads and highways can only be established as provided by statute and not by other means such as prescriptive use.” Burlington Northern & Santa Fe Railway v. Arizona Corporation Commission, 198 Ariz. 604, 608, 12 P.3d 1208, 1212 (Ct. App. 2000).  In Pleak, however (see below), the foregoing was distinguished as referring only to roads created pursuant to statutory authority where the fee was owned by a governmental entity and the statement was otherwise characterized as dicta.  “‘Public roads,’ or those roads in which the fee is owned by governmental entities, cannot be created except by statute, but this does not mean, as we have demonstrated above, that the common law doctrine allowing a private landowner to give the public an easement to pass over a privately owned road has somehow been abrogated under Arizona law.”  Pleak v. Entrada Property Owners’ Ass’n, 207 Ariz. 418, 423, ¶ 19, 87 P.3d 831, 836 (2004).


Pleak v. Entrada Property Owners’ Ass’n, 205 Ariz. 471, 73 P.3d (Ct. App. 2003), aff’d, 216 Ariz. 114, 163 P.3d 1064 (2007).

          While fee title was held by First American Title, it recorded a “Record of Survey” for certain land in Pima County that became known as the Entrada development.  The survey depicted an easement along the eastern 75’ edge and included a “Grant of Roadway and Utility Easement” within the document that “dedicate[d] such easements to the public for the use as such.”  205 Ariz. at 473,¶ 2, 73 P.3d at 604.  When the survey was recorded, that easement area was a jeep trail, impassable by conventional automobile.  The Entrada developer sold the lots with each conveyance document specifically referring to that recorded survey.  Several years later, the Entrada Property Owners’ Association improved the road, then identified as part of Kolb Road (but with the county disavowing any responsibility to maintain it).  Adjacent to Entrada was another development called Sycamore.  The wire fence separating the developments was cut and Sycamore property owners began using that Kolb Road easement for access.  Neither opinion provides the facts that prompted it, but the Pleaks (owners in Sycamore) filed a lawsuit to declare that the easement on the survey dedicated that portion of Kolb Road to the public.

The trial court denied the Pleaks’ motion for summary judgment and granted the cross-motion of Entrada that there was neither a statutory nor a common law dedication of the road.  Id. at 473, ¶ 4, 73 P.3d at 604.  “The court of appeals agreed with the superior court as to the absence of a statutory dedication, but found a valid common law dedication.”  207 Ariz. at 421, ¶ 6, 87 P.3d at 834.  The supreme court affirmed the court of appeals that there was a valid common law dedication.  Id. at 425, ¶ 28, 87 P.3d at 838.

According to the court of appeals, a common law “[d]edication is the intentional appropriation of land by the owner to some proper public use.”  205 Ariz. at 474,¶ 10, 73 P.3d at 605.  “An intent to dedicate must be clearly shown and the burden of proof of establishing the dedication is on the one asserting it.”  Id.  The court of appeals agreed with the Pleaks that there is “a class of roads which are public, in the sense that the public has a right to use them, but which the government has not yet committed to maintain.  These latter roads may be established by common law . . . but [that law] impose[s] no burden on anyone to maintain [them].”  Id. at 475, ¶ 15,73 P.3d at 606.  “Indeed, the United States Supreme Court noted long before Evans that dedication of property to public use is a ‘well-established principle of the common law.’ Mayor of New Orleans v. United States, 35 U.S. (10 Pet.) 662, 712 (1836). . . . Thus, under the common law, it is unnecessary that the title of property dedicated to the public vest in a governing body for its use to actually be dedicated to the public.”  Id. at 476, ¶ 17, 73 P.3d at 607.

The case was accepted for review by the supreme court on the question of whether common law dedications of roadway easements were still recognized in Arizona  or were abrogated by adoption of the 1901 Territorial Code.  The supreme court held that common law dedications continued to be recognized.

“An effective dedication of private land to a public use has two general components – an offer by the owner of land to dedicate and acceptance by the general public. . . . No particular words, ceremonies, or form of conveyance is necessary to dedicate land to the public use; anything fully demonstrating the intent of the donor to dedicate can suffice.”  207 Ariz. at 423-24, ¶21, 87 P.3d at 836-37.  The Arizona Supreme Court noted how its decision in County of Yuma v. Leidendeker, 81 Ariz. 208, 213, 303 P.2d 531, 535 (1956), had held as to dedication for a park:  “Our cases discussing common law dedications of parks teach that the sale of lots referencing a recorded plat containing the dedication constitutes an ‘immediate and irrevocable’ dedication.”  207 Ariz. at 424, ¶ 23, 87 P.3d at 837.  Then the court characterized two cases dealing with roadway easements (Drane v. Avery, 72 Ariz. 100, 231 P.2d 444 (1951) and Edwards v. Sheets, 66 Ariz. 213, 185 P.2d 1001 (1947)) as not requiring actual use by the public as a condition of effective dedication.

