IN THE SUPREME COURT OF IOWA

No. 19–1681

Submitted November 17, 2021—Filed June 24, 2022

WILLARD B. McNAUGHTON,

Appellant,

vs.

STANLEY E. CHARTIER, JEANINE K. CHARTIER, CHAR-MAC, INC., CITY 

OF LAWTON, and ABILIT HOLDINGS, LLC,

Appellees.

_________________________________

STANLEY E. CHARTIER, JEANINE K. CHARTIER, and CHAR-MAC, INC.,

Counterclaim Plaintiffs,

vs.

CITY OF LAWTON,

Defendants to Counterclaim.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Woodbury County, Jeffrey A. 

Neary, Judge.

The defendant requests further review of a court of appeals decision 

declaring the parties’ rights in an easement and reversing an award of attorney 
2

fees under the common law. DECISION OF COURT OF APPEALS AFFIRMED; 

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.

McDonald, J., delivered the opinion of the court, in which Appel, 

Waterman, Mansfield, and Oxley, JJ., joined. McDermott, J., filed a dissenting 

opinion, in which Christensen, C.J., joined.

Angie J. Schneiderman and Coyreen R. Weidner of Moore, Corbett, 

Heffernan, Moeller & Meis, L.L.P., Sioux City, for appellant.

Chad C. Thompson of Thompson, Phipps & Thompson LLP, Kingsley, for 

appellees Stanley E. Chartier, Jeanine K. Chartier, and Char-Mac, Inc.

Kevin H. Collins and Sarah J. Gayer of Nyemaster Goode, PC, Cedar 

Rapids, for appellee AbiliT Holdings, LLC.

Douglas L. Phillips of Klass Law Firm, L.L.P., Sioux City, for appellee City 

of Lawton.
3

McDONALD, Justice.

Willard McNaughton entered into an easement agreement with Jeanine 

and Stanley Chartier to allow a small part of a road to pass through 

McNaughton’s property. The road was used to access the Chartiers’ business on 

their adjacent property. The agreement provided that it was a “ ‘private’ easement 

granted for the use and benefit of the parties . . . and [was] not to be construed 

as an easement for the use and benefit of the general public.” When the Chartiers 

later sold their business and property, litigation regarding a paved portion of the 

easement ensued. The district court held McNaughton’s right and interest in the 

disputed area had been extinguished. In the district court’s view, McNaughton 

had “dedicated [a] concrete portion of the easement to the [c]ity” because, among 

other things, the public had used the easement as the parties had agreed and 

because McNaughton had “never attempted to restrict the use of the concrete 

portion of the easement area.” The court of appeals reversed the district court, 

and we granted the Chartiers’ application for further review. For the reasons 

expressed below, we affirm the decision of the court of appeals.

I.

In 1998, McNaughton purchased property bordering the southern edge of 

the City of Lawton (City). The property was located directly south of U.S. 

Highway 20 (which runs east to west) and was accessible from the highway via 

a private driveway leading to a garage on McNaughton’s property. 

In 1999, Jeanine and Stanley Chartier, McNaughton’s sister and 

brother-in-law, purchased the adjoining lot east of McNaughton’s property. The 
4

Chartiers purchased the property to develop an assisted living facility. To get 

access from the assisted living facility to the highway, McNaughton and the 

Chartiers sought approval from the Iowa Department of Transportation (IDOT) 

for a special access connection. IDOT approved the request but required the 

special access connection to line up directly with Cedar Street, a north–south 

street located across the highway from McNaughton’s property. The Chartiers 

agreed to the location of the special access connection, which was to be a short 

road running south off Highway 20 abutting McNaughton’s driveway. The short 

road connected with an east–west road, now known as East Char-Mac Drive, 

which provided access to the Chartiers’ business and property. Below is a trial 

exhibit depicting the properties and roadways at the time of trial.

To accommodate the special access connection to Highway 20, the 

Chartiers entered into a written easement agreement with McNaughton in 1999. 
5

The easement gave the Chartiers and their business invitees the right to access 

a small portion of McNaughton’s property. The easement extended twenty-three 

feet west from the Chartiers’ property line and eighty feet south from the 

highway. As relevant here, the easement agreement (which referred to the 

Chartiers collectively as “Chartier”) provided: 

3. Chartier desires to acquire an easement for ingress and 

egress across a portion of McNaughton’s real estate to provide 

Chartier with an access between their real estate and U.S. Highway 

20. 

4. McNaughton is willing to grant an easement to Chartier 

pursuant to the terms and conditions set forth in this Agreement.

. . . .

6. The Easement rights granted herein are for the 

exclusive use and benefit of Chartier, and the residents, guests, 

and other invitees of the assisted living facility located on 

Chartiers’ property. The easement rights granted herein may not 

be assigned by Chartier to any other party or parties without the 

express written consent of McNaughton or his successors or 

assigns. It is specifically understood that this Agreement 

creates a “private” easement granted for the use and benefit of 

the parties identified in this paragraph and is not to be 

construed as an easement for the use and benefit of the general 

public.

7. As additional consideration for the grant of easement 

herein, Chartier shall be obligated to take all action necessary to 

[e]nsure that the town of Lawton, Iowa, becomes contractually 

obligated to maintain the easement area for use consistent with the 

easement rights granted hereunder.

8. This instrument may not be modified except by written 

instrument executed by all of the parties hereto or by their legal 

successors and/or assigns. 

(Emphases added.) Shortly after McNaughton and the Chartiers entered into the 

easement agreement, the City paved and completed other improvements to the 
6

access road. The paved access road is thirty-six feet across. Only thirteen feet by 

sixty feet of the paved access road is within the parties’ private easement. Traffic 

entering the assisted living facility now treats the portion of the access road 

within the parties’ private easement as a southbound lane before turning east 

onto East Char-Mac Drive. 

The City asked McNaughton on several occasions in the early 2000s to 

dedicate the paved portion of the easement to the City. McNaughton refused each 

request. His testimony regarding his refusal was corroborated by a letter he wrote 

to the City in January 2004 regarding maintenance of the street. In that letter, 

he referred to the “easement that [he] gave [his] sister.” He explicitly rejected the 

City’s request that he give the City an “easement [through his] property.” He said

“there is not a chance in hell that I will cooperate with any concession to the 

town.” It appears one of the reasons McNaughton refused to dedicate the 

easement to the City was the City’s failure to maintain the paved portion of the 

easement. The private easement agreement required the Chartiers to ensure the 

City would maintain the paved portion of the easement. The City sent 

McNaughton a letter promising to provide snow removal, maintenance, and 

repairs. McNaughton testified the City removed snow only a few times and 

generally had failed to maintain the paved portion of the easement. For their 

part, the Chartiers did not dedicate East Char-Mac Drive to the City until 2012.

