Gillmor v. Wright

• Decision Date: 22 March 1993
• Docket Number: No. 890257,890257
• Citation: 850 P.2d 431
• Parties: Shirley GILLMOR, as Personal Representative of the Estate of Stephen T. Gillmor, Plaintiff and Appellant, v. Dennis K. WRIGHT, Sara C. Wright, David L. Wright, and Rona R. Wright, Defendants and Cross-Appellants, and Charles F. Gillmor and Edward Leslie Gillmor, Intervenor-Defendants, Appellees and Cross-Appellants.
• Court: Utah Supreme Court

Page 431

850 P.2d 431

Shirley GILLMOR, as Personal Representative of the Estate of Stephen T. Gillmor, Plaintiff and Appellant, v. Dennis K. WRIGHT, Sara C. Wright, David L. Wright, and Rona R. Wright, Defendants and Cross-Appellants and Charles F. Gillmor and Edward Leslie Gillmor Intervenor-Defendants, Appellees and Cross-Appellants.

No. 890257.

Supreme Court of Utah.

March 22, 1993.

James B. Lee, John B. Wilson, Salt Lake City, for Shirley Gillmor.

D. Gilbert Athay, Salt Lake City, for Charles Gillmor and the Wrights.

R. Stephen Marshall, Richard C. Skeen, Salt Lake City, for Edward Gillmor.

HOWE, Associate Chief Justice:

Plaintiff Shirley Gillmor, personal representative of the estate of Stephen T. Gillmor, seeks injunctive relief and damages from the Wright defendants. ¹ The Wrights allegedly interfered with hunters who had purchased permits to hunt on Shirley's land. Edward Leslie Gillmor and Charles F. Gillmor intervened as defendants and brought counterclaims against Shirley, seeking an award of an easement over Sawmill Canyon Road as it traverses Shirley's property. Edward and Charles alleged in their counterclaims that they were entitled to an easement by implication and by necessity over the road. They also asserted that the legal description of the easement over the road which was awarded to them in a 1981 partition decree to which they were parties should be reformed because of a mutual mistake of the parties. All claims and counterclaims were eventually dismissed by the trial court sitting without a jury. Shirley appeals, and Edward and Charles cross-appeal.

I. SAWMILL CANYON ROAD EASEMENT

This action involves approximately 5139 acres of real property located in Summit County known as the Sawmill property. Before 1981, Shirley's predecessor in interest, Florence Gillmor, together with Edward and Charles, owned the entire acreage as tenants in common. They also jointly owned other properties located in Salt Lake, Tooele, Wasatch, and Summit Counties consisting of approximately 33,000 acres.

In 1974, Edward commenced an action against Florence and Charles to partition all 33,000 acres. In 1981, a decree was entered which partitioned the Sawmill property among the three owners. This court affirmed that decree. Gillmor v. Gillmor, 657 P.2d 736 (Utah 1982). ²

Sawmill Canyon Road is an unimproved dirt road that runs north from an east-west frontage road near Interstate Highway 80 in Echo Canyon. The road is quite steep and follows the bottom of Sawmill Canyon up to the top of a mountain on Shirley's property. The canyon is narrow, with steep walls and cliffs on both sides of the road. The cliffs cannot be crossed by vehicles or livestock. From the mouth of the canyon, the road traverses the property owned by the Wright defendants and then rises rapidly in a northerly direction as it crosses the western portion of the property of Charles, Edward, and Shirley, in that order. After reaching Shirley's property, the road veers to the northeast. It then turns south, running back across the eastern portions of property owned by Edward and Charles along Thirtyfive Canyon. ³ After the partition decree was entered in 1981, the parties allowed Stephen Gillmor to use the entire Sawmill property until 1983. From 1983 to 1987, Edward used the full length of the road. Then, after four years had passed without objection from Shirley, she protested Edward's and Charles' use of the road over her property beyond a point known as the Forks.

The partition decree provided, "A roadway and stock trail easement is hereby reserved," and then gave a metes and bounds description of the easement. The description terminates in the south end of the property awarded to Florence (now owned by Shirley) at the Forks and does not give Edward or Charles access by road to the eastern parts of their properties.

