NOTE: THIS OPINION HAS BEEN REVERSED

We write this on Christmas Day because Division Two has given us a present: a case containing a citation from “Ariz. Terr. 1895.” To those of a certain turn of mind this is warmly comforting and deeply satisfying – as if we had, finally, after wandering though a cold, bleak house, found the room where the fireplace glows and the tree glitters and the hot chocolate steams in its mugs. The old-fashioned lawyer rejoices to find that in at least some areas of the law “common law” and “precedent” still refer to something more than recent sociopolitical invention. Even if the precedent is cited wrongly.

This is a case about easements to real property. A dirt road ran across the property, connecting public roads to the northwest and southeast. Over the years the owner sold the property piecemeal – first the eastern part of the property, then the middle, then the western. The first two deeds were subject to an easement for the dirt road, that for the western part included “an easement over” it. The purchaser of the middle property later sold it to the Dorseys, who decided to block the road. Neighbors sued, claiming an easement, and the trial court granted them summary judgment.

This sort of thing happens surprisingly often in Arizona. People buy a piece of semi-rural property and plan their dream home before finding out that somebody claims an easement over that little dirt track that runs right through where their living room was going to be. Its often a prescriptive easement, so it doesn’t show up in the deeds. Why this appurtenant easement didn’t the opinion doesn’t explain; it does mention that the Dorseys filed a third-party claim against their seller because she allegedly hadn’t told the about the easement, it doesn’t mention why they didn’t also sue their title company.

The interesting thing about this case, though, is that the neighbors who sued were not the owners of the eastern and western portions of the original property. Instead, they owned “neighboring” parcels (we aren’t told just where they were in relation to the Dorseys; an older tradition of opinion-writing would have included a copy of one of the maps in evidence but perhaps that isn’t possible or practical – or cost-effective for the publishers – in the electronic age). The neighbors had to prove that they were beneficiaries of the easement – in other words, that the original owner had intended to dedicate the roadway easement to public use.

Usually, doing that means proving it by “clear and unequivocal” evidence. But trial court and the Court of Appeals’ majority held that when the easement concerns a road there is a rebuttable presumption of public intent (this is where we get Evans v. Blankenship, 4 Ariz. 307, 39 P. 812  (Ariz. Terr. 1895)) and that no sufficient evidence rebutted the presumption in this case (mostly, it seems, because the original deeds didn’t specifically say that the easements were private).

The dissent, which is longer than the majority opinion, argues that that isn’t the law. It contends, in essence, that the cases on which the majority relies either didn’t address this issue or dealt with roadways clearly designed, platted, and/or marked for public use. It also argues that since an easement is presumed to be for the benefit of the grantor, all that the evidence shows is that the original owner wanted to keep, for himself and his successors on the western portion of the property, the right to use the dirt road across the rest of it to get to the public road on the other side.

The dissent surely has the better of the argument. Proving public use requires more evidence, not less. To suggest that public access over private property is either the legal norm or the default intent is strange indeed. If every dirt road on a private survey map is public unless somebody expressly said that it wasn’t then a lot of us could drive through a lot of people’s living rooms tomorrow.