City of Cabot v. Brians

John B. Robbins, Judge.

Appellant, the City of Cabot, ap-udge. quieted title to a 60-foot-by-122-foot parcel of land in appellees, Robert and Louise Brians. The City argued that the parcel had been dedicated to it in a plat and bill of assurance approved by the City and filed by the developer in 1994. We agree and reverse and remand.

The parcel at issue is located in the Crestwood Subdivision, Phase II, in Cabot, Arkansas. The subdivision was developed by Blount Farms & Investments Corporation and consists of thirty-five lots and three named streets. Easement strips of six feet or twelve feet in width are located on lots throughout the subdivision.

The northeast corner of the subdivision is occupied by Lot 56, which is situated on a cul-de-sac at the intersection of two streets. Lot 55, which was purchased by appellees in 1995, is south of Lot 56 on the other side of the cul-de-sac. Lying between the two lots is a 60-foot-by-122-foot parcel that the developer’s plat refers to as a “60' Access Easement.” A general note on the plat states that this easement is “reserved” for a future right-of-way.

In December 2002, appellees sued the City and the developer, Blount Farms, claiming that, after they purchased their lot in 1995, they began using the parcel as their own. They asked that title to the parcel be quieted in them by virtue of seven years of open, visible, notorious, distinct, exclusive, and hostile possession. Blount Farms was served with process but did not answer the complaint. As a consequence, a default judgment was entered against Blount, stating that it had no interest in the parcel. The City responded, however, and claimed that the parcel had been dedicated to it. Thereafter, a bench trial was held to determine if the City had an interest in the parcel. As the trial court recognized, if the City did have an interest, appellees could not claim the parcel by adverse possession because Ark. Code Ann. § 22-1-204 (Repl. 2004) provides:

No title or right of possession to realty by an incorporated town, city of the second class, city of the first class, school district, county, or the state may be defeated in any action or proceeding because of adverse possession.

Following the presentation of the evidence, the trial court found that the developer had reserved the parcel for itself, and, thus, the City had no interest in it. Title was therefore quieted in appellees, and the City now appeals.

Quiet title actions have traditionally been reviewed de novo as equity actions. See, e.g., White River Levee Dist. v. Reidhar, 76 Ark. App. 225, 61 S.W.3d 235 (2001). However, we will not reverse the trial judge’s findings in such actions unless the findings are clearly erroneous. See id. A finding of fact is clearly erroneous when, although there is evidence to support it, we are left with the definite and firm conviction that a mistake has been committed. Id.

The City argues first that the developer’s plat and bill of assurance unambiguously dedicated the parcel to the City. Alternatively, the City argues that, if the dedicatory instruments were ambiguous, the dedication was borne out by surrounding circumstances. We agree with both of these arguments.

As previously stated, the subdivision plat designated the 60-foot-by-122-foot parcel as an “access easement” and noted that this easement was reserved for a future right-of-way. The bill of assurance, which was filed by the developer prior to appellees’ purchasing their lot, contained the following pertinent language:

There are strips of ground shown on said plat and marked “Easements” reserved for the use of public utilities and or for drainage purposes, subject at all times to the proper authorities and to the easement herein reserved. Owners of the lots shall take title subject to the right of public utilities and the public.

The filing of this Bill of Assurance and plat for the record in the office of the Circuit Clerk & Recorder of Lonoke County, Arkansas shall be a valid and complete delivery and dedication of the streets and easements shown on the said plat.

(Emphasis added.) When the plat and bill of assurance are read together, the City avers, they unambiguously dedicate the parcel in question to the City.

A dedication has been defined as the donation of iand or the creation of an easement for public use. Black’s Law Dictionary 442 (8th ed. 2004). A dedication may be accomplished by express written instrument, see 26 C.J.S. Dedication § 15 (2001), or often by maps or plats. See 26 C.J.S. Dedication § 17 (2001); 23 Am.Jur. 2d Dedication § 26 (2d ed. 2002). Plats or instruments by which dedications are made are construed as any other writing to ascertain and give effect to the intention of the dedicator. See generally 26 C.J.S. Dedication §§ 66, 67 (2001). Plats should be construed fairly and reasonably, and unambiguous language should be given its manifest meaning. 26 C.J.S. Dedication § 67; see also Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997) (construing a bill of assurance primarily by reference to the plain language of the document).

The plain language of the bill of assurance in this case provided that its filing, along with the plat, operated as a “valid and complete delivery and dedication of the streets and easements” shown on the plat. (Emphasis added.) The 60-foot-by-122-foot parcel is shown on the plat as an easement. Thus, upon the filing of the bill and the plat in 1994, the easements on the plat, including the parcel in question, were dedicated.