          However, neither of these cases actually held that use by the general public – as opposed to mere sale of lots pursuant to a recorded survey or plat – is a prerequisite to acceptance of a common law roadway easement dedication.  . . .

. . . Entrada’s proposed rule, which would require proof of actual use by the public before finding an effective dedication of a common law roadway easement, would inevitably result in detailed case-by-case inquiries regarding whether and how the public had used a particular roadway.  This would inject uncertainty into property law, where predictability is paramount.  The better approach is to treat acceptance of common law dedications of areas for public use consistently, whether they involve a park, a road, a public plaza, or some other public space.

207 Ariz. at 424-25, ¶¶ 25-26, 87 P.3d at 837-38 (footnote omitted).  In this case there was unequivocal language in the recorded survey that dedicated the easement to the public, which was accepted once lots were sold subject to that survey.  Thus, a “common law dedication[ ] of roadway easement[ ] for public use . . . was validly made in this case.”  Id. at 425, ¶ 28, 87 P.3d at 838.


      Hunt v. Richardson, 216 Ariz. 114, 163 P.3d 1064 (Ct. App. 2007).

            Some members of the Simpson family owned land near Wickenburg with respect to which they recorded a survey referring to a 50’ perpetual, non-exclusive north-south easement along the western border of land known as Parcel 1 for ingress/egress and a similar 30’ east-west easement bisecting Parcel 1.  216 Ariz. at 117, ¶ 3, 163 P.3d at 1067.  Shortly thereafter the Simpsons recorded another document stating that it granted an easement to the general public as reflected in the aforementioned survey.   The north-south easement was a dirt road.  (The status of the east-west easement is not disclosed.)

The Richardsons bought Parcel 1.  A few years later the Richardsons paved the north-south easement, constructed a fence along the boundary, and replaced an older gate with an automated gate.  Some other Simpsons who owned contiguous land sued for interference with their easement rights.  The Hunts, owners of the adjacent Parcel 2, also intervened and joined the suit alleging interference with their easement rights. Upon cross-motions for summary judgment, the trial court held the easement was valid and enjoined the Richardsons from interference, requiring them to remove the fence and gate.  Id. at 118, ¶ 7, 163 P.3d at 1068.

Although the court of appeals reversed as to the Richardson’s counterclaim to determine responsibility for maintaining the easement, it affirmed summary judgment as to the validity of the common law dedication of the road easement, relying on the decision in Pleak.

          To be effective, the dedication must include an offer by the landowner to dedicate and acceptance by the general public.  . . . No magic words are required to dedicate land to public use; any full demonstration of the donor’s intent to make the dedication is sufficient. . . .

The Richardsons . . . contend that neither the Town of Wickenburg nor any other governmental entity accepted the dedication, as required by law.  The Richardsons point out that the Town expressly rejected the dedication by expressing its lack of interest in using or maintaining the easement.  The Hunts and Transitional Living respond that, as set forth in the supreme court’s decision in Pleak, it is unnecessary for a governmental entity to formally accept a dedication in order to validate that dedication.  We agree with the Hunts and Transitional Living.

Id. at 119, ¶¶ 13-14, 163 P.3d at 1069 (emphasis added).  The court of appeals also held that it did not matter whether the land involved were lots within a subdivision or separate parcels, nor did effectiveness turn on the amount of usage by the public.

        . . . Under Pleak, it was enough that some members of the public, including those residing nearby, used the road. . . .

In summary, we hold that a party wishing to make a common law dedication of an easement to public use need not satisfy requirements for deeding fee title to real property.  The landowner need only make an offer to dedicate, which the general public acceptsIt is unnecessary for a government entity to formally accept such a dedication in order to validate it.  A sale of property with reference to a recorded plat containing the dedication is sufficient to accept the dedication.  Finally, whether such an easement serves a limited number of the public does not diminish any proper public purpose served by the easement.  Applying these principles to the facts of this case, the trial court properly ruled that the easement is valid.

Id. at 120, ¶¶ 18-19, 163 P.3d at 1070 (emphasis added).


City of Chandler v. Arizona Dept. of Transp., 224 Ariz. 400, 231 P.3d 932 (Ct. App.  2010).

          The City of Chandler was the owner of some land that was in unincorporated Maricopa County.  As part of the construction by ADOT of the Loop 202 Santan Freeway, some City of Chandler water and sewer lines needed to be moved that were under Willis and McQueen Roads.  Each of the City and ADOT maintained that the other should be responsible for the expense and the City sued for declaratory relief.  Both parties moved for summary judgment.  The City argued that it had a prescriptive easement.  Initially, the superior court ruled for the City, but that decision was vacated on appeal.  On remand, the superior court granted summary judgment to ADOT, which ruling the court of appeals affirmed.

