
    85 P.3d 675
    PONDEROSA HOME SITE LOT OWNERS, Plaintiff, and Harry Peterson and Margaret Peterson, husband and wife, Plaintiffs-Counterdefendants, and Ralph Stalsberg and Ruth Stalsberg, husband and wife; and Clifford Dove and Steve Dove, Plaintiffs-Counterdefendants-Appellants, v. GARFIELD BAY RESORT, INC.; Verl E. Thayer and Rita S. Walker Thayer, husband and wife, Defendants-Counterclaimants-Respondents, and John Doe 1 through 10, being officers and directors of Garfield Bay Resort, Inc., Defendants-Respondents. Carol Randolph, Plaintiff, v. Rita S. Walker Thayer, Verl E. Thayer, Garfield Bay Resort, Inc., Defendants-Counterclaimants-Third Party Plaintiffs-Respondents, and Jane Doe Dove I, Jane Doe Dove II, Harry Peterson, Margaret Peterson, The Estate of Harry Peterson, Defendants, and Steve Dove, Cliff Dove, Ralph Stalsberg, Ruth Stalsberg, Defendants-Appellants. Rita S. Walker Thayer, Verl E. Thayer and Garfield Bay Resort, Inc., Counterclaimants-Third Party Plaintiffs-Respondents, v. Carol Randolph, Virginia (MC Williams) Frisbie, Orveline Mary (MC Williams) Frisbie, and Lola (MC Williams) Newlin, Counterdefendants-Third Party Defendants.
    No. 27807.
    Supreme Court of Idaho, Coeur d’ Alene,
    October 2003 Term.
    Feb. 11, 2004.
    
      Tevis W. Hull, Sandpoint, for appellants.
    James H. Paulsen, Sandpoint, for respondents.
   KIDWELL, Justice.

This matter arose out of a dispute between the Plaintiff and the Defendant, relating to the ownership, control, and use of the “lake access” area found in the Ponderosa Home Sites Subdivision (PHS) located in Bonner County. At trial, the district court determined the public owned the “lake access” in the PHS. Plaintiff Stalsberg et al., the Appellant, seeks review of the district court’s decision by this Court.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On September 22,1960, Anna and Kenneth J. McWilliams platted an area of land titled Ponderosa Home Sites in Bonner County. The plat was recorded on January 20, 1961. The plat shows an area marked as “lake access.” The “lake access” is a small piece of lakeshore property located between lots 3 and 4 within PHS. The “lake access” is “L” shaped with a small piece of land between lots 3 and 4 connecting with the public road and the larger portion abutting to Garfield Bay on Lake Pend Oreille south of lot 4. The legal description of the exterior boundaries of the plat includes the area marked as “lake access.” The “lake access” was identified on the map without block or lot designation and without mention in the dedication. The plat included the following dedication: “[t]hey do hereby dedicate to the public, for the use of the public as highways the roads shown upon this plat.” Neither the plat nor any contemporaneous deeds, declarations or papers indicate who is to be the owner of the “lake access.”

Ponderosa and Stalsberg et al., filed suit on June 26, 1995, citing multiple causes of action. The parties filed joint Motions for Summary Judgment. The Summary Judgments were denied in part and granted in part. The district court held a trial on October 25, 26, and 27, 1999, and addressed the single issue of ownership of the “lake access” in the PHS. If the court determined that one of the parties owned the “lake access” then a later trial would be required to determine the issue of damages. Neither party called any witness who was in direct privity with the McWilliams. No evidence was introduced to demonstrate how or if the McWil-liams had made any representations concerning the ownership of the “lake access.” The district court held that neither Ponderosa and Stalsberg et al., nor Garfield et al., established their ownership of the “lake access.” Rather, the “lake access” was the subject of a common law dedication to the public. Stalsberg appeals the decision of the trial court.

II.

STANDARD OF REVIEW

Conclusions of law by a district court are subject to de novo review by this Court. Doolittle v. Meridian Joint Sch. Dist., 128 Idaho 805, 811, 919 P.2d 334, 340 (1996); see Iron Eagle Dev., L.L.C. v. Quality Design Sys., Inc., 138 Idaho 487, 491, 65 P.3d 509, 513 (2003).