Appellees argue, however, that the dedicated easements referred to in the bill of assurance are the utility easements. However, this contention ignores the bill’s plain language dedicating the “easements” shown on the plat without regard to whether they are utility easements. Appellees also argue that the parcel was not dedicated because it was not identified as a street. However, under circumstances like those in this case, it is unnecessary that the areas to be dedicated be marked as streets; the dedication is sufficient if it appears, from a consideration of the plat as a whole, with reference to the surrounding circumstances, that the spaces were intended to be devoted to public use. City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993).

The evidence at trial offered a clear indication that the parcel was intended for public use. First, the bill itself states that the owners of the subdivision lots take title subject to the right of public utilities “and the public.” (Emphasis added.) Second, at trial, the City called witnesses John Ryan Benefield and James Von Tungeln, who testified that the City and the developer obviously intended that the parcel be dedicated to the City for use as a future street or passageway. Benefield, a former city engineer, said that, although he was not employed with the City when the subdivision plat was approved in 1994, his employment with the City in 2003 and 2004 required him to assist the City Planning Commission with subdivision approval, and he was familiar with the Crestwood development. According to him, the plat’s reference to the parcel as a 60-foot access easement meant that “in the future, this area would be a city street used to access property to the east of this subdivision.” He observed that, although the area to the east of the subdivision was undeveloped, the City normally took note of whether there was adjacent, undeveloped property when viewing a subdivision plat and considered, among other things, whether there was access to unplatted pieces of land and whether there were multiple outlets to existing streets, which were important for utility service, emergency vehicles, and future subdivision. As an example, Benefield explained that, in the development of the first phase of Crestwood Estates, a piece of land, or “stub street” was left so that future development could be accessed and, in fact, under current regulations, such a stub street was required. Ben-efield stated that reserving an access area as a future right-of-way would allow it to be developed later as a street if needed. As he noted, the dimensions of the access easement were consistent with the City’s streets.

Von Tungeln, an urban planning expert, testified that he had served as a consultant for the City in the past. Although he was not personally involved in the plat approval for this subdivision, he was familiar with the development. According to him, the 60-foot access easement mentioned on the plat was a case of the City’s pursuing a policy of having multiple entrances and exits to subdivisions where possible. Specifically, he testified:

[IJt’s my opinion that they at that time wanted to leave open the possibility of connecting this subdivision with future development, saw no reason to actually build a street and pave it at that point and have the pavement sitting there, but instead, chose to have an access easement platted so that in the future, if that became a requirement and they did in fact connect this subdivision with other subdivisions, that the right-of-way would be there.

Von Tungeln stated that this was “done quite often.” He also interpreted the plat’s statement that the easement was reserved for a future right-of-way to mean that the Planning Commission intended the possibility that a connecting street be left open.

The above testimony, in conjunction with the language in the plat and bill of assurance, reveal that the parcel was intended for public use. Benefield and Von Tungeln offered virtually undisputed testimony that the developer and the City must have considered the parcel as dedicated. Further, appellees presented no witnesses of their own and did not rebut Benefield’s or Von Tungeln’s testimony in any meaningful respect.

Appellees further assert that the statement on the plat that the easement was “reserved” meant that it was reserved for the developer. It is true that, when a developer reserves a parcel of land, it may indicate his intention that the designated portion not be dedicated to the public. See Arkansas State Highway Comm’n v. O.& B., 227 Ark. 739, 301 S.W.2d 5 (1957); Fort Smith & Van Buren Bridge Dist. v. Scott, 111 Ark. 449, 163 S.W. 1137 (1914). However, the surrounding circumstances must be considered in determining what the developer meant by using the word “reserved.” See, e.g., O.&B., supra; Scott, supra. In O.&B., the developer marked part of a plat as “reserved by owner for sale to Arkansas State Highway Department” and “reserved for highway use.” The supreme court held that the parcels were not dedicated to the public, noting that it would be incongruous to both donate land to the public and reserve it for sale. In Scott, developers marked a strip of land with the notation “reserve.” The supreme court held that the strip was not dedicated to the public because the parties in interest, including the city, had recognized the strip as the developers’ private property and the developers and their successors had claimed the strip and exercised acts of ownership over it.