Around 2018, Jeanine began experiencing health problems that 

necessitated the sale of the Chartiers’ business and property. AbiliT Holdings, 

LLC, emerged as a potential buyer. The Chartiers informed AbiliT about the 
7

easement. They discovered McNaughton had never recorded the easement 

agreement. Jeanine asked McNaughton to sign a Clarification of Easement, 

which stated the Chartiers’ successors or assigns could access Highway 20 using 

the easement. She offered McNaughton $15,000 in exchange for his agreement. 

McNaughton refused. McNaughton then filed a copy of the easement agreement 

with the county recorder. 

Although McNaughton would not sign the Clarification of Easement, 

McNaughton told the Chartiers he would not stand in the way of the sale to 

AbiliT. The Chartiers and AbiliT finalized the sale in April 2018. The Chartiers 

did not assign or attempt to assign any rights in the easement to AbiliT. After 

the deal was finalized, McNaughton demanded various forms of compensation 

from the Chartiers for the easement. He initially asked for $100,000 and later 

asked for $160,000. He next offered to sell his entire property (including his 

home) for $410,000. He later said he would convey the easement in exchange for 

a guarantee from Jeanine that he could purchase fifty acres of farmland from 

the estate of their deceased sister, for which Jeanine served as executor. The 

Chartiers declined each proposal.

After these failed negotiations regarding the rights in the private easement, 

McNaughton filed a petition for declaratory judgment, injunctive relief, and 

damages against the Chartiers, their business entity Char-Mac, Inc., and AbiliT. 

McNaughton sought a declaration that he had not consented to any assignment 

of the private easement and that AbiliT did not have any rights under the 

easement agreement. The Chartiers answered and filed a counterclaim against 
8

McNaughton. The Chartiers sought injunctive relief and common law attorney 

fees based on McNaughton’s alleged improper motives in bringing the suit. 

The Chartiers also named the City as a third-party defendant, contending 

the City had rights in the easement and was an indispensable party to the 

litigation. The City contested this and moved to dismiss the claims against it. 

The City argued it was not a necessary party to the dispute because it was “not 

a party to the easement agreement,” did “not own any portion of the property 

covered by the agreement,” and the easement agreement “granted no rights to 

the City.” The City argued the outcome of the litigation between the parties would 

have no impact on the City’s rights. Initially, the district court denied the City’s 

motion to dismiss. The City renewed its motion on the morning of trial. The City 

argued it “wasn’t a part of the easement agreement,” that “the City doesn’t own 

the property at issue,” and that “the City [wasn’t] really concerned about how the 

[c]ourt decide[d] the matter.” After hearing from the parties, the district court 

agreed and dismissed the City from the case.

The matter was tried to the court without the City participating in the trial. 

The district court found McNaughton had “dedicated the concrete portion of the 

easement to the City” because, among other things, the public had used the 

easement as the parties had agreed and because McNaughton had “never 

attempted to restrict the use of the concrete portion of the easement area.” The 

district court alternatively held that the easement was appurtenant to the 

Chartiers’ property, meaning the easement was created to benefit the Chartiers’ 

property and runs with that property to successive owners. As a result, the 
9

district court held that the easement passed with the property to AbiliT. Finally, 

the district court found McNaughton acted in bad faith in pursuing the litigation. 

The district court awarded the Chartiers common law attorney fees due to 

McNaughton’s “bad faith” and “vexatious” conduct. 

McNaughton timely appealed, and we transferred the matter to the court 

of appeals. The court of appeals found insufficient evidence to establish public 

dedication, relying particularly on language in the easement agreement that the 

easement was “for the exclusive use and benefit” of the Chartiers and their 

invitees and was “not to be construed as an easement for the use and benefit of 

the general public.” The court of appeals also found persuasive McNaughton’s 

uncontroverted testimony that he repeatedly refused the City’s request to 

dedicate the easement to the City. As to the issue of whether the easement was 

appurtenant, the court of appeals similarly reversed. The court of appeals 

determined that while McNaughton’s easement made access more convenient, 

the easement agreement itself indicated the easement was not appurtenant, and 

the easement was not necessary to access the assisted living facility. Finally, the 

court of appeals reversed the award of attorney fees, finding that McNaughton 

acted within his rights in attempting to receive compensation for a potential 

assignment of the easement. We granted further review. 

II. 

Our standard of review in a declaratory judgment action usually depends 

on how the case was tried in the district court. Passehl Est. v. Passehl, 712 

N.W.2d 408, 414 (Iowa 2006). Here, the district court provided declaratory and 
10

equitable relief regarding the parties’ respective rights in the easement. Under 

the circumstances, we conclude this was an equitable action and will review the 

matter de novo. See Iowa R. App. P. 6.907; In re Marriage of Beecher, 582 N.W.2d 

510, 512 (Iowa 1998). “In equity cases, the trial court’s findings of fact are not 

binding on us, but we give them weight, especially when they concern a witness’s 

credibility.” Newhall v. Roll, 888 N.W.2d 636, 640 (Iowa 2016); see Iowa R. App. 

P. 6.904(3)(g). 

III.

Like the court of appeals, we conclude the district court erred in 

concluding the Chartiers and AbiliT proved that McNaughton “dedicated the 

concrete portion of the easement to the City.” “ ‘Dedication’ is a term of art, and 

is a devotion of property to a public use by an unequivocal act of the owner of 

the property and an acceptance of that dedication by the public.” 11A Eugene 

McQuillin, The Law of Municipal Corporations § 33:2, Westlaw (3d ed. updated

Sept. 2021) [hereinafter McQuillin, Municipal Corporations]. “A ‘dedication’ is an 

uncompensated transfer of an interest in private property to the public.” Id. The 

party seeking to prove a public dedication thus must establish the following by 

cogent, clear, and convincing evidence: “(1) intent to dedicate, (2) dedication, and 

(3) acceptance by the public or the party to whom the dedication is made.” Sons 

of Union Veterans of Civ. War, Dep’t of Iowa v. Griswold Am. Legion Post 508, 641 

N.W.2d 729, 734 (Iowa 2002). There is not cogent, clear, and convincing evidence 

establishing an intent to dedicate or acceptance of any purported dedication in 

this case.
11

A.

“The intention of the owner to dedicate the property . . . [is] essential to a 

complete dedication.” McQuillin, Municipal Corporations § 33:2. The owner’s 

intent to dedicate must “exist[] at the beginning of the use, and continue[]

through the whole period necessary to evince a conclusive dedication.” Sioux 

City v. Tott, 60 N.W.2d 510, 516 (Iowa 1953) (quoting Dugan v. Zurmuehlen, 211 

N.W. 986, 989 (Iowa 1927)); see McQuillin, Municipal Corporations § 33.35 (“[A] 

court considers the acts or conduct at the time of the dedication, rather than at 

any time thereafter.”). Intent to dedicate can be express or implied. Sons of Union 

Veterans, 641 N.W.2d at 734. “An express dedication is evidenced by some 

explicit or positive declaration, or manifestation of intent to surrender the land.” 

