Daily Development for Friday, March 26, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri email@example.com
EASEMENTS; CREATION; DEDICATION; IMPLIED DEDICATION: Attaching plat to deed is not dedication of all roads shown on the plat.
Skates v. Bryant, 863 So.2d 907 (Miss. 2003).
Bryant owned a parcel of land that had a north boundary contiguous with the south boundary of a highway. Bryant built Quasar Drive down the east side of the parcel for access to a trailer park that he operated on the back (southern) portion of the parcel. He had a subdivision plat prepared for the land that included Quasar Drive as part of the subdivision, but never signed or filed the plat.
In 1977, Bryant sold the southern part of the parcel, containing the trailer park, to McManus. The deed contained a legal description of the land being conveyed to McManus. The description did not cover the area of Quasar Drive. The deed also stated that the land being conveyed to McManus was “further described by map or plat prepared by Richard T. Logan, P.E. dated May, 1977, a copy of which is attached hereto as Exhibit ‘A’ and made a part hereof.” An unsigned copy of the subdivision plat that Bryant had prepared was attached to the deed as an exhibit.
McManus continued to operate the trailer park on the property. Residents of the trailer park, as well as meter readers, school buses and the postal service used Quasar Drive for access to the trailer park. The county had occasionally cut the grass on the road, put up a stop sign and patched potholes at county expense. A county map showed Quasar Drive as a public road. McManus operated the trailer park for oven ten years.
After McManus’ death in 1984, Skates bought the property and the property ceased being used as a trailer park. Skates had access to the property over other streets. Quasar Drive became overgrown with kudzu and impassable. Skates constructed a warehouse on the property and he and others began using Quasar Drive for access to the warehouses.
Bryant, meanwhile, had conveyed the northern portion of the land fronting the highway (that is, between the highway and the warehouses) to his son, Jeffery. Jeffery had built a residence on the property. Jeffery wrote Skates a letter in 1997 claiming that Quasar Drive was private property and was only for private access to Bryant’s residence. Skates and others nevertheless continued to use Quasar Drive for access to the warehouses.
Bryant filed a complaint in Adams County Chancery Court to determine whether Quasar Drive was a public or private road. Skates argued, first, that there had been a common-law dedication of Quasar Drive and thus it was a public road, and second, that a public road had been established by adverse possession. The chancellor determined that a common-law dedication of the street had not been made and that the use of the road had been permissive, not hostile, and that therefore adverse possession had not occurred. The Mississippi Court of Appeals affirmed.
The Mississippi Supreme Court granted Skates’ writ of certiorari, but then, in an opinion by Justice Waller, the Supreme Court, in a 7-1 en banc decision, affirmed.
The court first stated that whether a common-law dedication has occurred depends on the intent of the grantor. In this case Bryant may have considered creating a subdivision prior to his conveyance to McManus, but the deed to the attached plat was intended to assist in the description of the land and was not necessarily a step in the creation of the subdivision. Skates did not prove that the board of supervisors had ever officially designed Quasar Drive as a public road in their minutes.
In regard to the claim of adverse possession by the public, there was insufficient evidence of hostile use. “When a road is not proven to be a dedicated public road under statute, there must be more evidence than mere travel by the public on the road. The owner must ‘know of and acquiesce in the adverse claim, or the use must be so open, notorious, visible and uninterrupted that knowledge and acquiescence will be presumed.’” The only fact that showed hostile use was that Skates and others continued to use the road after Jeffery Bryant’s 1997 letter to Skates, which was less than ten years before Bryant filed the complaint. The court held that while there was conflicting evidence, sufficient facts existed to support the chancellor’s decision. Justice McRae wrote a vigorous, lengthy and heavily annotated dissent.
Reporter’s Comment 1: This case only addresses common-law dedication of a public road. A Mississippi landowner also can make a statutory dedication to a municipality under Miss. Code Ann. § 21-19-63. This statute provides that if a municipality adopts an ordinance requiring approval of subdivisions, and an approved subdivision plat is filed, then all streets, roads, alleys and other public ways shown on the plat are dedicated to public use. One difference between the two types of dedication is that the statutory dedication is made regardless of the intent of the owner if the statutory conditions are met. A recent case finding a statutory decision is Nettleton Church of Christ v. Conwill, 707 So.2d 1075 (Miss. 1997), in which the court held that the filing of a plat showing a public square constituted the statutory dedication of a public square to the municipality.