III.

ANALYSIS

The Trial Court Erred In Holding As A Matter Of Law That The Public Owned The “Lake Access.”

The district court held “[t]he ‘lake access’ was the subject of a common law dedication to the public.” A “[dedication is essentially the setting aside of real property for the use or ownership of others. Idaho recognizes common law dedication of land both for public, as well as for private use.” Sun Valley Land And Minerals, Inc. v. Hawkes, 138 Idaho 543, 548, 66 P.3d 798, 803 (2003). Public dedications are accomplished either statutorily or by the common law. Worley Highway Dist. v. Yacht Club of Coeur d’ Alene, 116 Idaho 219, 222, 775 P.2d 111, 114 (1989). Common law dedications to the public must satisfy a two-part test. See Sun Valley Land And Minerals, Inc., 66 P.3d at 803. “The elements of a common law dedication are (1) an offer by the owner clearly and unequivocally indicating an intent to dedicate the land and (2) an acceptance of the offer.” Id; Pullin v. Victor, 103 Idaho 879, 881, 655 P.2d 86, 88 (Ct.App.1982).

“The offer to dedicate may be made in a number of ways, including the act of recording or filing a subdivision plat depicting the specific areas subject to dedication, so long as there is a clear and unequivocal indication the owner intends to dedicate.” See Sun Valley Land And Minerals, Inc., 66 P.3d at 803. In determining the intent to dedicate, “the court must examine the plat, as well as ‘the surrounding circumstances and conditions of the development and sale of lots.’ ” Id. (citing Dunham v. Hackney Airpark, Inc., 133 Idaho 613, 616, 990 P.2d 1224, 1226 (Ct.App.1999)). It is clear that the McWilliams, the original owners of the platted property, intended to “dedicate to the public, for the use of the public as highways the roads shown upon this plat.” However, there is no explicit dedication for the “lake access.” As the district court found, “[n]either the plat nor any contemporaneous deeds, declarations or papers indicate who is to be the owner of the ‘Lake Access.’ ”

The area is depicted on the plat as “lake access” with no other clues as to intent or ownership. As another jurisdiction observed, “[t]he mere leaving of a blank upon the plat without any designation of its purpose cannot be held sufficient proof of an intention of the owner to dedicate the premises represented by such blank or undesignated space to public use.” Poole v. City of Lake Forest, 238 Ill. 305, 87 N.E. 320, 322 (1909). However, the subject area in this case was not left blank; rather, it was denoted as “lake access,” providing additional evidence of the lack of intent to dedicate to the public. Upon examination of the district court’s findings of fact, the district court seems to conclude that a common law public dedication occurred because of insufficient evidence of private ownership; therefore, the court concluded “[i]t is more probable than not that the McWilliams intended the ‘Lake Access’ to be a common law dedication to the public.” In other words, the district court decision suggests that a public common law dedication was the default conclusion.

The case at bar parallels the facts of Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247 (1913). In Deffen-baugh, one of the issues this Court decided was whether beach lands were dedicated to the public. Id. at 518, 135 P. at 248. The Respondent in Dejfenbaugh platted her property and dedicated to the public the streets and avenues that were shown on the plat. Id. However, the land between the lots and the water line were designated as “beach,” and at another location as “sand beach.” Id. This Court held “[t]he dedication did not include the water front or beach, and the plat does not in any way indicate that it is dedicated to the public, or that it was intended as a dedication in the same sense in which streets, alleys, and avenues are dedicated.” Id. The Court went on to state there was no evidence of intent by the owner of the property to dedicate the land to the public, but instead, the owner intended “to grant a perpetual easement in this beach to the purchasers of lots...as a special inducement to prospective purchasers.” Id.

This case parallels Deffenbaugh because the plat created by the McWilliams included a dedication “to the public, for the -use of the public as highways the roads shown upon this plat.” Furthermore, the disputed area was listed as “lake access,” which is similar to the listing of “beach” and “sand beach” in Deffenbaugh. As the district court concluded, no other evidence suggests ownership of the “beaeh access.” The “beach access” is not a road or highway; therefore, the PHS plat dedication to the public seems inapplicable.