Id. (quoting De Castello v. City of Cedar Rapids, 153 N.W. 353, 355 (Iowa 1915)). 

An implied dedication is evidenced “by some act or course of conduct on the part 

of the owner from which a reasonable inference of intent may be drawn.” Id.

(quoting De Castello, 153 N.W. at 355).

Whether a grantor’s intent to dedicate land for public use is express or 

implied, the evidence of intent must be clear and unmistakable. See Merritt v. 

Peet, 24 N.W.2d 757, 762 (Iowa 1946) (stating the act of public dedication “must 

be unmistakable in its purpose”). This is a high burden. “The intention of the 

owner to set apart the lands for the use of the public as a highway—the animus 

dedicandi—is the fundamental principle, the very life of dedication.” Tott, 

60 N.W.2d at 516 (quoting Davis v. Town of Bonaparte, 114 N.W. 896, 898 (Iowa 

1908)). A public dedication “may not be predicated on anything short of 
12

deliberate, unequivocal, and decisive acts and declarations of the owner, 

manifesting a positive and unmistakable intention to permanently abandon his 

property to the specific public use.” Sons of Union Veterans, 641 N.W.2d at 734 

(quoting Culver v. Converse, 224 N.W. 835 (Iowa 1929)). If the grantor’s acts are 

in any way “equivocal[] or do not clearly and plainly indicate the intention to 

permanently abandon the property to the use of the public, they are insufficient 

to establish a case of dedication.” De Castello, 153 N.W. at 355 (quoting 

Holdane v. Trs. of the Vill. of Cold Spring, 21 N.Y. 474, 478 (1860)). 

1.

There is not cogent, clear, convincing, unequivocal, or unmistakable proof 

that McNaughton intended a public dedication of the easement at issue “at the 

beginning of the use.” Tott, 60 N.W.2d at 516 (quoting Dugan, 211 N.W. at 989). 

In fact, there is cogent, clear, convincing, unequivocal, and unmistakable proof 

of the opposite. 

The easement at issue was created by express agreement of McNaughton 

and the Chartiers. Where a servitude is created by express agreement of the 

parties, it must “be interpreted to give effect to the intention of the parties 

ascertained from the language used in the instrument, or the circumstances 

surrounding creation of the servitude, and to carry out the purpose for which it 

was created.” Stew-Mc Dev., Inc. v. Fischer, 770 N.W.2d 839, 847 (Iowa 2009) 

(quoting Restatement (Third) of Property: Servitudes § 4.1(1) (Am. Law Inst. 

2000) [hereinafter Restatement]). We have thus repeatedly stated that in 

interpreting easements, “the intention of the parties is of paramount 
13

importance.” Gray v. Osborn, 739 N.W.2d 855, 861 (Iowa 2007); see Iowa R. App. 

P. 6.904(3)(n) (“In the construction of written contracts, the cardinal principle is 

that the intent of the parties must control, and except in cases of ambiguity, this 

is determined by what the contract itself says.”). “If a grant is specific in its terms, 

it is decisive of the limits of the easement.” Flynn v. Mich.-Wis. Pipeline Co., 161 

N.W.2d 56, 61 (Iowa 1968) (quoting 17 Am. Jur. Easements § 97). 

Here, the language of the instrument plainly and unambiguously 

establishes the easement was a private easement for the Chartiers’ benefit and 

not a dedication of property rights to the City or the public at large. The easement 

agreement provides it is a “private” agreement between McNaughton and the 

Chartiers. The agreement states, “Chartier desires to acquire an easement for 

ingress and egress across a portion of McNaughton’s real estate.” (Emphasis 

added.) The agreement provides that McNaughton “is willing to grant an 

easement to Chartier.” (Emphasis added.) The conveyance language provides that 

“McNaughton grants and conveys to Chartier an easement for increases and 

egress.” (Emphasis added.) The “easement rights granted” to Chartier were “for 

the exclusive use and benefit of Chartier, and the residents, guests and other 

invitees of the assisted living facility.” (Emphasis added.) The agreement further 

provides that “the easement rights granted herein may not be assigned by 

Chartier to any other party or parties without the express written consent of 

McNaughton.” If the parties’ intent to create a private easement for the Chartiers 

was not clear enough from this language, the agreement concludes, “It is 

specifically understood that this Agreement creates a ‘private’ easement granted 
14

for the use and benefit of the parties identified in this paragraph and it is not to 

be construed as an easement for the use and benefit of the general public.”

The unambiguous expression of a parties’ intent to create a private 

easement and not a public dedication must be given effect. See Tott, 60 N.W.2d 

at 516; Mid–Valley Res., Inc. v. Foxglove Props., LLP, 381 P.3d 910, 918 (Or. Ct. 

App. 2016) (“[T]he deed conveyed the roadway to the Namitzes and ‘their heirs 

and assigns forever.’ That language is not a clear and unequivocal intention to 

dedicate a public right-of-way.”); McQuillin, Municipal Corporations § 33:42 (“The 

intent of the dedicator is the foundation and life of all dedications and that intent 

must be clearly and unequivocally manifested. If the intent is to be gathered from 

writings, they must clearly manifest the intent to dedicate.” (footnote omitted)); 

see also City of Alexandria v. Thigpen, 45 So. 253, 255 (La. 1907) (“As the plaintiff 

relies on alleged dedication by deeds made with reference to certain maps, the 

question is whether the intention to dedicate is clearly and unequivocally 

manifested on the face of the papers.”); Hersh v. Plonski, 938 A.2d 98, 105 (N.H. 

2007) (holding a subdivision plan that referred to a strip of land as a 

“right-of-way,” rather than a “public” street, did “not clearly and unequivocally 

manifest . . . intent” to dedicate the land to the public); Wright v. Town of 

Matthews, 627 S.E.2d 650, 659 (N.C. Ct. App. 2006) (“The deed failed to specify 

whether such right-of-way was for purposes of a public or private street, 

however. As such, the language of the deed does not create a public right-of-way, 

but only a private one.”). Quite simply, “creation of a roadway easement does not 
15

raise a presumption that the road has been dedicated for public use.” Kadlec v. 

Dorsey, 233 P.3d 1130, 1131 (Ariz. 2010) (en banc). 

2.

Nor is there cogent, clear, convincing, unequivocal, or unmistakable proof 

that McNaughton subsequently changed his mind and decided to dedicate the 

easement at issue to the City or the public at large. In fact, there is cogent, clear, 

convincing, unequivocal, and unmistakable proof of the opposite.

After McNaughton entered into the private easement agreement with the 

Chartiers, he continued to express his intent that he was not publicly dedicating 

the easement. The City asked McNaughton on at least three occasions to dedicate 

the easement, and McNaughton refused the City each time. McNaughton’s 

testimony on this point was uncontroverted. Further, his testimony was 

supported by contemporaneous documentation in the form of his 2004 letter to 

the City, in which he stated “there is not a chance in hell that I will cooperate 

with any concession to the town.” “Tacit dedication does not result where active 

opposition is directly communicated by the landowner to the governing body.” 

