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IN THE SUPREME COURT OF THE STATE OF IDAHO 

Docket No. 40672

TERRIE H. ROWLEY,

 Plaintiff-Respondent,

v.

ADA COUNTY HIGHWAY DISTRICT,

 Defendant-Appellant,

and

CANUTA D. BOEREM, an unmarried 

individual; and CITY OF BOISE,

 Defendants.

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Boise, January 2014 Term

2014 Opinion No. 44

Filed: April 8, 2014

Stephen W. Kenyon, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada 

County. Hon. Michael E. Wetherell, District Judge

District court grant of summary judgment involving a walkway to Rowley, 

vacated and remanded.

Holland & Hart, LLP, Boise, for appellant. A. Dean Bennett argued.

Givens Pursley LLP, Boise, for respondent. Thomas E. Dvorak argued.

__________________________________

BURDICK, Chief Justice

Ada County Highway District (“ACHD”) appeals the district court’s grant of summary 

judgment to Terrie Rowley. This case concerns the ownership of a ten-foot-wide walkway in a 

Boise subdivision and arose after Rowley sought an injunction to remove a shed her neighbor 

placed on that walkway. The district court held that (1) the subdivision plats showed the original 

developers clearly and unequivocally dedicated the walkway to the public and (2) ACHD owns

the walkway. ACHD appeals, arguing no evidence in the record shows the original developers 

clearly and unequivocally intended a public dedication and no statutory provision authorizes 

ACHD to own the walkway. Rowley contends that the original developers clearly intended a 
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public dedication as the walkway was a public street’s corridor extension. We vacate and remand 

with directions to the district court to enter summary judgment in favor of ACHD.

I. FACTUAL AND PROCEDURAL BACKGROUND

This dispute concerns the ownership of a ten-foot-wide walkway in the Cherry Lane 

Subdivision in Boise. Rowley purchased a lot adjacent to the walkway in 1992. In 2012, Rowley

filed a complaint against Canuta Boerem, her neighbor to the west, seeking an injunction to 

remove a shed Boerem placed on that walkway. Darold and Minerva Smith were the original 

owners and developers of the subdivision, which they platted in two steps: the first in 1950 

(“1950 Plat”) and the second in 1954 (“1954 Plat”).

The Smiths filed the 1950 Plat on July 14, 1950. That plat identified lots, streets, and 

utility easements on the subdivision’s north half, which included Blocks 1, 2, and the northern 

half of Block 3. The plat shows an unlabeled strip of property running north-south through Block 

3. This strip is the ten-foot-wide walkway in dispute. Taggert Street runs north from the 

walkway’s north terminus. The 1950 Plat stated that “[t]he owners do hereby dedicate to the use 

of the public forever all streets, not heretofore dedicated, as shown on this plat.” This dedication 

language does not mention easements or rights-of-way. The 1950 Plat has a dashed line running 

along the back of each lot labeled “easement for public utilities.” The Smiths also recorded 

Covenants, Conditions, and Restrictions (“CC&Rs”). 

The Smiths filed the 1954 Plat on March 22, 1954. The 1954 Plat identifies lots, streets, 

and utility easements on the subdivision’s southern half, which included Blocks 4 and 5 and the 

southern half of Block 3. This plat also showed a strip of property that ran north-south through 

Block 3. However, in this plat the Smiths labeled the strip of land “Walk Way.” The walkway 

ran perpendicular to and intersected the east-west streets of Dill Drive to the north and Kathryn 

Street to the south. Taggert Street runs north to the southern point of the walkway, stops at the 

walkway, and then continues north from the north end of the walkway. The 1954 Plat stated that 

“[t]he owners do hereby dedicate to the use of the public, forever, all streets and rights of way 

easements not heretofore dedicated as shown on this plat.” The street and borders are marked 

with a solid line. The streets also have a center line that the walkway does not. The 1954 Plat’s 

legend shows a dashed line symbol for public utility easements. Matching dashed lines appear on 

the plat and run along the back of each lot. The same day the Smiths recorded the 1954 Plat, they 
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also recorded CC&Rs. These CC&Rs reserved easements for installing and maintaining utilities, 

irrigation, and drainage facilities. The CC&Rs do not reference the walkway. 

