AWINC CORP. v. Simonsen

• Decision Date: 14 April 2005
• Docket Number: No. 20030318-CA.,20030318-CA.
• Citation: 2005 UT App 168,112 P.3d 1228
• Parties: AWINC CORP., Plaintiff and Appellee, v. Randy T. SIMONSEN, Defendant and Appellant.
• Court: Utah Court of Appeals

112 P.3d 1228

2005 UT App 168

AWINC CORP., Plaintiff and Appellee, v. Randy T. SIMONSEN, Defendant and Appellant.

No. 20030318-CA.

Court of Appeals of Utah.

April 14, 2005.

Reed M. Richards, Ogden, for Appellant.

Gary A. Weston, Nielsen & Senior PC, Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and GREENWOOD.

OPINION

BILLINGS, Presiding Judge:

¶ 1 Defendant Randy T. Simonsen (Simonsen) appeals from the trial court's determination that an unimproved mountain road which crosses Simonsen's property and leads to AWINC Corporation's property (AWINC) is a public road under Utah Code section 72-5-104(1). See Utah Code Ann. § 72-5-104(1) (2004). We affirm.

BACKGROUND

¶ 2 AWINC and Simonsen own property on adjacent parcels in the Uinta National Forest.¹ Both properties are accessed by an unimproved mountain road (Middle Fork Road).

¶ 3 Simonsen attempted to block access to Middle Fork Road. In 1996 or 1997, Simonsen placed a metal gate (the Gate) across Middle Fork Road and constructed a fence which extended 200 feet on each side of the Gate. Also in 1997, a fence wire drop gate (the Livestock Gate) was constructed across Middle Fork Road. The gates prevented use of that part of the road by AWINC.

¶ 4 From the 1960s until 1995, portions of what is now Simonsen's property were leased for sheep grazing purposes. One or more of the lessees placed rocks and tires along a neighboring road called Left Fork Road with words declaring "No Trespass." Signed rocks were also placed in the general area where Middle Fork Road accessed Left Fork Road, but these signs did not halt public use of Middle Fork Road.

¶ 5 At least four individuals testified that their friends and family used Middle Fork Road for recreational purposes on a regular basis. Cullen Goodwin, David Ellis, Fred Addis, and Kenneth Earle testified for AWINC as to their use of Middle Fork Road by themselves, friends, and members of their respective families over a period of many years. They testified that they did not own property in the vicinity of Middle Fork Road nor in the Soldier Summit mountain area, that they used Middle Fork Road without ever asking permission or having been given permission for its use, and that while operating motor vehicles on the road, it was common for them to encounter other people not part of their group or party who were also operating motor vehicles on the road. These individuals testified that they were never asked not to use the road, nor were they told that they could not use the road. Moreover, they testified that none of them at anytime had seen a gate across Middle Fork Road prior to the recent construction of the Gate and the Livestock Gate.

¶ 6 AWINC initiated litigation against Simonsen claiming a prescriptive easement, including a claim for trespass, damages for the erection of the Gate across Middle Fork Road, a request for permanent injunction requiring the opening of the Gate, and a request for a declaratory judgment that Middle Fork Road be determined a public road. The trial court dismissed AWINC's claims for a prescriptive easement, damages, and an injunction to remove the Gate. However, at the conclusion of the trial, the court determined that, pursuant to Utah Code section 72-5-104(1) and its predecessor, Utah Code section 27-12-89, Middle Fork Road was a public road and directed Simonsen to remove the lock from the Gate blocking the road. Simonsen appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 7 First, Simonsen argues the trial court erred in concluding Middle Fork Road was a public road because there was not sufficient evidence to sustain the clear and convincing burden of proof. To establish the dedication of a public road, we require clear and convincing evidence. See Thomson v. Condas, 27 Utah 2d 129, 493 P.2d 639, 639 (1972). It is well established that we review findings of fact under the clearly erroneous standard. See State v. Pena, 869 P.2d 932, 935 (Utah 1994). To find clear error, this court "must decide that the factual findings made by the trial court are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." Id. at 935-36.

¶ 8 Second, Simonsen argues that the trial court erred as a matter of law by determining that Middle Fork Road is a road abandoned to the public. We review application of law for correctness. See id. at 936 (stating that in reviewing "a trial court's determination of the law[,] ... [an] appellate court decides the matter for itself and does not defer in any degree to the trial judge's determination of law").