Vaughn v. Williams, 345 So. 2d 1195, 1198 (La. Ct. App. 1977); see Sons of Union 

Veterans, 641 N.W.2d at 734; McQuillin, Municipal Corporations § 33:42. 

B.

Despite the lack of evidence establishing a clear and unmistakable intent 

by McNaughton to dedicate the easement to the public at the time of its creation 

or subsequent thereto, the district court nonetheless found McNaughton 

dedicated the “concrete portion of the easement to the City.” The district court 
16

reasoned that McNaughton’s acquiescence to the public’s use of the private 

easement established sufficient intent to dedicate the easement to the City. We 

conclude the district court erred in reaching that conclusion.

First, the district court failed to apply controlling authority. Under Iowa 

law, “[m]ere permissive use of a way, no matter how long continued, will not 

amount to a dedication.” Culver, 224 N.W. at 836; see also Restatement § 2.16

cmt. f (“Permissive uses do not give rise to prescriptive rights . . . .”). We applied 

this black-letter principle in State v. Hutchison, a case involving five defendants 

who were convicted of misdemeanor criminal trespass after participating in a 

protest on a road outside an armory. 721 N.W.2d 776, 778 (Iowa 2006). The 

defendants argued they could not be guilty of criminal trespass because the road 

outside the armory was a public road and not a private road. Id. at 779. In 

support of this argument, they argued the Army Corps of Engineers (which 

owned the land) or the Iowa Army National Guard (which leased the land) had 

dedicated the road to the public. Id. at 781. We concluded there was insufficient 

evidence to establish a public dedication. Id. at 782. We explained,

The record is devoid of any evidence that the Guard or the 

Corps intended to dedicate the road to the public when the road was 

first opened for public use or at any time thereafter. At most, the 

evidence showed permissive use by persons wanting access to the 

lake or a way around the lake, a fact insufficient to support 

dedication. 

Id. 

In Sioux City v. Tott, we held that a city failed to prove “a common law 

dedication of a public road, sixty-foot wide across defendant’s acreage.” 

60 N.W.2d at 516. We explained that “[t]he first quest [was] to find evidence 
17

indicating the owner’s intention to dedicate the strip.” Id. There was no direct 

evidence of intent to dedicate the strip, so we looked at evidence of public use. 

Id. at 517. We concluded the city’s maintenance of the roadway and the limited 

use by the public was insufficient to establish a public dedication as a matter of 

law. See id. (stating dedication “is not established by the evidence of the city’s 

acts of maintenance, and it is not established by the proof of usage”). 

In Young v. Ducil, the plaintiffs brought an action to restrain the defendant 

property owners from interfering with a claimed easement in a roadway that ran 

across the defendants’ land, which the plaintiffs had used to access their own 

premises for over twenty years. 176 N.W. 272, 272 (Iowa 1920). The plaintiffs 

claimed the easement was also used by the general public. Id. The evidence at 

trial indicated that a portion of the roadway on the defendants’ land was used 

by people transacting business at a brickyard and a gristmill located on the 

defendants’ property. Id. at 273. Nonetheless, we held this evidence of use by the 

public was insufficient to establish public dedication of the easement. Id. at 275. 

“The best that can be said for plaintiffs’ use is that it was permissive, and this is 

not sufficient under the statute to sustain a claim of right to a permanent 

easement in the property . . . .” Id. 

In Bradford v. Fultz, we concluded there was no public dedication where 

the owner of the property permitted use by the public but expressed the intent 

that the use was not general but rather was for specific purposes:

It is elementary law that the intention to dedicate on the part 

of the owner must be shown, and plainly shown. The opening of a 

way from a public road over the owner’s land to his buildings or his 
18

place of business, though used by the public for the purpose of 

dealing with the owner, does not confer upon the public an 

irrevocable right to its use. The right, under such circumstances, is 

granted for the benefit of the owner—a mere permission or license 

to the public to pass over it in dealing with the owner—and is 

revocable by the owner when the purposes for which the right was 

created have ceased to exist. 

While continued use by the public has probative force on the

question of dedication to the public, when such use is with the 

knowledge or consent of the owner, yet it is not sufficient in itself, 

and of itself to show a dedication, and, in so far as the use suggests 

a dedication, this suggestion and the probative force of the fact of 

user is overcome when it is shown that the use by the public was 

not of a general character, but such only as occurred in dealings 

with the owner of the land. The use, then, is only permissive—a 

license by the owner to the use; revocable by the owner when the 

purposes of its use are ended. . . . 

We think that the record in this case discloses the intent and 

purpose of [the original landowner] in making the road in question, 

and that was to provide a private way across his own land and for 

his own use, and we think the law is that user by the public, though 

it continued for many years, when such use is made only in 

connection with the use by those for whose benefit it was laid out, 

does not show a dedication and establishment of it as a public 

highway. No presumption of dedication arises where it is shown that 

the road was primarily built for the convenience of the owner, 

although the public had been allowed to use it for many years in 

dealing with the owner. Use is only presumptive evidence of 

dedication, at most, which may be rebutted and is rebutted by facts 

which satisfy the mind that the use was not general, but for specific 

purposes, and which show that the use was permissive only so far 

as the public was concerned; that it was built, primarily, for the use 

and benefit of the owner.

149 N.W. 925, 928–29 (Iowa 1914). 

The present case is materially indistinguishable from these controlling 

authorities. McNaughton entered into a private easement agreement with his 

sister but expressly stated the private easement should not be construed as a 

use for the general public. As in these controlling cases, McNaughton then 
19

permitted the use for the limited purpose to which he agreed. “No length of use 

of a private road will make it a public highway.” Id. at 929. These cases are in 

accord with a leading treatise on the subject:

In instances when public use is the only evidence of either 

dedication or acceptance, where the use of the property by the public 

is not exclusive of the owner’s rights, but is consistent and in 

common therewith, such use by the public is no proof of an intention 

to dedicate the property to the public, but is permissive only. 

McQuillin, Municipal Corporations § 33.37. This case more strongly militates 

against a finding of dedication. Here, unlike in the above-discussed cases, 

McNaughton repeatedly expressed his intent to not dedicate the easement to the 

public. He did so in the original instrument creating the easement, and he did 

so when he repeatedly rebuffed the City’s request for dedication.