Rowley’s complaint sought (1) a declaration that the walkway was a public right-of-way;

(2) a decree that ACHD holds title to the walkway; (3) alternatively, a decree that the City of 

Boise owns the walkway; (4) a declaration that Rowley is entitled to own the walkway if either 

entity abandons it; and (5) an injunction that orders Boerem to remove the shed from the 

walkway. In response, ACHD filed a motion for summary judgment, arguing that the Smiths did 

not clearly and unequivocally dedicate the walkway to the public. The district court denied 

ACHD’s motion and granted Rowley summary judgment on that issue. The district court also 

granted Rowley summary judgment on the issue of whether ACHD owned the walkway. ACHD

then filed a motion to dismiss, or in the alternative a motion for rule 54(b) certification. After 

briefing, the district court certified its decision as final pursuant to I.R.C.P. 54(b). ACHD timely 

filed its notice of appeal. 

II. STANDARD OF REVIEW

We review a district court’s conclusions of law de novo. Ponderosa Home Site Lot 

Owners v. Garfield Bay Resort, Inc. (Ponderosa I), 139 Idaho 699, 700, 85 P.3d 675, 676 (2004).

Therefore, on summary judgment this Court affirms when “the pleadings, depositions, and 

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to 

any material fact and that the moving party is entitled to a judgment as a matter of law.” I.R.C.P. 

56(c). District courts may grant summary judgment to a non-moving party because a “motion for 

summary judgment allows the court to rule on the issues placed before it as a matter of law; the 

moving party runs the risk that the court will find against it . . . .” Harwood v. Talbert, 136 Idaho 

672, 677, 39 P.3d 612, 617 (2001). When a court grants summary judgment to the non-moving 

party, this Court liberally construes the record in favor of the party who the trial court entered

summary judgment against. Id. at 677–78, 39 P.3d at 617–18.

III. ANALYSIS

Although ACHD moved for summary judgment, the district court granted summary 

judgment to Rowley. First, the court held that an express and common law dedication to the 

public existed because the Smiths showed a clear intent to dedicate the walkway to the public. 

Second, the court held that ACHD held title to the walkway because the walkway was conveyed 
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to ACHD by operation of law and ACHD had statutory authority to administer it. ACHD appeals 

these two conclusions. 

A. The district court erred when it held that the subdivision’s original owners 

demonstrated clear and unequivocal intent to dedicate the walkway to the public.

Dedication is setting real property aside for the use or ownership of others. Armand v. 

Opportunity Mgmt. Co., 141 Idaho 709, 714, 117 P.3d 123, 128 (2005). Land can either be 

dedicated to the public or to private persons. Ponderosa I, 139 Idaho at 701, 85 P.3d at 677.

Property is dedicated to the public by the common law or by statute. Id.

1. The original owners did not make a common law dedication to the public. 

In this case, the district court held that the Smiths made an express and common law 

dedication to the public because they displayed a clear and unambiguous intent to dedicate the 

walkway to the public. The court held the Smiths’ intent was clear based on the 1954 Plat’s 

dedication language and emphasized that the walkway was “clearly marked, labeled, and set 

apart from the surrounding parcels.” 

Under the common law, a public dedication must satisfy a two-part test. Id. First, the 

landowner must clearly and unequivocally indicate intent to dedicate the land to the public. Id.

Second, the public must accept the offer. Id.1

Courts determine whether a landowner’s intent is clear and unequivocal by examining the 

plat and “the surrounding circumstances and conditions of the development and sale of lots.”

Saddlehorn Ranch Landowner’s, Inc. v. Dyer, 146 Idaho 747, 752, 203 P.3d 677, 682 (2009) 

(quoting West Wood Invs., Inc. v. Acord, 141 Idaho 75, 87, 106 P.3d 401, 413 (2005)). Courts 

cannot presume a landowner’s intent. Saddlehorn Ranch Landowner’s, 146 Idaho at 752, 203 

P.3d at 682. The party alleging that the owner intended to dedicate the land for public use bears 

the burden of proof. Id. Thus, the issue is whether Rowley showed that the Smiths clearly and 

unequivocally intended to dedicate the walkway to the public. 