Without analysis, the district court cites to Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969), which held that an open space on a plat was dedicated to the public. However, Smylie has factual dissimilarities to the case at bar. In Smylie, there is a platted road which connects to a driveway; “[t]he northwest corner of ‘driveway’ is not closed off but rather opens toward the lake and small apron of land which is here in dispute. It appears that this parcel was intended as continuation of the driveway providing natural access to the lake...[therefore,] the overall tenor of the plat shows an intention on the part of the Palmers to dedicate the disputed area.” Id. at 192, 457 P.2d at 431. However, the “lake access” of this case is not a continuation of the road which was dedicated by the McWilliams to the public. The district court, in its findings of fact, found the “lake access” was “connected to and not distinguished from the area marked as a public road.” However, the PHS map shows otherwise; the “lake access” is an L-shaped piece of land which perpendicularly intersects the road at the property’s narrowest point. In other words, the “lake access” intersects the public road in the same manner as all the other lots of the PHS. Because the “lake access” is not a continuation of the dedicated public road, the Smylie holding does not control.

Some courts have failed to distinguish between public and homeowner association ownership. This Court, in Smylie, relied upon Cassell v. Reeves, 265 S.W.2d 801 (Ky.1954). In Cassell, it was “held that all the streets, alleys, parks or other open spaces delineated on such map or plan have been dedicated to the use of the purchasers of the lots and those claiming under them as well as of the public.” Id. at 802. In other words, dedicating the use of the open land to the lot owners includes dedication to the public. Giving access and ownership of the “lake access” to Ponderosa and Stalsberg is not the same as giving those rights to the public. If the “lake access” was dedicated to the public, Ponderosa and Stalsberg would also have access, but this fact defeats Ponderosa’s and Stalsberg’s purpose. Presumably, Pondero-sa and Stalsberg purchased lots with the understanding that they could use the “lake access.” If the district court finds the McWilliams intended to give Ponderosa and Stalsberg the “lake access” as an incentive to purchase PHS lots, then Ponderosa and Stalsberg, and not the public, should be the owner. Stated another way, upon remand, the district court can decide that Ponderosa and Stalsberg privately own the “lake access.”

Additionally, the Court in Cassell said that leaving a blank space on a plat does not necessarily mean that á public dedication has occurred; nevertheless, special conditions could show otherwise. Id. at 803. In dicta, the Court continued, “[s]uch special condition is leaving an unmarked space or strip between a street shown on the plat and a navigable river.” Id. The “lake access” of this case is between a public street and a navigable waterway, being Garfield Bay on Pend Oreille Lake; but, the “lake access” is a marked space on the plat. Therefore, the dicta of Cassell does not apply to this ease because the “lake access” is marked on the plat.

Because of the lack of evidence of ownership, as found by the district court, and the lack of intent to dedicate to the public, this Court vacates the district court and follows this Court’s previous decision in Deffenbaugh insofar as holding that the “lake access” was not dedicated to the public, and remands the case to the district court to determine ownership of the “lake access.”

IV.

CONCLUSION

This Court holds the two-part test for common law dedications- to the public has not been satisfied, and the case is remanded to the district court. The first element of the test, which requires an offer by the owner clearly and unequivocally indicating an intent to dedicate the land, is not satisfied. There is a lack of evidence of ownership, as found by the district comb, and a lack of intent to dedicate to the public. Therefore, we vacate the district comb and follow our previous decision in Deffenbaugh insofar as holding that the “beach access” was not dedicated to the public, and we remand the case to the district court to determine ownership of the “beach access.”

Chief Justice TROUT and Justices SCHROEDER and EISMANN, concur.

Justice BURDICK,

dissenting.