Second, the district court placed McNaughton in an impossible legal 

situation. The easement agreement permitted use of the easement by the 

Chartiers and the residents, guests, and other invitees of the assisted living 

facility. Under the district court’s reasoning, however, McNaughton was required 

to violate the terms of the easement agreement, disallow these permissive uses, 

and subject himself to suit merely to disestablish an intent to publicly dedicate 

the easement. This is contrary to Iowa law. See Krogh v. Clark, 213 N.W.2d 503, 

506 (Iowa 1973) (“It is, of course, true that neither party to an easement may 

interfere with the rights of the other. The one who enjoys the easement must use 

it according to its terms; the one who has granted it must not interfere with the 

rights conferred.”); Schwartz v. Grossman, 173 N.W.2d 57, 61 (Iowa 1969) 

(granting injunction against defendant who blocked alleyway over which plaintiff 
20

had easement, finding “wilfull and substantial violation of plaintiff’s right to the 

free and unobstructed use of the alley”). Under the district court’s reasoning, 

every private easement of this type would automatically ripen into a public 

dedication unless the grantor breaches the terms of the agreement. This outcome 

is obviously irrational and explains the general rule that permissive use does not 

give rise to a public dedication or prescriptive rights.1

Third, the district court’s rationale would have significant implications for 

a wide array of property rights. One common example involves the public’s use 

of driveways and parking lots on commercial properties. Frequently, one property 

owner allows the guests, customers, or other invitees of an adjoining property 

owner to ingress or egress from the property using a single driveway or allows 

the use of a parking lot. The property owner’s grant of permissive use does not 

ripen into a dedication over time that causes the property owner to lose rights in 

the property. See, e.g., Ass’n of Indep. Taxi Operators v. Yellow Cab Co., 82 A.2d 

106, 110 (Md. 1951) (holding public’s continuous use of a driveway to access a 

railroad depot did not result in public dedication of the way since “the station 

necessarily operate[d] on a twenty-four-hour basis” and it was “entirely 

1Pimental v. River Junction Ests., LLC, 263 A.3d 847, 854 (Conn. App. Ct. 2021) (“[M]ere 

permission on the part of the owner to the public to use the land as a way, without more, will 

not constitute an intention to dedicate, since a temporary right to use a private way is in the 

nature of a mere license, revocable at pleasure, and does not in any sense establish the requisite 

intent.” (alteration in original) (quoting Mihalczo v. Borough of Woodmont, 400 A.2d 270, 273 

(Conn. 1978))); Sons of Union Veterans, 641 N.W.2d at 734; Weiss v. Borough of S. Bethlehem, 20 

A. 801, 801 (Pa. 1890) (“[M]ere permissive use by the public of a piece of ground left open by the 

owner in front of his property, and used by him in his own business, and for his own convenience, 

was not a dedication to public use, and conferred no right upon the public as against the 

owner.”).
21

impracticable . . . for the employees of the Railroad to stop each vehicle entering 

the drive to enquire whether it is merely passing through, or whether the 

occupants have business with the Railroad”); Sec. Fed. Sav. & Loan Ass’n v. C & 

C Invs., Inc., 448 N.W.2d 83, 87 (Minn. Ct. App 1989) (rejecting claim that 

property owner’s acquiescence in allowing customers and shopping center 

patrons to pass through property was sufficient to establish dedication of a 

portion of the property); Shapiro Bros. v. Jones–Festus Props., L.L.C., 205 S.W.3d 

270, 278 (Mo. Ct. App. 2006) (holding public’s use of a shopping center’s parking 

lot to patronize stores located on the property and as a shortcut between adjacent 

streets was insufficient to prove dedication).

Fourth, the district court’s holding results in a de facto taking of 

McNaughton’s property without just compensation. “The very essence of a 

dedication is that there is no compensation to the dedicator.” Brown v. Bd. of 

Cnty. Comm’rs, 422 N.W.2d 440, 442 (S.D. 1988). Because a dedication is 

uncompensated, courts must jealously police the doctrine so as to be certain the 

property owner unambiguously intends to part with his property without 

consideration: 

The intent to dedicate must be obvious. . . . “Persons who have, from 

mere kindness, suffered others to enjoy privileges in their lands, 

have been eventually coerced into parting with them entirely, 

without compensation, and to yield up as rights what they had 

previously suffered or allowed as favors, and the simple expression 

of an intention, has often been distorted into a positive promise, and 

occasionally to those who have no distinct interest in its 

performance. Our title to our lands is too important to be lightly lost, 

upon slight presumptions. Before the owner should be deprived of 

his property, his intention to part with it should be clearly and 

unequivocally expressed.”
22

Friends of Hastain Trail v. Coldwater Dev. LLC, 205 Cal. Rptr. 3d 270, 286 

(Ct. App. 2016) (omission in original) (quoting Harding v. Jasper, 14 Cal. 642, 

648 (1860)). Finding a dedication in the face of McNaughton’s express intent to 

the contrary does not clear the bar of cogent, clear, and convincing evidence 

necessary to ensure his property is not taken by the public without just 

compensation. 

C.

In addition to establishing McNaughton intended to dedicate the easement 

to the public, the Chartiers and AbiliT were required to establish by cogent, clear, 

and convincing evidence that the public accepted the easement. Acceptance may 

be express or implied. Sons of Union Veterans, 641 N.W.2d at 734. The district 

court found they proved that the “City of Lawton has accepted the [easement] as 

a public street (public improvement).” We conclude the district court erred in 

finding acceptance of the easement by the City or by the general public.

There is no evidence the City expressly accepted the purported dedication 

of any easement. Indeed, the City’s position in this case demonstrates that it has 

not accepted any dedication of the easement. In the district court, the City 

argued it was not a necessary party to the dispute because it was “not a party to 

the easement agreement,” did “not own any portion of the property covered by 

the agreement,” and the easement agreement “granted no rights to the City.” On 

the day of trial, the City again explained that it claimed no rights in the easement 

and wasn’t “really concerned about how the [c]ourt decide[d] the matter.” The 

district court’s finding that the City had accepted the easement is contrary to its 
23

own decision to dismiss the City from the case as a party without any interest in 

the property at issue. 

Nor is there cogent, clear, and convincing evidence of implied acceptance 

by the City or the public generally. Use by the general public is not sufficient to 

prove acceptance of a dedication if a landowner’s intent to make a dedication is 

not first established. This is because the public “cannot accept that which is not 

offered in the first instance.” Cohn v. Town of Randall, 633 N.W.2d 674, 677 (Wis. 

Ct. App. 2001); see McQuillin, Municipal Corporations § 33.57 (“[A]n offer to 

dedicate may be impliedly accepted by a user of the property by the public for 

the dedicated purpose for a considerable length of time. This is true even though 

the property has not been worked by the public authorities provided the 

circumstances are otherwise consistent with an intention to dedicate.” (emphasis 

added) (footnotes omitted)). Since the Chartiers have not established 

McNaughton’s intent to publicly dedicate the easement, they have also failed to 

establish public acceptance of the dedication. 

IV. 

“On further review, we have the discretion to review any issue raised on 

appeal.” State v. Crawford, 972 N.W.2d 189, 203 (Iowa 2022) (quoting State v. 