Our analysis centers on the 1950 and 1954 Plats. We examine a plat like a deed, applying 

the plain language if it is unambiguous. Kepler-Fleenor v. Fremont Cnty., 152 Idaho 207, 212,

268 P.3d 1159, 1164 (2012). A plat subject to conflicting interpretations is ambiguous. Id. 

Whether a plat is ambiguous is a question of law subject to free review. Id.

 1 Acceptance is when lots are “sold or otherwise conveyed with specific reference to the apposite plat.” Worley 

Highway Dist. v. Yacht Club of Coeur d’Alene, Ltd., 116 Idaho 219, 225, 775 P.2d 111, 117 (1989). Here, the lots in 

both plats were sold with specific reference to the plat, and thus acceptance is not at issue. 
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Here, the dedication language is crucial. The 1950 Plat stated: “[t]he owners do hereby 

dedicate to the use of the public forever all streets, not heretofore dedicated, as shown on this 

plat.” Thus, the plat dedicated only streets to the public; it did not dedicate any easements or 

rights-of-way. Conversely, the 1954 Plat stated: “[t]he owners do hereby dedicate to the use of 

the public, forever, all streets and rights of way easements not heretofore dedicated as shown on 

this plat.” (emphasis added). The district court concluded that the Smiths’ intent to dedicate the 

walkway was clear based upon the 1954 Plat’s dedication language, reasoning that if the 

walkway was not dedicated to the public, the 1954 Plat’s dedication language was 

“meaningless.” The court stated:

The language “all ... rights of way easements, not heretofore dedicated” would be 

meaningless if the grantors had not intended the “walk way” to be dedicated to the 

public. The only prior dedications, after, all, had taken place in the 1950 plat, 

which clearly stated “[t]he owners do hereby dedicate to the use of the public 

forever all streets, not heretofore dedicated, as shown on this plat.” Because no 

other possible right of way easement is indicated in the 1954 plat, the only 

possible “right[] of way easement[] not heretorfore dedicated” is the walk way. 

In other words, the district court held the Smiths must have intended to dedicate the walkway to 

the public because the walkway was the only possible “right of way easement not heretofore 

dedicated.” 

The premise that the dedication language was “meaningless” without the Smiths’ intent

to dedicate the walkway to the public impermissibly presumes the owner’s intent. An owner’s 

intent to dedicate land to public use “must be clearly and unequivocally shown and must never 

be presumed.” Lattin v. Adams Cnty., 149 Idaho 497, 502, 236 P.3d 1257, 1262 (2010) (quoting 

State ex rel. Haman v. Fox, 100 Idaho 140, 147, 594 P.2d 1093, 1100 (1979)). In Lattin, the 

developers filed a plat that depicted a road called Burch Lane, but did not identify that road as a 

public easement or right-of-way and instead identified it with only a road centerline. 149 Idaho at 

501, 236 P.3d at 1261. The plat’s dedication language stated “any right, title and interest that [the 

developers] may have in the road rights-of-way as shown on this plat . . . is hereby dedicated to 

the use of the public.” Id. The County argued that Burch Lane was a public road because the 

developers must have intended a public easement or right-of-way somewhere on the map given 

the plat’s language that dedicated rights-of-way to the public and the fact that the legend had a 

separate type of dotted line for public rights-of-way. Id. at 501–02, 236 P.3d at 1261–62. We

noted that this interpretation was “unreasonable” and Burch Lane was not dedicated to the public 
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because the road was depicted identically to other private-road centerlines on the map and the 

plat did not specifically label Burch Lane using the dotted line style for easements or rights-ofway that was used in the legend. Id. Thus, despite the dedication language, the County could not 

presume the developers intended to dedicate Burch Lane because the developers did not label the 

road on the plat in a way that evidenced their clear and unequivocal intent. 