The circumstances in those cases differ markedly from those in the case at bar. Here, the developer used no language such as that in O. &B. that would indicate a clear intention to reserve the parcel to himself, nor did the developer exercise any acts of ownership over the parcel after the plat was filed, as in Scott; in fact, the developer in this case failed to appear and defend a lawsuit that asserted a claim to the reserved area.¹ Further, there is no proof beyond' speculation to support the court’s assumption that the developer reserved the parcel for the purpose of developing the property to the east. At the time of trial, the property to the east remained undeveloped, and there was no evidence that the developer had ever owned it. Additionally, unlike the O.&B. and Scott cases, here, we have a plat designating the parcel as an easement and future right-of-way and a bill of assurance expressly stating that easements on the plat were dedicated. Finally, we note that any doubt or ambiguity in the meaning of a dedicatory plat is construed most strongly against the dedicator and to the reasonable advantage of the grantees of the dedicated use, i.e., so as to benefit the public rather than the donor. See 11A Eugene McQuillen, The Law of Municipal Corporations § 33.26 (Rev. 3d ed. 2000); 26 C.J.S. Dedication § 67; Ranier Av. Corp. v. City of Seattle, 80 Wash. 2d 362, 494 P.2d 996 (1972), cert. denied, 409 U.S. 983 (1972).

Appellees also contend that the City did not confirm or accept the supposed dedication by passing an ordinance as required by Ark. Code Ann. § 14-301-102 (1987), which provides:

No street or alley which shall be dedicated to public use by the proprietor of ground in any city shall be deemed to be a public street or alley, or to be under the care and control of the city council, unless the dedication shall be accepted and confirmed by an ordinance specially passed for that purpose.

Whether or not the parcel in the case at bar can be described as an existing street or alley, our courts have recognized that, despite the language in this statute, whenever a dedicator-owner of land makes and files a plat and thereafter lots are sold with reference to it, such constitutes an irrevocable dedication of any street or passageway for public use shown or indicated on the plat. See City of Sherwood, supra; Wenderoth v. City of Fort Smith, 256 Ark. 735, 510 S.W.2d 296 (1974); see also Arkansas State Highway Comm’n v. Sherry, 238 Ark. 127, 130-31, 381 S.W.2d 448, 451 (1964) (stating that an owner of land who sells lots by reference to a plat, makes an irrevocable dedication of the streets, alleys, squares, parks, and “other public places marked as such on the plat” to the public use and that the dedication “becomes irrevocable the moment that these acts occur”); Gowers v. City of Van Buren, 210 Ark. 776, 780, 197 S.W.2d 741, 743 (1946) (stating that, where lots have been sold by reference to a plat, “no formal acceptance by the city” is necessary because, by that act, the dedication becomes irrevocable). In Bushmiaer v. City of Little Rock, 231 Ark. 848, 333 S.W.2d 236 (1960), our supreme court addressed the same argument that appellees now make and stated:

Relative to this point, appellants rely upon [14-301-102], which provides that streets and alleys, dedicated to public use, shall be accepted by the city through ordinance. The record does not reflect that the dedication, here in question, has been accepted by city ordinance. The same argument was made in Brewer v. City of Pine Bluff, 80 Ark. 489, 97 S.W. 1034 (1906). As previously pointed out, this land was platted, the streets dedicated, lots sold by reference to the plats, and the public has used the street for many years. In the Brewer case, it was shown that the dedication was never accepted by city ordinance, but this Court said:

“But the question is not important in this case, for, as before stated, the dedication of it as a public way has now become irrevocable, and the city can accept it at any time. Meanwhile the public has the right to use it, and the plaintiffhas no right to obstruct it.”

Bushmiaer, 231 Ark. at 855, 333 S.W.2d at 241.

Although Bushmiaer and Brewer involved situations where, at the time of the lawsuit, there had been public use of the disputed area — unlike the situation in the case at bar — this distinction is not critical. The dedication becomes irrevocable upon the sale of the lots. See generally Wenderoth, supra, where a dedication was held to have occurred even though there had been no public use of the parcel in question. Moreover, our courts have declared that, once the dedication has occurred, the city may accept it at any time or when the necessity should arise. See City of Sherwood, supra; Sherry, supra; Bushmiaer, supra; Gowers, supra.

In light of these authorities, the City need not have formally accepted or confirmed the dedication of the parcel under the circumstances of this case or made immediate use of the parcel once acquired. The irrevocable dedication occurred when lots were sold by reference to the plat, and the City, at that point, could accept the dedication at any time. Such dedication and right to accept it invested the City with, at the very least, a “right to possession” of the parcel, which, under Ark. Code Ann. § 22-1-204, would bar appellees’ adverse-possession claim. See generally Wood v. City of El Dorado, 237 Ark. 681, 375 S.W.2d 363 (1964); Bushmiaer, supra (recognizing that an adverse claimant cannot acquire title to property that has been dedicated to the city).

Based on the foregoing, we conclude that the trial court clearly erred by quieting title to the parcel in appellees. We therefore reverse and remand this case for entry of an order consistent with this opinion.

Reversed and remanded.

Hart, Neal, Vaught, and Crabtree, JJ., agree. Griffen, J., dissents.

1 The dissent’s position is that the developer reserved an “access easement” for a “future right-of-way” across the subject property. However, if the developer continued to own this property it is illogical that it needed to also “Reserve” it for some particular purpose.