Vandermark, 965 N.W.2d 888, 891 (Iowa 2021)). We exercise that discretion to 

review only the district court’s ruling on the issue of public dedication. The court 

of appeals decision is final as to all other issues. On our de novo review, we 

conclude the district court erred in finding that “McNaughton has dedicated the 

concrete portion of the easement to the City of Lawton and the City of Lawton 
24

has accepted the same area as a public street.” The district court further erred 

in holding that “McNaughton’s rights to the 13-foot by 80-foot easement area 

covered by the concrete street are terminated and extinguished.” 

We remand this matter to the district court for further proceedings 

consistent with this opinion and the decision of the court of appeals.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT 

JUDGMENT REVERSED AND CASE REMANDED. 

Appel, Waterman, Mansfield, and Oxley, JJ., join this opinion. 

McDermott, J., files a dissenting opinion, in which Christensen, C.J., joins.
25

#19–1681, McNaughton v. Chartier

McDERMOTT, Justice (dissenting).

The creation of an easement for the public’s use of land—a “dedication”—

happens one of two ways: express dedication, which is evidenced through words, 

or implied dedication, which is evidenced through actions. The majority focuses 

on Willard McNaughton’s private easement agreement and his oral refusals for 

an express dedication to the City of Lawton (City) and, in so doing, holds that 

there has been no dedication. But the majority’s holding requires one to overlook 

two decades’ worth of actions by both McNaughton and the public that evidence 

the creation of an easement for the public’s use of the paved portion of the street 

along the edge of the property. Over that time, McNaughton permitted all 

members of the public unfettered access to the public street that the City paved 

on his land with his knowledge and consent.

So strong was McNaughton’s own belief in the public’s right to traverse the 

paved part of the street on his land that he himself thought the police could 

ticket him if he blocked traffic on it. That belief is consistent, of course, with 

having granted the public an easement. Most folks, I’d have to assume, would 

understand that they have an absolute right to block off a strip on their own land 

if indeed they believed that the public had no legal right to drive on it. The district 

court judge who presided at trial bought little of McNaughton’s pitch that he 

hadn’t dedicated an easement for the street, so much so that the court not only 

found public dedication of an easement but that McNaughton should pay the 

opposing party’s legal fees from the litigation.
26

It’s hard to see what remains of the doctrine of implied dedication—a 

doctrine appearing in cases throughout our state’s history—if the facts of this 

case fail to establish an easement for the public’s use of this (I’ll repeat) paved 

public street. I must respectfully dissent, and would hold that McNaughton’s 

unambiguous actions established an implied dedication of an easement for the 

public to travel the paved street on his property. 

I.

I won’t restate the facts of the case, but some key points are worth 

revisiting as we consider the legal framework. In November 1998, three months 

after McNaughton bought his property bordering Highway 20 on the south edge 

of Lawton, the Chartiers bought the neighboring property to the east to build an 

assisted living facility. Jeanine and Stanley Chartier were prohibited from 

installing a driveway that connected directly from their assisted living facility 

straight north to Highway 20. So to get access to the highway, the Chartiers 

needed approval for a “special access connection.” McNaughton and the 

Chartiers signed, and the Iowa Department of Transportation approved, an 

“Application for Establishment of a Special Access Connection” that granted the 

right to connect the new road to Highway 20.

On the heels of the Chartiers’ purchase of the land, they entered into a 

written easement agreement with McNaughton that would cover part of the 

north–south access from Highway 20. That access would then bend into an 

east-west street running to the assisted living facility farther east. The City 

named the new street “East Char-Mac Drive” (a name combination, one might 
27

presume, based on “Chartier” and “McNaughton”). But McNaughton never 

publicly recorded this easement agreement.

In 2000, the City paved the street running from Highway 20 to the assisted 

living facility. Minutes of city council meetings and a public notice for the City’s 

proposal to install the street described the project as a “public improvement.” 

The City accepted a bid from a contractor to complete the project for $52,000 

with the contract listing the “City of Lawton” as the “Owner.” The City’s attorney 

sent McNaughton a letter to confirm that the paved portion of the access located 

on McNaughton’s property would be maintained by the City in accordance with 

the maintenance of all other city streets. The City paid for the project using 

public funds without separate financial contribution from McNaughton or the 

Chartiers.

The City designated the Chartiers’ property, but not McNaughton’s, as part 

of an “Urban Renewal District” and “Tax Increment Taxing District.” The City 

thus created what is commonly referred to as a tax-increment financing (TIF) 

program to help recoup the expense of the project. The resolution creating the 

TIF program stated: “No land will be acquired by the City and included within 

the ‘CHAR-MAC Addition Urban Renewal Plan’ area.”

The public has had free and open access to the road since its construction 

in 2000. Jeanine Chartier testified that the street was always intended to be a 

public street. McNaughton acknowledged that there is no reasonable alternative 

to access the assisted living facility without crossing over his land. Traffic on the 

street since the sale hasn’t materially changed from before the sale. McNaughton 
28

has never limited or otherwise interfered with the public’s use of the street since 

the sale. McNaughton testified to his belief that if he blocked any portion of the 

access road, law enforcement would ticket him for interfering with traffic. 

McNaughton never, for twenty years, did anything to suggest anyone’s use of the 

street was prohibited or that the public had any restriction in using of the street. 

He never, for instance, posted any sign that the street (or the part of the street 

on his property) was a “private drive,” a “private road,” or for “residents and 

guests only.”

II.

As mentioned, dedication of land for public use “may be express or 

implied.” Restatement (Third) of Property: Servitudes § 2.2, at 62 (Am. L. Inst. 

2000) [hereinafter Restatement]. Intent to dedicate can be inferred from the 

owner’s acquiescence to the public’s use over an extended period of time. State 

v. K.C., St. J. & C.B.R. Co., 45 Iowa 139, 143 (1876). “[T]he duration and type of 

public use can raise both the presumption of the owner’s intent or offer to 

dedicate land to public use, as well as constitute acceptance by the public.” 11A 

Eugene McQuillin, The Law of Municipal Corporations § 33:4, at 513 (3d rev. ed. 

2018).

An implied intent to dedicate “need not have actually existed in the mind 

of the land owner.” Id. § 33:37, at 646–47. Acceptance of the property by the 

public may be shown by a formal act of a governmental body, by the public’s use 

of the land, or by a government’s maintenance or control of the land. 

Restatement § 2.18, cmt. e, at 319.
29

In Henry Walker Park Ass’n v. Mathews, we found a public dedication of a 

street and a parking lot that bordered a park and cemetery in a lawsuit brought 

by a landowner’s family. 91 N.W.2d 703, 709–10 (Iowa 1958). The cemetery was 

accessible only from a main gate at the front of the parking lot. Id. at 709. 

Hitching posts for horses had been installed for visitors to the cemetery and the 

park during the horse and buggy days, and visitors later parked cars there. Id.