Similarly, in Ponderosa I, this Court did not presume a developer’s intent to dedicate a 

parcel when the plat provided no clear evidence of intent. 139 Idaho at 701–03, 85 P.3d at 677–

79. There, the developers dedicated “to the public, for the use of the public as highways the roads 

shown upon this plat.” Id. at 700, 85 P.3d at 676. The disputed parcel was labeled only as “Lake 

Access” and not specifically labeled as a road or a highway, and no other evidence of ownership 

was shown on the map. Id. at 701, 85 P.3d at 677. The district court had concluded that given

insufficient evidence of private ownership, there was a public dedication because it was more 

probable than not that the developers intended the “Lake Access” to be a common law dedication

to the public. Id. However, this Court characterized the district court’s decision as a “default 

conclusion” and held there was no developer intent to dedicate the parcel to the public because 

the plat provided no explicit dedication for “Lake Access” and no other clues as to developer 

intent for the parcel. Id. at 701–03, 85 P.3d at 677–79. Therefore, Ponderosa I also shows a court 

cannot presume intent; courts need affirmative evidence of a developer’s clear and unequivocal 

intent to dedicate land to the public.

Here, the 1954 Plat labeled the narrow strip of property dividing Block 3 as “Walk Way.” 

Labeling a parcel without designating ownership or whether the parcel is public or private does 

not show intent to dedicate land to the public. The walkway was not labeled as a public 

walkway. It was also not labeled as an easement or right-of-way, despite the 1954 Plat language 

that dedicated “all rights of way easements not heretofore dedicated.” Hence, the district court 

incorrectly presumed owner intent when it found that public dedication was the Smiths’ only 

possible intent just because the walkway was labeled and there were no other “rights of way 

easements” evident on the plat. 

Rowley argues that Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969), supports the 

district court’s conclusion. She contends that Smylie is similar to this case because there the 

Court held the grantor intended to dedicate a parcel due to the subdivision’s lay-out that showed

the disputed parcel was a continuation of a driveway, which is similar in this case to how the 
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walkway appears to be a continuation of the street. In Smylie, this Court stated: “When an owner 

of land plats the land, files the plat for record, and sells lots by reference to the recorded plat, a 

dedication of public areas indicated by the plat is accomplished.” 93 Idaho at 191, 457 P.2d at

430. However, as stated above, more recent case law clarifies that just filing the plat is not 

enough, public dedication also requires that the plat show the owners’ intent clearly and 

explicitly. Lattin, 149 Idaho at 500–02, 236 P.3d at 1260–62. Thus, the law requires more to 

show a clear intent for a public dedication than just filing a plat with labeled areas. Accordingly,

the holding in Smylie has been significantly narrowed by Ponderosa I and Lattin. The district 

court therefore erred when it held the walkway was a public dedication because otherwise the 

1954 Plat language would be “meaningless.”

In addition, the 1954 Plat’s language is not “meaningless.” This is because the language

“all rights of way easements not heretofore dedicated” includes utility easements that were not 

dedicated in the 1950 Plat. After all, the 1950 Plat only dedicated streets to the public. Thus, the 

1954 Plat dedicated all identified utility easements to the public because those were right-of-way 

easements that had not already been dedicated. Also, some utility easements in the 1954 Plat 

were not included in the 1950 Plat, so the owners dedicated the newly drawn easements in 1954. 

For example, an easement through lots 21 and 22 was not depicted on the 1950 Plat, but was 

depicted on the 1954 Plat. This means the 1954 Plat’s language does not only refer to the 

walkway, so the language is not meaningless.

Rowley argues these easements were not included in the 1954 Plat’s public dedication 

language because a utility easement is a private easement in gross for utility companies. She 

contends that the 1954 Plat’s legend with a dashed line for public utility easements and the 1950 

Plat’s dashed line labeled “easement for public utilities” indicate these were private easements in 

gross. However, the 1954 Plat’s dedication language indicates the opposite. That language states 

that the Smiths dedicated all “easements” to the public and these dashed lines were labeled in the 

1954 Plat’s legend as “public utilities easements.” Rowley cites Ross v. Dorsey, 154 Idaho 836, 

303 P.3d 195 (2013), to argue that dedicating private utility easements does not depend on the 

1954 Plat’s dedication language and instead depends on surrounding circumstances. In Ross, the 

Court recites the common law dedication standard and states that it must consider the 

development’s surrounding circumstances. 154 Idaho at 842–43, 303 P.3d at 201–02. This is a 

correct statement of law, but Rowley provides no surrounding circumstances that contradict the 
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facts that the public utilities easements were labeled as easements and that the dedication 

language gives “all rights of way easements” to the public. Thus, Rowley’s argument fails. 