A case in which the court found that common-law dedication had not occurred because of a lack of intent is Magnolia Memorial Gardens, Inc. v. Denton, 317 So.2d 38 (Miss. 1975). The Magnolia Gardens court noted that a common-law dedication is made for the benefit of the public, not for a restricted group of persons. In Skates v. Bryant, the court noted that even if Bryant intended to convey to McManus a right to use Quasar Drive, this right was only for the benefit of the trailer park and not the public at large.
Reporter’s Comment 2: In prior cases, the Mississippi Supreme Court has recited the following maxim: “If the owner of urban property has laid it off into lots intersected by streets, and sells the same with reference thereto, or with reference to a map or plat dividing it into squares, streets and alleys, such action will amount to a dedication of the streets and alleys to the public.” The court distinguished this line of cases on the basis that the conveyance in this case was accomplished by the filing of a deed and not by the filing of a subdivision plat. According to the court, the reference to the plat in the deed and the attachment of the plat as a exhibit to the deed was not sufficient proof of intent to establish a subdivision and dedicate the road. In the dissent, Justice McRae argues vigorously that the attachment of the plat and the reference in the deed to the plat, together with other facts, should be sufficient to establish common-law dedication. The majority opin ion shows that the court will require a higher level of proof of intent to make a common-law dedication than existed in this case.
Reporter’s Comment 3: The court emphasized that Skates had not proven that the board of supervisors had officially designated Quasar Drive as a public road in their minutes. The fact that he did not introduce the minutes does not mean that such minutes did not exist. Anyone who has tried to go back through the minutes of counties or municipalities to find an official designation of a public road knows that such a task is like trying to find a needle in a haystack. Rarely is there any type of index; the best one can hope for is to narrow the time frame in which to look. Sometimes a public works department will have unofficial records of the dates when roads were accepted.
Note: George Bryant named the road after Quasar televisions, which he sold.
Editor’s Comment 1: The editor wonders why the parties didn’t consider that an appurtenant easement was created by implication when the map was attached to the original deed. Why was it so clear that Bryant intended only a personal easement? In fact, the usual assumption is that when an access easement is set forth in a deed, it is an appurtenance that runs to subsequent parties. Even if we didn’t have the plat, the existence of the road and its reasonable necessity would have led many courts to conclude that an appurtenant easement by implication had arisen. Although the road was no longer as necessary as it was, this is not a problem for these kinds of easements (unlike easements arising by strict necessity.)
Perhaps the reason is that Stakes really wanted access for his other parcels as well as that which had been sold by Bryant, and therefore went for the big enchilada, leaving the little taquito argument alone because of the fear that the court would seize upon it to solve the immediate analytic problem, but still leave Stakes with less than he wanted.
Editor’s Comment 2: Compare: St. Charles Parish School Board v. P & L Investment Corporation, 674 So.2d 218 (La. 1996) (DD for 11/15/(Public may acquire interest in land on which road is built through "tacit dedication," where landowner is aware that public is making permanent improvements in roadway and public uses the roadway for three years.) For other DD’s involving this issue, see: General Auto Service Station v. Maniatis, 765 N.E.2d 1176 (Ill.App. 1 Dist. 2002) (DD for 8/6/00) (The implied dedication of a dead end alley will not be found without substantial evidence of offer and acceptance. The implied offer expires upon the death of the alleged offeror, and acceptance must be manifest by that time.); Christiansen v. Gerrish Township, 608 N.W.2d 83 (Mich. App. 2000) (DD for 9/18/00) (Dedication of a roadway to the public on a subdivision plat constitutes a "continuing offer" of dedication for as long as 37 years, and public entities acceptance 37 years later is therefore
deemed a "timely" acceptance within meaning of common law requirement).Tungsten Holdings, Inc. v. Parker, 938 P.2d 641 (Mont. 1997) (DD for 12/24/1997)(Mere circumstantial evidence that a lot was intended as a roadway is not sufficient to dedicate lot for that use, without more explicit evidence. )
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