The deceased owner and his successors (the defendants—the original owner’s 

daughter, her husband, and their son) had lived nearby and had not complained 

about or sought to limit the public’s use of the parking lot for many years. Id. at 

710. The family also never paid taxes on the lot. Id. We found that the owner’s 

and his successors’ actions implied an intent to dedicate the land and further 

found public acceptance of that implied public dedication. Id. at 711–12. 

The majority finds no implied easement may be found based on his 

unrecorded easement agreement with the Chartiers. That agreement stated that 

the easement he was providing “was for the exclusive use and benefit of Chartier, 

and the residents, guests and other invitees of the assisted living facility located 

on Chartier’s property,” and was “not to be construed as an easement for the use 

and benefit of the general public.” The majority’s focus on the easement 

agreement with the Chartiers certainly would undercut any claim by the 

Chartiers to rights beyond those in the easement agreement. But the Chartiers 

do not ask us to declare some further right to McNaughton’s land belonging to 

them. The Chartiers instead ask us to declare that the entire street, including 

the paved portion on McNaughton’s land, has been dedicated to the public. 
30

Simply because McNaughton granted a private easement to the Chartiers 

doesn’t preclude a finding that he dedicated the same land for the public’s use. 

In Herrick v. Gregory, the South Dakota Supreme Court found public dedication 

of a roadway where a private license had, as in this case, already been expressly 

granted on the same parcel of land. 190 N.W. 881, 882 (S.D. 1922). The owner 

of a lot granted a license to the owners of the neighboring lot, allowing the 

neighbors to come on their property to access the neighbors’ driveways. Id. The 

license stated that the area (an alley) was to be “kept open as a private highway.” 

Id. The grantor of the license (and the next owner of the lot following its sale) 

allowed the public free use of the alley for many years. Id. The court found that 

the owners of the lot had not only permitted the neighbors a private license to 

the alley, but also had “clearly indicated an intention to dedicate a right of way 

across the rear end of this lot to the public.” Id. The court noted that “while [the 

license] purported to grant only a private and personal right to the grantee, he 

kept the way open to the public, and it was used by all who had occasion to use 

it, without hindrance or restriction by him.” Id. The court found acceptance of 

the implied dedication by “long-continued use of such right of way by the public.” 

Id.

McNaughton concedes that he didn’t publicly file the easement agreement 

in 1999; it remained unrecorded until 2018. Neither the City nor the public at 

large were on notice of the private easement. No evidence shows that the public 

knew that McNaughton intended a purely private easement. To the contrary, the 

evidence establishes that McNaughton made no effort to restrict the general 
31

public’s use of the part of the street on his land. He placed neither signs on poles 

nor markings on pavement indicating any restriction. He concedes that members 

of the public would reasonably believe that the street is a public street. Indeed, 

he believes that law enforcement would cite him if he even attempted to restrict 

access to the road, thus acknowledging a reasonable understanding by the City 

of a duty to protect the public’s right to use and access the street.

The majority points to McNaughton’s testimony claiming that the City 

asked him to dedicate the easement on “at least three” occasions and that he 

refused each time. According to McNaughton, the first request came before the 

City paved the street in 2000 and the second perhaps a year later in a discussion 

with the City’s mayor at the time, Jeff Nitzschke. Nitzschke testified at trial, but 

no one asked him about any such discussion with McNaughton. Nitzschke 

contradicted McNaughton’s testimony by testifying that he believes the entire 

street is a public street. McNaughton didn’t offer any evidence about the City’s 

third request. 

Minutes from the city council meeting before the City paved the street 

include a resolution for the “1999 Char-Mac Addition Street Improvement 

Project.” The resolution states that the project “is in the public interest” and sets 

a “public hearing” for review and comment on the project’s plans, specifications, 

contract, and estimated cost. The resolution also instructs the city clerk to

publish a “notice of public hearing and a notice to bidders” concerning the project 

and includes other details relevant to the public bidding process. McNaughton 

testified that he saw some of these minutes at the time. The City council’s 
32

meeting minutes plainly run counter to the notion that the City understood this 

street paving project was for private use and not public dedication. 

McNaughton’s testimony that he expressly refused requests from the City to 

dedicate an easement for a public street thus conflicts with plenty of other 

evidence.

And other contemporaneous public records advance this point further. 

The City engaged an engineering firm to prepare the plans and specifications for 

the project at public expense. After concluding its public bidding process, the 

City entered into a contract with a construction company to complete the work. 

The contract for the project lists the “Owner” as “City of Lawton.” The City paid 

for the project using public funds without financial contribution from 

McNaughton or the Chartiers. In preparing the land for paving, the City removed 

four big trees on McNaughton’s property. The City’s documents describe the 

project as a “public improvement.”

What’s more, written communications that the City had directly with 

McNaughton contradict McNaughton’s claim. As the paving project neared 

completion, in a letter dated February 2000, the city attorney informed 

McNaughton that the City would maintain the paved portion of the street on 

McNaughton’s property just as it maintains all other city streets.

The City was making a significant investment—planning, engineering, 

contracting, constructing, and financing—in this project. McNaughton knew 

about the City’s sizeable construction project that included part of his property, 

and he further knew that the City had created a special TIF program associated 
33

with it. The City’s actions—and McNaughton’s knowledge of and response to 

them—support the conclusion that the public’s right to use the street over 

McNaughton’s land wasn’t contingent on the Chartiers’ ownership of the facility. 

And these points aside, McNaughton’s focus on his communications with 

the City about refusing a formal dedication to the City overlooks the potential 

distinction between an express dedication to a governmental body and an implied 

dedication to the public. “The acceptance of a dedication need not be by the 

municipality, but may be by the general public.” Wolfe v. Kemler, 293 N.W. 322, 

324 (Iowa 1940). Where there is no formal acceptance of a street by a 

governmental body, the “public use” of the street necessary to show acceptance 

of a dedication “need be only such as the public wants and necessities demand.” 

Kelroy v. City of Clear Lake, 5 N.W.2d 12, 20 (Iowa 1942); see also Restatement 

§ 2.18(1) cmt. a, at 317 (describing “the methods by which governmental bodies 

and the public may acquire servitudes” (emphasis added)). Again, acceptance of 

the property by the public may be shown in one of several ways: (1) by a formal 

act of a governmental body, (2) by the public’s use of the land, or (3) by a 

government’s maintenance or control of the land. Restatement § 2.18 cmt. e, at 

319. Unlike other types of property conveyances, “a dedication does not require 

a definite grantee, and is normally made to the public generally.” Id.