The walkway could still be a public dedication if the Smiths showed a clear and 

unequivocal intent to dedicate it to the public elsewhere on the plat. The district court 

emphasized that the walkway was “clearly marked, labeled, and set apart from the surrounding 

parcels” and “is just as clearly a public right-of-way as is a street, absent some reason to 

conclude otherwise.” However, the plat markings do not show the Smiths’ clear intent to 

dedicate the walkway to the public. 

The walkway is not a street by name, nor is it wide enough to be a street. While a solid 

line delineates street and walkway borders, the streets also have a center line, which the walkway 

does not have. Thus, solid line borders do not make the walkway the same as the streets. Also, 

the lot lines in both plats are solid, and because the walkway goes between several lots it makes

sense that its borders are solid. The solid lines are a result of lot demarcation, and not a display 

of the Smiths’ intent to make the walkway a street extension. Thus, there is no clear and 

unequivocal intent that the walkway is a street or a continuation of a street. 

Also, the walkway is labeled as a “Walk Way” without any additional indication of intent 

to identify it as a right-of-way easement consistent with other plainly delineated right-of-way 

easements. For instance, there is a dashed line symbol for easements in the 1954 Plat’s legend. 

The walkway is not marked with this symbol. Because the walkway was not labeled as a street or 

right-of-way easement or otherwise, there is no evidence of a clear and unequivocal intent to 

dedicate the walkway to the public. 

In addition to the plat, courts examine the “surrounding circumstances and conditions of 

the development and sale of lots.” Saddlehorn Ranch Landowner’s, Inc. v. Dyer, 146 Idaho 747, 

752, 203 P.3d 677, 682 (2009). The surrounding circumstances include a subdivision’s CC&Rs 

and its over-all development scheme. Asbury Park, LLC v. Greenbriar Estate Homeowners’

Ass’n, Inc., 152 Idaho 338, 343, 271 P.3d 1194, 1199 (2012). Here, the CC&Rs do not mention 

anything about the walkway. As discussed, the walkway’s location in the subdivision does not 

show it is a continuation of a public street. Thus, there are not any surrounding circumstances to 

establish the Smiths had a clear and unambiguous intent to dedicate the walkway to the public. 

An owner’s intent is clear and unequivocal where there are no conflicting statements or 

contradictory documents. See id. at 344, 271 P.3d at 1200. A plat is only ambiguous when it 
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“equivocates as to whether the owner intended to dedicate the land.” Kepler-Fleenor v. Fremont 

Cnty., 152 Idaho 207, 211, 268 P.3d 1159, 1163 (2012). Here, no contradictory circumstances 

exist. The plat language does not equivocate; it dedicated streets and “rights of way easements” 

to the public. That language did not state that the walkway was dedicated to the public or that it 

was a street or right-of-way easement. Thus, there is nothing to suggest the Smiths’ intent was 

ambiguous. Given this, the first step of the common law dedication standard fails and as a matter 

of law there is no common law public dedication. We therefore vacate the district court’s grant 

of summary judgment to Rowley based upon a common law dedication. 

2. The owners did not make a statutory dedication.

The district court decided the Smiths made a common law dedication, so it did not 

consider whether the Smiths made a statutory dedication. We now address whether a statutory 

dedication occurred. Rowley further argues that a statutory dedication existed based on her 

common law dedication arguments. We freely review the construction of a statute. Lattin, 149 

Idaho at 500, 236 P.3d at 1260.

Statutory dedication is based on the statutes in effect when the owner dedicated the land. 

