Wasatch Cnty. v. Okelberry

Decision Date06 August 2015
Docket NumberNo. 20140397–CA.,20140397–CA.
Citation2015 UT App 192,357 P.3d 586
PartiesWASATCH COUNTY, Plaintiff, Appellant, and Cross-appellee, v. E. Ray OKELBERRY, Brian Okelberry, Eric Okelberry, and West Daniels Land Association, Defendants, Appellees, and Cross-appellants.
CourtUtah Court of Appeals

357 P.3d 586
2015 UT App 192

WASATCH COUNTY, Plaintiff, Appellant, and Cross-appellee
v.
E. Ray OKELBERRY, Brian Okelberry, Eric Okelberry, and West Daniels Land Association, Defendants, Appellees, and Cross-appellants.

No. 20140397–CA.

Court of Appeals of Utah.

Aug. 6, 2015.


357 P.3d 588

Scott H. Sweat and Craig N. Chambers, for Appellant.

Don R. Petersen and Leslie W. Slaugh, Provo, for Appellees.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

Opinion

VOROS, Judge:

¶ 1 This is the fourth appeal arising from a fourteen-year dispute over whether certain country roads in Wasatch County were dedicated to the public. During the course of this litigation, the Utah Legislature amended the controlling statute. This appeal asks whether that amendment controls this dispute. We hold that it does and thus that all the roads in question were dedicated to public use.

BACKGROUND

¶ 2 E. Ray Okelberry, Brian Okelberry, Eric Okelberry, and West Daniels Land Association (collectively, the Okelberrys) are owners of tracts of land located in Wasatch County (the Property). The Property consists of mountainous terrain with interconnecting dirt roads providing ingress and egress. The public used these roads—Circle Springs Road, Maple Canyon Road, Parker Canyon Road, Ridge Line Road, and Thornton Hollow Road—from the late 1950s, when the Okelberrys originally purchased the land, until the late 1980s. In the late 1980s or early 1990s, the Okelberrys began selling “trespass permits” to hunters. Later, in the early or mid–1990s, the Okelberrys placed the Property in a Cooperative Wildlife Management Unit to be used exclusively for private hunting. To enforce the trespass permits, the Okelberrys began closing and locking the gates at the road entrances to the Property.

¶ 3 In 2001, Wasatch County sued the Okelberrys to enforce the public's use rights over the roads under section 72–5–104 of the Utah Code (the Dedication Statute). After a bench trial in June 2004, the trial court concluded that the Okelberrys had dedicated some, but not all, of the roads to the public under the Dedication Statute. The court further ruled that Wasatch County had lost the ability to enforce the public's use under the doctrine of equitable estoppel. Wasatch County appealed the trial court's determination. We upheld the dedication finding but reversed the equitable-estoppel finding. Wasatch County v. Okelberry (Okelberry I ), 2006 UT App 473, ¶ 33, 153 P.3d 745, rev'd, 2008 UT 10, 179 P.3d 768. On certiorari, our supreme court articulated a different standard for the conduct necessary to disrupt public use under the statute. See Wasatch County v. Okelberry (Okelberry II ), 2008 UT 10, ¶ 15, 179 P.3d 768. The supreme court reversed our decision in Okelberry I and remanded the case to the trial court with instructions to make findings of fact consistent with the new standard. Id. ¶ 19.

¶ 4 On remand, the trial court applied the new standard and concluded that the Okelberrys had dedicated the roads to the public.

357 P.3d 589

The Okelberrys appealed, and we held that the Okelberrys must be permitted to present additional evidence of any intent to disrupt the road dedication and to allow the trial court to make findings of fact as to whether, when, and why the Okelberrys locked the gates. Wasatch County v. Okelberry (Okelberry III ), 2010 UT App 13, ¶ 20, 226 P.3d 737.

¶ 5 In 2011, the Utah Legislature amended the Dedication Statute. See Utah Code Ann. § 72–5–104 (LexisNexis Supp. 2011).

¶ 6 In November 2012 and February 2013, the Okelberrys presented additional evidence to the trial court of their intent to interrupt the public's continuous use of the roads. In its “Findings of Fact and Conclusions of Law” dated January 14, 2014, the trial court concluded that the amended version of the Dedication Statute did not apply to this case. And it concluded that, under the standard announced in Okelberry II, the Okelberrys had dedicated some, but not all, of the roads to public use. But the court also made a conditional finding that if the amended Dedication Statute applied, all the roads would be dedicated to public use.