The district court, in my view, correctly found both public dedication of an 

easement by McNaughton and acceptance by the public. As to the first inquiry, 

McNaughton consented to the City’s improvement project to pave a street on 

land he owned; the City expended considerable public funds in constructing the 
34

street; the City agreed to maintain the street consistent with the City’s 

maintenance of all other public streets; McNaughton does not now, and has 

never, objected to the public’s use of the paved strip on his property; and 

McNaughton does not now, and has never, restricted the public’s use of the 

paved strip on his property. See Henry Walker Park Ass’n, 91 N.W.2d at 710 

(finding public dedication of a street and park based on the public’s 

long-continued use of the land with the knowledge and consent of the owner); 

Sioux City v. Tott, 60 N.W.2d 510, 516 (Iowa 1953) (finding public dedication 

based on “acts of the owner indicating an intention to dedicate,” including that 

a strip of road smoothed by the city had been “long used by the general public 

as a road”); Kinsinger v. Hunter, 192 N.W. 264, 264–65 (Iowa 1923) (finding 

public dedication of a road where the owner knew of and consented to the 

public’s continuous use despite there being no public record of the road’s 

establishment); State v. Birmingham, 38 N.W. 121, 122 (Iowa 1888) (finding 

public dedication of a road based on the owner’s knowledge of the public’s use 

and government improvements of the road over time); see also McQuillin, 

Municipal Corporations § 33:35, at 618 (“[I]f the owner of land either intentionally 

or otherwise induces the public to believe that the property has been dedicated, 

the owner is estopped to contradict the dedication to the prejudice of those 

misled by his or her action.”).

Within these same facts, the public’s acceptance of the easement is 

similarly established. See Marksbury v. State, 322 N.W.2d 281, 285–86 (Iowa 

1982) (finding public acceptance by the public’s continuous use of a beach 
35

without objection of the owners and the state’s maintenance of secondary roads 

within the beach which were presumably for the public); Henry Walker Park 

Ass’n, 91 N.W.2d at 710 (finding the public’s actual use of a street and park 

constituted acceptance); Kinsinger, 192 N.W. at 264–65 (finding public 

acceptance when the highway in question was “graded and improved” by 

highway officers with “a pipe or culvert provided . . . at public expense,” the road 

had been repaired over time, and telephone lines were strung on poles set in the 

road).

The majority argues that the unrecorded easement agreement shows that 

McNaughton didn’t intend to dedicate an easement to anyone other than the 

Chartiers. Although the easement agreement uses the word “private,” the 

language of the agreement permits use of the road by the facility’s “residents, 

guests, and other invitees”—in other words, any member of the public. 

McNaughton also testified that he agreed at the outset of the easement to let the 

public use the road: 

Q: So as far as traffic coming in from Highway 20 and turning to the 

east to go to the facility, do you have any objection to that 

continuing? 

A: No, that’s what I originally agreed to, I thought.

(Emphasis added.) McNaughton testified that he neither objected to nor 

restricted anyone’s use of the road—and indeed, that this openness to the 

public’s use was as he “originally agreed.” 

The majority’s reliance on the easement agreement as more or less 

determinative of the case blurs the distinct doctrines of express dedication and 
36

implied dedication. “A dedication is express when the intent is manifested by oral 

or written words, and is implied when the intent must be gathered from the acts 

of the dedicator.” McQuillin, Municipal Corporations § 33:3, at 501–02. The 

majority cites to a treatise that says dedication must be clear from the “writings” 

purporting to dedicate the property. See id. § 33:42, at 660. But this argument 

only toasts one slice of the public dedication loaf. This is a case of implied 

dedication, for which we look to McNaughton’s actions. “The old saw ‘actions 

speak louder than words’ has more than a grain of truth to it, and we adhere to 

it where, as here, a party’s words are contradicted by his actions.” Johnson v. 

Associated Milk Producers, Inc., 886 N.W.2d 384, 394 (Iowa 2016) (quoting 

Schoppert v. CCTC Int’l, Inc., 972 F. Supp. 444, 447 (N.D. Ill. 1997)). The majority 

omits a relevant portion in the very treatise upon which it relies, which makes 

clear that an owner’s intent may be inferred not only from some unequivocal act

but an “unequivocal assent to the use by the public.” McQuillin, Municipal 

Corporations § 33:42, at 663–64. McNaughton’s actions demonstrate his 

unequivocal assent to the public’s use of the street on his property, establishing 

an implied dedication. 

The majority cites several cases intended to support a finding that no 

implied dedication occurred here, but none buttresses its position for a simple 

reason: in each, the property owner (unlike McNaughton) took action to restrict

public access to the road. See State v. Hutchison, 721 N.W.2d 776, 782 (Iowa 

2006) (finding no dedication where the landowner “at all times retained control 

of the roadway, negating any intent to abandon the road to the public”); Tott, 60 
37

N.W.2d at 516 (finding no dedication when the defendant “posted the road as 

private and later blocked it so no member of the public could use it” and the 

owner never “asked the city to drag, blade, or grade this strip” of the road); Culver 

v. Converse, 224 N.W. 834, 837 (Iowa 1929) (finding no dedication because the 

owner restricted access to a roadway by placing gates across it)2; Bradford v. 

Fultz, 149 N.W. 925, 927–28 (Iowa 1914) (finding no dedication where the owner 

restricted public access to road to his business by seasonally closing gates across 

it). These cases find no analog in this case, in which McNaughton never took any 

action to restrict public access to the street.

The majority claims that finding public dedication “would have significant 

implications for a wide array of property rights,” including “the public’s use of 

driveways and parking lots on commercial properties.” But the property at issue 

in this case is not a private driveway nor a parking lot. It’s a street constructed, 

financed, named, and to be maintained by the City of Lawton. McNaughton could 

have taken any number of simple actions to indicate that he wasn’t granting an 

easement to the public—as private property owners commonly do—by, for 

instance, posting a “private road” or “residents and guests only” sign along his 

property. He of course never did.

Finally, the majority claims that finding an implied dedication in this case 

would amount to “a de facto taking” of private land without just compensation. 

But as one can deduce from scanning the dates on the cited cases, Iowa has 

2The Culver court also found persuasive that no government entity applied public funds 

to improve the road—another departure from this case. Culver, 224 N.W.2d at 837 (“It is not 

shown that [the road improvement] was done at public expense.”).
38

throughout its history accepted and employed the public dedication doctrine for 

transfers of private property—particularly streets and roads—to public use:

A common law dedication of land for a public purpose is well 

recognized in law. It is in no sense a taking of land for public 

purpose, for the public, as represented by the municipality, cannot 

take private property for a public purpose without paying for it. 

Dedication is just what the term signifies. It is the owner’s giving the 

right or easement for public use—the devotion to public use by the 

owner.

Tott, 60 N.W.2d at 515. While parties (and judges) might disagree about its 

proper application based on the facts of particular cases, the doctrine itself 

suffers no constitutional infirmity and has deep historical roots. 

I thus would affirm the district court’s holding that McNaughton had 

publicly dedicated an easement for the public on the paved portion of the street 

on his land.

Christensen, C.J., joins this opinion.