Homer v. Smith

• Decision Date: 29 December 1993
• Docket Number: No. 920722-CA,920722-CA
• Citation: 866 P.2d 622
• Parties: Frederick R. HOMER; Robert Steur and Debra D. Steur; and Robert Steur, Inc., a Utah corporation, Plaintiffs and Appellees, v. Reed M. SMITH; Barbara D. Smith; and Sandy Hills, Inc., a Utah corporation, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 622

866 P.2d 622

Frederick R. HOMER; Robert Steur and Debra D. Steur; and Robert Steur, Inc., a Utah corporation, Plaintiffs and Appellees, v. Reed M. SMITH; Barbara D. Smith; and Sandy Hills, Inc., a

Utah corporation, Defendants and Appellants.

No. 920722-CA.

Court of Appeals of Utah.

Dec. 29, 1993.

Clark W. Sessions and Cynthia K.C. Meyer, Salt Lake City, for defendants and appellants.

Harold C. Verhaaren, Michael W. Homer, H. Michael Drake, and Paul M. Simmons, Salt Lake City, for plaintiffs and appellees.

Before BILLINGS, DAVIS and GREENWOOD, JJ.

OPINION ¹

DAVIS, Judge:

Appellants Reed M. Smith, Barbara D. Smith (the "Smiths") and Sandy Hills, Inc. ("Sandy Hills") appeal from a judgment entered against them and in favor of appellees Frederick R. Homer ("Homer"), and Robert Steur and Debra D. Steur (the "Steurs"). This case involves two separate lawsuits brought against the Smiths and Sandy Hills by Homer and the Steurs. The two cases were consolidated before trial because they are both property disputes concerning the same tract of land. We affirm.

I. FACTS

The Smiths were the original commercial developers of property located on the southwest corner of 1300 South and 2100 East streets in Salt Lake City, Utah. In the late 1940s, they constructed a grocery store on property near the corner. In 1970 the Smiths transferred their property to Sandy Hills, the present owner. ²

In 1947, the Smiths sold a parcel of land south of the grocery store to Thomas and Loraine Dewey (the "Deweys"), who were Homer's predecessors-in-interest. The Deweys were Mrs. Smith's parents. In the early 1950s, the Deweys constructed a commercial building on their property that included a drug store on the ground level and apartments on the upper level. The second floor apartments were constructed piecemeal, beginning in approximately 1954 and continuing until approximately 1964. The apartments encroach over the roof of Sandy Hills's single story building. The width of the encroachment varies from two-tenths of a foot to seven-tenths of a foot.

Also in the early 1950s, the Smiths and the Deweys acquired separately the lots directly behind (to the west) of their property for parking. Customer parking was also available in front of the two buildings. Originally, patrons pulled directly from 2100 East into parking areas in front of the buildings. However, in approximately 1953, Salt Lake City improved 2100 East and added a curb in front of the buildings. Thereafter, vehicles parking in front had to enter and exit the parking area by way of two curb cuts; one in front of the Steurs' property, and one in front of the Smiths' property.

Parking in the rear of the buildings was accessed either from 1300 South behind the buildings, or from 2100 East through an alley south of the Deweys' property. Thus, vehicles could enter from 1300 South and exit onto 2100 East, and vice versa. The alley connecting 2100 East to the rear of the properties and the building immediately south of the alley were originally owned by Vera Callister, the Steurs' predecessor-in-interest.

In November of 1953, Mr. Smith, Mr. Dewey and Mrs. Callister entered into an agreement to formalize their rights of access and parking on their respective properties. Mr. Smith and Mr. Dewey agreed to give Mrs. Callister a right-of-way over fifty feet of their property behind the buildings, and to provide and maintain parking spaces on their property. In return, Mrs. Callister agreed to provide and maintain a twenty-six foot wide right-of-way through the alley leading from 2100 East. The parties exchanged deeds of right-of-way in 1954 pursuant to the agreement.

In 1964, the Deweys began leasing their drug store to Bonneville Drug, a company owned by plaintiff Homer. In approximately 1976, Bonneville Drug purchased the entire building from the Deweys, including the parking area in front of the building. Bonneville Drug subsequently transferred the property to Homer, who owns it today.

In 1983, the Steurs purchased the Callister property, which was subject to the right-of-way deeds. ³ At that time, the alley was in poor repair, with several holes in the asphalt. A three-foot wide sidewalk existed on the south side of the right-of-way. In March 1986, Mr. Smith, on behalf of Sandy Hills, sent the Steurs a letter complaining that the right-of-way agreement had been violated because, among other things, the twenty-six foot right-of-way was being partially blocked by parked vehicles. The Steurs consulted an architect for advice on how to prohibit parking in the right-of-way. Next, they advised Mr. Smith by letter that they intended to make improvements to alleviate the problem.