ANALYSIS

I. Marshaling

¶ 9 Simonsen argues that the court's factual findings were not supported by clear and convincing evidence. Because Simonsen challenges the factual findings, he "`must marshal the evidence in support of the findings and then demonstrate that despite this evidence,'" the trial court's findings are not supported by clear and convincing evidence. Young v. Young, 1999 UT 38, ¶ 15, 979 P.2d 338 (quoting In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989) (other citation omitted)). To properly marshal the evidence, Simonsen must first list all of the evidence supporting the challenged finding. See, e.g., Tingey v. Christensen, 1999 UT 68, ¶ 7, 987 P.2d 588. Simonsen must then show that the marshaled evidence is legally insufficient to support the findings when viewing the evidence and inferences in a light most favorable to the decision. See id.

¶ 10 Simonsen has failed to properly marshal the evidence to show that the findings are not supported by clear and convincing evidence. Simonsen failed to, "in comprehensive and fastidious order, [present] every scrap of competent evidence introduced at trial which supports the very findings the appellant resists." West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct.App.1991) (emphasis added). Rather, Simonsen provided an incomplete list of evidence supporting the factual findings and then claims that the findings are not supported by clear and convincing evidence. Simonsen not only failed to provide a comprehensive list of evidence, but he also failed to "ferret out a fatal flaw in the evidence," and thus Simonsen fails "to convince [us] that the court's finding[s] ... [are] clearly erroneous." Id. Accordingly, we "assume[ ] that the record supports the findings of the trial court and proceed[ ] to a review of the accuracy of the lower court's conclusions of law and the application of that law in the case." Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997) (alterations in original) (quotations and citations omitted).

II. Highway Abandoned to Public

¶ 11 Utah Code section 72-5-104(1) provides that in order to declare a highway dedicated and abandoned to the public, it must be established that the highway "has been continuously used as a public thoroughfare for a period of ten years." Utah Code Ann. § 72-5-104(1) (2004). The Utah Supreme Court has determined that continuous use of a road exists when "the public, even though not consisting of a great many persons, made a continuous and uninterrupted use" not necessarily every day, but "as often as they found it convenient or necessary." Boyer v. Clark, 7 Utah 2d 395, 326 P.2d 107, 109 (1958); see Heber City, 942 P.2d at 311 (determining as a matter of law that a road was used continuously where the evidence demonstrated that "the public made a continuous and uninterrupted use of" the road "as often as they found it convenient or necessary"). Similarly, in Richards v. Pines Ranch, Inc., the Utah Supreme Court stated that "use may be continuous though not constant.... provided it occurred as often as the claimant had occasion or chose to pass.... Mere intermission is not interruption." 559 P.2d 948, 949 (Utah 1977) (quotations and citation omitted).

¶ 12 Simonsen argues that use of Middle Fork Road was not continuous because use was blocked by the Gate, the Livestock Gate, and "No Trespass" signs that both he and previous lessees installed. In Campbell v. Box Elder County, this court determined that there was not continuous use of a road because landowners generally locked a gate that crossed the road, and several witnesses testified that they were prevented access to the road due to the locked gate. See 962 P.2d 806, 809 (Utah Ct.App.1998). However, Campbell is distinguishable from the instant case because the evidence demonstrates that members of the general public used Middle Fork Road significantly more than ten years before Simonsen erected the gates in 1996 and 1997.

¶ 13 For example, Earle, his family, and his friends used the road every year starting around July 4th through late October as early as the 1940s or early 1950s. Goodwin, Addis, their families, and their friends used Middle Fork Road every year during May and through October or November starting in 1965. Further, Middle Fork Road was used as recently as either 1977 or 1978 by Ellis, who, along with family and friends, also used the road every year starting in May ending in November. Each witness testified that he used the road every year until the erection of the Gate in 1996 or 1997.

¶ 14 Moreover, each witness testified that he did not use the road every day, but that he used the road for recreational purposes on a regular basis so long as the weather permitted. Under Utah law, the public need only use the road whenever they find it "necessary or convenient." Id. This evidence supports the trial court's determination that "the public used the road whenever they found it necessary or convenient and use...