I respectfully dissent from the majority opinion and would affirm Judge Judd’s original finding after a court trial in this case. The reason for the dissent can be found in the plat dedication signed by Mr. And Mrs. McWilliams wherein it says in applicable part:

KNOW ALL MEN BY THESE PRESENTS, that we, K.J. McWilliams and Anna M. McWilliams, his wife, have caused to be laid off and platted into lots, block, and roads the land shown upon this plat to [sic] known as “PONDEROSA HOME SITES.”

This shows a specific intent to divide the entire land known as Ponderosa Homesites into three basic legal definitions of lots, blocks, and roads. The McWilliams additionally “dedicate to the public, for the use of the public as highways the roads shown upon this plat. The lakeshore lots include shore-land and riparian rights.” I have included as Exhibit A to this dissent the final plat of Ponderosa Homesites. In that plat it is plain to see that a service road is at the top of the plat. It is noted that all other lots are totally inscribed by lot lines except for a “lake access.” Lot 4 is an enclosed lot that does not go all the way to the shoreline as lots 1, 2 and 3 do; however, it abuts the lake inlet in its southeastern portion. This shows a specific intent that the lake access is a part of the service road because it shows no intersecting lines at the beginning of the “lake access” and, in addition, Lot 4 is stopped short of lots 1, 2 and 3 so that there can be a large lake access area. I believe that this shows an intent that “lake access” as noted on the final plat of the Ponderosa Homesites means that it is part of the “roads” dedicated to the public.

The majority tries to distinguish the case of Smylie v. Pearsall, 93 Idaho 188, 457 P.2d 427 (1969) from the facts of this case and I respectfully disagree. I have enclosed as Exhibit B to this dissent the Exhibit No. 1 from the Smylie case found at 93 Idaho at 189, 457 P.2d at 428. As can be seen in that case the open roadway above lots 12 and 11 is entitled “driveway.” That denotes an even more private or personal use than “lake access” in the case before the Court at this time. However, the Idaho State Supreme Court found in a unanimous decision that it was clear’ that the intent of the landowner was to make the “driveway” a public access. Again, Smylie depends upon Cassell v. Reeves, 265 S.W.2d 801 (Ky.1954).

The Idaho Supreme Court quotes Cassell at 93 Idaho at 191, 457 P.2d at 430 as follows:

And, nothing else appearing, it is held that all the streets, alleys, parks or other open spaces delineated on such map or plat have been dedicated to the use of the purchasers of the lots and those claiming under them as well as of the public.

In fact, the Comb in Smylie found the purpose for the “driveway” was land access to lots 8-12. 93 Idaho at 192, 457 P.2d at 431 (See Exhibit B.) The Court in Smylie distinguishes Deffenbaugh v. Washington Water Power Co., 24 Idaho 514, 135 P. 247 (1913) as this Court should do also.

In the Deffenbaugh case, the plat showed certain streets and avenues as well as an area designated as “beach” or “sandy beach” along La Deleardo Bay, an arm of Lake Coeur d’Alene. There the owner filed for record not only the plat but a written dedication of the streets and avenues which the plat indicated. This dedication did not include the beach area. Thus, apparently on the theory of expression unius est exclusion alterius, the court found no intention to dedicate the beach area. A written dedication of some portion of the plat is not an element in the case at bar. The original owner’s intention can be inferred only from the plat itself. In one respect, the reasoning in the Deffenbaugh ease may support the result we reach here, for the court there went on to declare that it was the owner’s intention “to grant a perpetual easement in this beach to the purchasers of lots (in that development).”

93 Idaho at 193, 457 P.2d at 432.

In Deffenbaugh the Idaho Supreme Court was looking at a difference in language on the plat and on the attached dedication. The plat had the land between the lot line and water line as “beach” or “sandy beach” while the dedication attached to the plat said nothing about this area. “Thus, apparently on the theory of expression unius est exclusion alterius the court found no intention to dedicate the beach area.” 93 Idaho at 193, 457 P.2d at 432.

This Court should distinguish Deffen-baugh, rely on Smylie, and hold there was an intent shown from the plat to make the “lake access” open to the public and thus affirm the trial court who made this original finding of fact as to the McWilliams’ intent.

EXHIBIT A

EXHIBIT B  