In May and June 1986, the Steurs improved the right-of-way by resurfacing it and replacing the old three-foot wide sidewalk with a new five-foot wide sidewalk. The new sidewalk was raised five inches from the asphalt surface. ⁴ The Steurs added a one-foot wide curb on the north side of the right-of-way and painted directional arrows on either lane and two solid yellow lines down the center.

Shortly thereafter, Mr. Smith complained to the Steurs that the improvements narrowed the right-of-way and impeded use of the alley by semi-trucks. Mr. Smith proposed that the parties terminate the reciprocal rights-of-way, but the Steurs would not agree to do so.

The dispute seemingly died down until nearly two and one-half years later, when Sandy Hills, without notice to either Homer or the Steurs, placed concrete barriers topped with a chain link fence across the entire fifty-foot right-of-way behind its building. Sandy Hills also placed a concrete barrier in front of its building, thereby impeding in part the traditional access to the Homer property. ⁵ The rear barrier completely prevented the Steurs and Homer, or any of their customers, employees or tenants, from accessing either 1300 South through the fifty-foot right-of-way, or the parking behind the Homer building from 1300 South.

Homer then filed suit against Sandy Hills seeking damages and an order that the barriers be removed permanently. Sandy Hills counterclaimed, alleging that Homer's second floor apartments encroached over Sandy Hills's property. The Steurs filed a separate lawsuit against Sandy Hills in which they sought to enforce the right-of-way agreement and to permanently enjoin Sandy Hills from interfering with their right to enjoy the right-of-way.

The trial court held a bench trial on the matter and determined that: (1) Homer was entitled to a prescriptive easement across the front and rear of Sandy Hills's property; (2) Sandy Hills was not entitled to judgment on its counterclaim because the encroaching apartments created a boundary by acquiescence; and (3) the Steurs' improvements to the twenty-six foot right-of-way did not violate the deeds of right-of-way or the 1953 agreement. The trial court ordered the rear barricade removed and permanently enjoined Sandy Hills from erecting additional barriers across either the front or back of its property. ⁶

Sandy Hills raises several claims of error on appeal. For ease of analysis, we will address separately its assertions as they relate to Homer and the Steurs.

II. DISPUTE WITH HOMER

Sandy Hills claims the trial court erred in awarding Homer a prescriptive easement across the front and rear of Sandy Hills's property because there was no evidence that: (1) Homer or his predecessors-in-interest, as opposed to others, actually used the property in question; or (2) Homer's use was adverse. Sandy Hills also objects to the trial court's ruling permitting Homer to tack his use onto that of his predecessor in order to establish the twenty-year prescriptive period. Finally, Sandy Hills asserts that the trial court incorrectly determined that even though Homer's apartments encroached onto Sandy Hills's property, the encroachment could remain under the doctrine of boundary by acquiescence.

A. Prescriptive Easement

The requirements for establishing a prescriptive easement are open, notorious, adverse and continuous use of property for a period of twenty years. Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984); Jensen v. Brown, 639 P.2d 150, 152 (Utah 1981).

Sandy Hills first challenges the trial court's finding that Homer and his predecessors-in-interest actually used the front and rear parking areas to reach the Homer building. We will not set aside a trial court's findings of fact unless they are clearly erroneous. Utah R.Civ.P. 52(a); Englert v. Zane, 848 P.2d 165, 168 (Utah App.1993). " 'A finding is clearly erroneous if it is against the great weight of evidence or if the court is otherwise definitely and firmly convinced that a mistake has been made.' " Englert, 848 P.2d at 168 (quoting Bountiful v. Riley, 784 P.2d 1174, 1175 (Utah 1989)).

The record reveals that the Deweys, Homer's predecessors-in-interest, did travel regularly over Sandy Hills's property. Although the record does not include any direct evidence that Homer himself actually passed over Sandy Hills's property in order to reach his building, Homer testified that he worked daily in his building as a pharmacist for over twenty years. When acting as the fact-finder, the trial court is entitled to assess the witnesses and to weigh the evidence and draw reasonable inferences therefrom. Jensen, 639 P.2d at 152; see State v. Garrett, 849 P.2d 578, 582 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993). Here, the court implicitly determined that Homer passed over the front and rear of Sandy Hills's property during his tenure with Bonneville Drug. Moreover, Homer and others testified that Homer's customers and tenants regularly passed over Sandy Hills's property. Sandy Hills, however, claims that only Homer's use (or alleged lack thereof) can be considered and not use by others such as customers or tenants.

While it is true that public use in general is not enough for prescriptive easement purposes, use by those associated with...