Paddison Scenic Props., Family Trust, LLC, v. Idaho Cnty., 153 Idaho 1, 3, 278 P.3d 403, 405 

(2012). In 1950 and 1954, two Idaho statutes were relevant. The first was section 49-2202:

Certification of Plat—Donation of Streets and Alleys—. . . The correctness of 

said plat must be certified to by the surveyor making the survey . . . and the owner 

or owners of the land included in said plat shall also make a certificate containing 

the correct description of the land with the statement as to their intentions to 

include the same in the plat, and must also make a deed of donation of all streets 

and alleys, shown on said plat . . . .

I.C.A. § 49-2202 (1932) (current version at I.C. § 50-1309).

The second was section 49-2205:

Effect of acknowledging and recording plat.—The acknowledgment and 

recording of such plat is equivalent to a deed in fee simple of such portion of the 

premises platted as is on such plat set apart for streets or other public use; or as is 

thereon dedicated to charitable, religious or educational purposes.

I.C.A. § 49-2205 (1932) (emphasis added) (current version at I.C. § 50-1312).

This statutory language requires that owners must provide a statement of their intent to 

include land in their plat and that land is dedicated when it is “set apart for streets or other public 
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use.” The current relevant statutory language has requirements that are very similar.

2 This Court 

has stated that the language in the current statutes “requires a plat that unequivocally dedicates a 

road to public use.” Lattin, 149 Idaho at 500, 236 P.3d at 1260. In Lattin, the Court reasoned that

despite statutory amendments, “the plat has always had to demark public rights-of-way in order 

to dedicate them.” Id. at 500–01, 236 P.3d at 1260–61. This Court also stated that “there is no 

reason why a statutory dedication in a plat would have to be less clear and unequivocal than a 

dedication by common law.” Id. at 501, 236 P.3d at 1261. Thus, the 1950 and 1954 statutes also 

require an owner’s public dedication to be clear and unequivocal. Here, because the Smiths did 

not specifically demark the walkway as a public walkway, right-of-way, or easement, the 1954 

Plat does not show that the Smiths unequivocally dedicated the walkway to the public. The 

dedication language did not refer to the walkway and the plat did not show the owners clearly 

intended a public dedication. We find there is no statutory dedication to the public as a matter of 

law. Because we hold the Smiths did not clearly intend to make a statutory or common law 

dedication to the public, no dedication existed. We vacate the district court’s grant of summary 

judgment to Rowley, and remand with directions to the district court to enter summary judgment 

in favor of ACHD. Thus, we do not reach the question of which entity owns the walkway.

B. Whether Rowley is entitled to attorney fees on appeal.

ACHD does not request attorney fees on appeal. Rowley argues she is entitled to attorney 

fees on appeal under I.C. § 12-117. We use a two-part test for I.C. § 12-117 on appeal: “the party 

seeking fees must be the prevailing party and the losing party must have acted without a 

reasonable basis in fact or law.” City of Osburn v. Randel, 152 Idaho 906, 910, 277 P.3d 353, 

357 (2012). Because Rowley is not the prevailing party, she is not entitled to attorney fees on 

appeal. 

IV. CONCLUSION

 2 I.C. § 50-1309. Certification of Plat—Dedication of Streets and Alleys . . .

The owner or owners of the land included in said plat shall make a certificate containing the correct 

legal description of the land, with the statement as to their intentions to include the same in the plat, and 

make a dedication of all public streets and rights-of-way shown on said plat, which certificate shall be 

acknowledged before an officer duly authorized to take acknowledgments and shall be indorsed on the 

plat.

I.C. § 50-1312. Effect of Acknowledging and recording plat

The acknowledgment and recording of such plat is equivalent to a deed in fee simple of such portion of 

the premises platted as is on such plat set apart for public streets or other public use, or as is thereon 

dedicated to charitable, religious or educational purposes.
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We vacate the district court’s grant of summary judgment to Rowley and remand this 

matter with directions to the district court to enter judgment in favor of ACHD. We award 

neither party attorney fees on appeal. Costs to ACHD.

Justices EISMANN, J. JONES, HORTON and Justice Pro Tem KIDWELL CONCUR.