                 IN THE SUPREME COURT OF THE STATE OF IDAHO
                                Docket No. 40672
TERRIE H. ROWLEY,                                   )
                                                    )
      Plaintiff-Respondent,                         )
                                                    )
v.                                                  )
                                                             Boise, January 2014 Term
                                                    )
ADA COUNTY HIGHWAY DISTRICT,                        )
                                                             2014 Opinion No. 44
                                                    )
      Defendant-Appellant,                          )
                                                             Filed: April 8, 2014
                                                    )
and                                                 )
                                                             Stephen W. Kenyon, Clerk
                                                    )
CANUTA D. BOEREM, an unmarried                      )
individual; and CITY OF BOISE,                      )
                                                    )
      Defendants.                                   )

        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



                                                1
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



                                                 2
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



                                                 3
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.

                                                        4
       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


                                                 5
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-of-
way 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

                                                 6
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

                                                  7
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

                                                  8
“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




                                                  9
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.




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