The trial court in the instant action found that "Edward Gillmor and Charles Gillmor do not have traditional grazing access to eastern portions of their Sawmill parcels unless they are allowed access over parcels awarded to Florence Gillmor and now owned by Shirley Gillmor." However, the court further found that in entering the partition decree in 1981, the trial court did not intend to provide Edward and Charles access over the parcel awarded to Florence beyond the Forks. The court apparently found support for that finding in our decision in the partition case, where we stated that historical uses of property were not sacrosanct and that Edward's ranching activities would be affected because the land as partitioned may be less usable for grazing. Gillmor v. Gillmor, 657 P.2d at 740-41. We review these findings of fact under the clearly erroneous standard. Appellants must marshal the evidence in support of the findings and then demonstrate that despite this evidence, the findings are so lacking in support that they are against the clear weight of the evidence, thus clearly erroneous. In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989); see also Utah R.Civ.P. 52(a). On appeal, we disregard the labels attached to findings and conclusions and look to the substance. State v. Rio Vista Oil, Ltd., 786 P.2d 1343, 1347 (Utah 1990); Zions First Nat'l Bank v. National Am. Title Ins. Co., 749 P.2d 651, 656 (Utah 1988). Therefore, that which a trial court labels a "finding of fact" may be in actuality a conclusion of law, which we review for correctness. E.g., Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985).

The trial court concluded that neither Edward nor Charles was entitled to extend the described easement by either necessity or implication. ⁴ The court stated that its refusal to extend the easement was based on "traditional notions of finality inherent in the doctrines of res judicata and collateral estoppel." The court found that the source of the mistake alleged by Charles and Edward was an exhibit, offered in the partition case by Charles and Florence which contained metes and bounds descriptions for the easements. Although he was expressly cautioned to do so by the court in that case, Edward failed to review the exhibit. Under the circumstances, the trial court in the instant case concluded that it was "inappropriate and unwise to invoke the catch-all provision of rule 60(b)(7) to grant relief from the final judgment." Finally, the trial court determined that this was a case "where the finality of judgment should not be undermined over eight years after its entry and six years after its affirmance in response to assertions which suggest at the most, 'mistake, inadvertence, surprise, or excusable neglect.' " Therefore, the court declined to grant the relief sought under 60(b).

"A motion or action to modify a final judgment is addressed to the discretion of the trial court, the exercise of which must be based on sound legal principles in light of all relevant circumstances." Laub v. South Central Utah Tel. Ass'n, 657 P.2d 1304, 1306 (Utah 1982). That court's determination will be reversed only upon a showing of an abuse of discretion. Id.

Edward contends that the description of the easement in the partition decree is erroneous and that the error occurred as a result of a mutual mistake of fact. He seeks to correct the mistake through his counterclaim in this action under rule 60(b), Utah Rules of Civil Procedure. That rule allows a court to entertain "an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the court."

In the findings of fact in the partition decree entered by Judge Leary in 1981, he summarized his intent for the division of the Sawmill property:

Acres: 5139 more or less

Division: Each 1284.75 acres more or less. Equal in quantity and quality. Division into parcels will not decrease value of the whole. Can be partitioned without great prejudice to owners.

Present Use: Grazing

Highest and Best Use: Grazing and recreational

Improvements: Fencing, stock ponds, corrals

Stock Trails: Across Wright property to get to grazing land, Thirty Five Canyon. See access.

Water: Developed spring in Sections 21, 23, 26; spring in Sawmill Canyon Section 33.

Access: On existing road from I-15 frontage road across Wright property in mouth of Sawmill Canyon.

Termination of the easement at the Forks would not conform with Judge Leary's summary. The Forks are located on Shirley's property. The division into parcels "equal in quantity and quality" which will "not decrease value of the whole" simply cannot be accomplished without giving Edward and Charles access to the eastern portions of their properties across Shirley's property beyond the Forks. If the legal descriptions of the easements control, the value of Edward's and Charles' properties is greatly decreased; they would effectively be denied access to nearly 80 percent and 98 percent of their lands, respectively.

The existence of the mistake alleged by Edward and Charles is bolstered by the testimony in the instant case of Richard Huffman, who Florence and Charles hired in the original partition action to prepare descriptions of the easements. Huffman testified that in doing so, he made two assumptions which turned out to be false. Huffman believed that livestock could be moved onto the Sawmill property through the south end of Thirtyfive Canyon. This was refuted when Judge Murphy (trial judge in the instant action) personally traversed that canyon and found that it was not accessible for livestock from the south. Judge Murphy then attempted to find an alternative access. He found that livestock could be moved single file in limited numbers from the Sawmill Canyon road up through Pine Canyon but that moving the stock back down Pine Canyon was even more "limited, difficult and treacherous." In addition, Huffman believed that there was a livestock right-of-way from the highway to the mouth of Thirtyfive Canyon across the Wrights' property. This assumption also proved to be false. There is...