¶ 7 Wasatch County appeals, and the Okelberrys cross-appeal.

ISSUES ON APPEAL

¶ 8 The parties raise three issues on appeal. First, Wasatch County contends that the trial court erred in failing to apply the amended version of the Dedication Statute to this case. Wasatch County further contends that under the amended version of the Dedication Statute the Okelberrys dedicated all of the roads at issue to the public.

¶ 9 Second, Wasatch County contends that even if the amended version of the Dedication Statute does not apply, the trial court's findings of fact were insufficient under the standard set forth in Okelberry II to support its conclusion that the Okelberrys dedicated only some of the roads to public use.

¶ 10 Third, on cross-appeal the Okelberrys contend that the trial court erred in failing to recognize that “maintaining locked gates constitutes an overt act that interrupts public use.”

ANALYSIS

I. Retroactivity

¶ 11 Wasatch County first contends that the trial court erred in ruling that the Okelberrys dedicated some, but not all, of the roads to public use. Wasatch County argues that this error resulted from the court's refusal to apply the amended version of the Dedication Statute. The Okelberrys respond that applying the amended version would contravene Utah law on retroactivity and violate the mandate rule. “We review for correctness questions regarding the law applicable in a case, including the issue of whether a given law can or should be applied retroactively.” Goebel v. Salt Lake City S. R.R., Co., 2004 UT 80, ¶ 36, 104 P.3d 1185.

¶ 12 The pre–2011 version of the Dedication Statute contained no intent requirement:

A highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years.

Utah Code Ann. § 72–5–104(1) (LexisNexis 2009).

¶ 13 However, in interpreting the pre–2011 version of the Dedication Statute in Okelberry II, our supreme court explained that a property owner's act would interrupt continuous public use so long as it was “intended” and “reasonably calculated” to do so:

An overt act that is intended by a property owner to interrupt the use of a road as a public thoroughfare, and is reasonably calculated to do so, constitutes an interruption sufficient to restart the running of the required ten-year period under the Dedication Statute.

2008 UT 10, ¶ 15, 179 P.3d 768. Significantly, under the court's interpretation of the statute, an overt act intended and reasonably calculated to interrupt the public's continuous use could legally interrupt the public's use even if it did not actually do so.

¶ 14 In defining “continuous use,” the 2011 amendments to the Dedication Statute rejected the supreme court's emphasis on whether an act was “intended” or “reasonably calculated” to interrupt public use and

357 P.3d 590

required that such an act “actually” interrupt public use:

Continuous use as a public thoroughfare ... is interrupted only when the regularly established pattern and frequency of public use for the given road has actually been interrupted to a degree that reasonably puts the traveling public on notice....

Utah Code Ann. § 72–5–104(3)(a) (LexisNexis Supp. 2011). The 2011 amendment also added a retroactivity provision:

The provisions of this section apply to any claim under this section for which a court of competent jurisdiction has not issued a final unappealable judgment or order.
The Legislature finds that the application of this section:
(i) does not enlarge, eliminate, or destroy vested rights; and
(ii) clarifies legislative intent in light of Utah Supreme Court rulings in Wasatch County v. Okelberry, 179 P.3d 768 (Utah 2008), Town of Leeds v. Prisbrey, 179 P.3d 757 (Utah 2008), and Utah County v. Butler, 179 P.3d 775 (Utah 2008).

Utah Code Ann. § 72–5–104(9).

¶ 15 The trial court here ruled that, although the amended version of the Dedication Statute seemed to satisfy all the criteria for retroactive application, to apply it here would implicate substantive property rights:

However, since the statute affects substantive property rights and cannot be applied retroactively, the [c]ourt cannot apply this standard to determine if the roads have been dedicated to the public use.

Considering itself bound by the test announced in Okelberry II, the trial court asked not whether the acts of the property owners had actually interrupted public use, but whether those acts had been intended and reasonably calculated to do so. Applying this test, the trial court determined that some roads and portions of roads had been dedicated and some had not.

¶ 16 However,...

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