The history of the property was that prior to 1917 deeds of 6 properties in what became the subject intersection were recorded with limitations for the establishment of a north-south road and an east-west road, each conveyance excepting 33’ for road purposes.  Maricopa County later recorded plats and “declared the resulting sixty-six-foot rights-of-way as public highways in 1917.”  224 Ariz. at 403, ¶ 8, 231 P.3d at 935.  In this case, the City and ADOT did not dispute “that the conveyances resulted in common law dedications of portions of McQueen and Willis Roads.  The parties do not dispute that valid offers to dedicate were evident from the deed language, or that the County properly accepted the roadway dedications for the public benefit.”  Id. ¶ 11 (footnote omitted).

          “Dedication is the intentional appropriation of land by the owner to some proper public use.” . . . Property may be dedicated pursuant to statute (a statutory dedication) or by action of the common law (a common law dedication).  . . . Whether by common law or by statute, a dedication, once perfected, is irrevocable. . . .

The doctrine of common law dedication has long been applied to roadway easements for public use in Arizona.  . . . To be effective, a dedication must include an offer by the landowner to dedicate, and acceptance by the general public.  . . . “Anything which fully demonstrates the intention of the donor and the acceptance by the public works the effect.” . . . When a common law dedication occurs, the public acquires an easement to use the property for the specific purpose, but fee ownership remains with the dedicator.

Id. ¶¶ 9-10 (citations omitted).

“By accepting the dedication from the Chandler Improvement Company, the County, on behalf of the State and the public, acquired all rights incident to roadway use, including substantial rights in the subsurface.”  Id. at 404, ¶14, 231 P.3d at 936.  The court of appeals determined, however, the foregoing entitled the City to have utility lines in the easement, but not to have their necessary relocation treated as a taking.  “Arizona recognizes the common law rule that ‘a public utility has the duty of relocating its lines when such is made necessary by street improvements.’ ” Id. at 405, ¶ 18, 231 P.3d at 937.  There was no evidence that ADOT’s actions were unreasonable, so summary judgment for ADOT was affirmed.


Kadlec v. Dorsey, 223 Ariz. 330, 223 P.3d 674 (Ct. App. 2009), vacated, 224 Ariz. 551, 233 P.3d 1130 (2010).

          Turigliatto owned 3 adjacent lots.  A dirt road ran across all 3.  He sold the easternmost parcel first, “subject to the existing road” shown on a specified survey.  He sold the middle parcel next, “subject to an undefined easement” referencing the same survey.  223 Ariz. at 331, ¶ 2, 223 P.3d at 675.  “When he sold the third and westernmost lot, Turigliatto retained ownership of the roadway.”  224 Ariz. at 552, ¶ 2, 233 P.3d at 1131.  The Dorseys eventually became the owner of the middle parcel of the 3 adjacent lots.  The Kadlecs and the Howells owned neighboring parcels, but which were not part of the Turigliatto lots.  After the Dorseys put a gate across the western end of the road on their property and fence posts blocking it on the eastern end, the Kadlecs and Howells sued.

On cross-motions for summary judgment, the superior court ruled for the Kadlecs and against the Dorseys, holding that Turigliatto had created a public roadway easement that the Dorseys were not permitted to block.  The court of appeals affirmed, relying principally on Pleak, however, with a dissent.  The supreme court reversed.

The court of appeals had concluded that a road, by its very nature is presumed to be for a public purpose, and had placed the burden on the Dorseys to prove Turigliatto had intended otherwise.  The supreme court held that there is no such presumption and that the court of appeals had improperly shifted the burden, confirming that a dedication is never presumed and the burden of establishing it always is on its proponent.  224 Ariz. at 552, ¶ 8, 233 P.3d at 1131.  The supreme court held the record did not support the presumption made by the court of appeals.

          The Kadlecs had the burden of identifying facts from which a jury reasonably could conclude that Turigliatto intended a public dedication.  The record permits no such inference.  . . . [N]o language in Turigliatto’s deeds or survey map suggests that the easement was dedicated to the public.  Second, when Turigliatto conveyed two of the parcels in separate sales, he retained an easement over the Dorseys’ lot and an adjacent eastern lot, while he still held the westernmost parcel – a step that would be unnecessary if the same easement had been dedicated to the public in those transactions. . . . Finally, when Turigliatto disposed of the western parcel, he retained the ownership of the road, granting the parcel only an easement.  On this record, therefore, partial summary judgment should not have been granted to the Kadlecs on this issue.

Id. at 553, ¶ 12, 233 P.3d at 1132 (emphasis added).



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