1 

SUPREME COURT OF ARIZONA

En Banc

PAUL KADLEC and RACHEL KADLEC, ) Arizona Supreme Court 

husband and wife; DUANE HOWELL ) No. CV-10-0028-PR 

and BRENDA HOWELL, husband and ) 

wife, ) Court of Appeals 

 ) Division Two 

 Plaintiffs/Appellees, ) No. 2 CA-CV 09-0053 

 ) 

 v. ) Pima County 

 ) Superior Court 

DANIEL DORSEY and SHERRI DORSEY, ) No. C20076040 

husband and wife, ) 

 ) 

 Defendants/Appellants. ) 

 ) O P I N I O N

__________________________________) 

Appeal from the Superior Court in Pima County 

The Honorable Virginia C. Kelly, Judge

REVERSED AND REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division Two

223 Ariz. 330, 223 P.3d 674 (2009) 

VACATED

________________________________________________________________

LAW OFFICE OF CLOUD LLC Tucson

 By Bradley G. A. Cloud

Attorney for Paul Kadlec and Rachel Kadlec

VERNON E. PELTZ Tucson

 By Vernon E. Peltz

Attorney for Duane Howell and Brenda Howell

HINDERAKER & RAUH, P.L.C. Tucson

 By Adam Weisman

Attorneys for Daniel Dorsey and Sherri Dorsey

GUST ROSENFELD P.L.C. Phoenix

 By Charles W. Wirken
2 

Attorney for Amicus Curiae Land Title Association of Arizona

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson

 By Robert H. Gilbreath, Deputy County Attorney

Attorney for Amicus Curiae Pima County Board of Supervisors

________________________________________________________________

R Y A N, Justice

¶1 We today hold that the mere creation of a roadway 

easement does not raise a presumption that the road has been 

dedicated for public use. 

I 

¶2 The critical facts are not in dispute. Richard 

Turigliatto owned land north of Tucson, which he split into 

three lots. A dirt roadway traversed the three lots, connecting 

to public roads on either end. As he sold the first two lots, 

Turigliatto retained an easement across them. When he sold the 

third and westernmost lot, Turigliatto retained ownership of the 

roadway. The parcel that Daniel and Sherri Dorsey (“the 

Dorseys”) ultimately purchased was one of the two originally 

conveyed lots subject to the roadway easement. 

¶3 Paul and Rachel Kadlec and Duane and Brenda Howell 

(collectively “the Kadlecs”) own property nearby and had used 

the roadway. When the Dorseys blocked their access, they filed 

this action, alleging, among other things, that they had a 

prescriptive easement and seeking a declaratory judgment that 
3 

they had “the right to the reasonable use and enjoyment of the 

right-of-way easement across the Dorsey Property.” 

¶4 The Kadlecs moved for summary judgment, arguing that 

the Dorseys’ land was “subject to an easement” and that they 

were the beneficiaries. In a cross-motion, the Dorseys 

contended that the court should presume the easement was 

intended to benefit only the land Turigliatto retained after the 

sale of the Dorseys’ parcel. 

¶5 The superior court granted summary judgment to the 

Kadlecs on different grounds. The court ruled that because the 

original deed referred to the roadway and made no statement 

limiting its use to a particular beneficiary, the deed had 

effected a public dedication. The court found that “[a]n 

easement which consists of a roadway[,] by its very nature 

invites public use unless the dedicator’s intent was otherwise.” 

¶6 In a divided opinion, the court of appeals affirmed. 

Kadlec v. Dorsey, 223 Ariz. 330, ___ ¶ 1, 223 P.3d 674, 675 

(App. 2009). The majority recognized that, ordinarily, a public 

dedication is not presumed. Id. at ___ ¶ 6, 223 P.3d at 676. 

However, like the superior court, the majority concluded that 

when an easement is a road, dedication to the public is 

presumed. Id. at ¶ 7. In dissent, Judge Brammer argued that 

such a presumption runs contrary to a long line of Arizona 
4 

cases. Id. at ___ ¶ 11-20, 223 P.3d at 677-81 (Brammer, J., 

dissenting). 

¶7 We accepted review of this issue of statewide 

importance, see ARCAP 23(c), and have jurisdiction under Article 

6, Section 5(3) of the Arizona Constitution and Arizona Revised 

Statutes section 12-120.24 (2003). 

II 

¶8 “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.” Pleak v. 

Entrada Prop. Owners’ Ass’n, 207 Ariz. 418, 423-24 ¶ 21, 87 P.3d 

831, 836-37 (2004) (citing Allied Am. Inv. Co. v. Pettit, 65 

Ariz. 283, 287, 179 P.2d 437, 439 (1947) and Restatement (Third) 

of Property: Servitudes § 2.18(1) (2000)). Dedication is not 

accomplished by particular words or forms of conveyance, but 

does require “full[] demonstrat[ion] [of] the intent of the 

donor to dedicate.” Id. (citing Allied Am. Inv. Co., 65 Ariz. 

at 287, 179 P.2d at 439); see also City of Scottsdale v. Mocho, 

8 Ariz. App. 146, 149, 444 P.2d 437, 440 (1968) (evidence of 

public dedication must be “clear, satisfactory and unequivocal”) 

(citation omitted). “Dedication is not presumed nor does a 

presumption of an intent to dedicate arise unless it is clearly 

shown by the owner’s acts and declarations.” City of Phoenix v. 

Landrum & Mills Realty Co., 71 Ariz. 382, 386, 227 P.2d 1011, 
5 

1013 (1951). Rather, “[t]he burden of proof to establish a 

dedication is on the party asserting it.” Id. 

¶9 The court of appeals distinguished this settled case 

law because the easement in question was a road. Kadlec, 223 

Ariz. at ___ ¶ 7, 223 P.3d at 676. It relied principally on 

Hunt v. Richardson, in which the court said that a road, “by its 

very nature invites public use unless the dedicator’s intent was 

otherwise.” Id. (quoting 216 Ariz. 114, 120 ¶ 17, 163 P.3d 

1064, 1070 (App. 2007)). The court of appeals’ reliance on that 

statement in Hunt is misplaced. As noted by the dissent, the 

quoted language “was relevant only to . . . [the] argument the 

road did not serve a proper public use because it was only used” 

by persons travelling to a limited number of properties. Id. at 

___ ¶ 16, 223 P.3d at 678 (Brammer, J., dissenting). 

¶10 The effect of the decision below is that, unless 

proven otherwise, a private road becomes public whenever the 

property through which the road runs is subject to an easement. 

But no Arizona case has so held. To the contrary, we have 

looked to the affirmative actions of the grantor to determine 

whether land has been dedicated to the public. See County of 

Yuma v. Leidendeker, 81 Ariz. 208, 213-14, 303 P.2d 531, 535-36 

(1956) (emphasizing the proprietor’s dedicatory statement, which 

was signed, filed and recorded, and subsequent references to 

such statement in transactions involving the sale of the land at 
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issue); Evans v. Blankenship, 4 Ariz. 307, 314-15, 39 P. 812, 

813 (Terr. Ct. 1895) (holding that recording a survey map 

indicating that land was for public use and making sale with 

reference to it “show[ed] an irrevocable dedication of the land 

in question to the public”). Evans and Leidendeker, as we noted 

in Pleak, involved sales of land with reference to “a recorded 

plat containing the dedication.” 207 Ariz. at 424 ¶ 23, 87 P.3d 

831, 837 (emphasis added). Nothing in these cases supports the 

proposition that merely because land can be properly dedicated 

to public use it has been. 

¶11 Preserving the burden of proof on the party asserting 

a dedication to public use comports with the Restatement (Third) 

of Property: Servitudes, which recognizes both that evidence of 

an offer to dedicate to the public is required, id. § 2.18 cmt. 

e, and that, absent such evidence, courts presume the creators 

of easements intend to burden only the estates or other 

interests they otherwise own, id. § 2.5 cmt. a (“The intent of 

the parties determines which estates or servitude interests are 

burdened or benefited by a servitude. . . . [T]he normal 

inference is that the parties intend to burden or benefit the 

estates or other interests they own in the property.”). We 

therefore hold that the court of appeals erred in presuming a 

dedication for public use and that the burden of establishing a 

public dedication remained on the Kadlecs. 
7 

III 

¶12 Summary judgment is appropriate when there is no 

genuine issue of material fact for a jury to resolve and the 

moving party is entitled to judgment as a matter of law. See 

Orme Sch. v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-

09 (1990). 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. 

First, in contrast to Evans and Leidendeker, no 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. See Restatement (Third) of Property: Servitudes 

§ 2.5 cmt. a. 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. 

IV 

¶13 For the foregoing reasons, we vacate the court of 

appeals’ decision and reverse the superior court’s decision 
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granting partial summary judgment to the Kadlecs and Howells. 

We remand for further proceedings consistent with this opinion.1

 _____________________________________

 Michael D. Ryan, Justice

CONCURRING:

_____________________________________

Rebecca White Berch, Chief Justice

_____________________________________

Andrew D. Hurwitz, Vice Chief Justice

_____________________________________

W. Scott Bales, Justice

_____________________________________

A. John Pelander, Justice 

                                                           

1

 Because our holding does not resolve the Kadlecs’ claim for 

prescriptive easement rights, we decline to grant the Dorseys’ 

request for attorney’s fees pending further proceedings in the 

superior court.