Jensen v. Brown

• Decision Date: 07 December 1981
• Docket Number: No. 17146,17146
• Citation: 639 P.2d 150
• Parties: A. Lavar JENSEN, Plaintiff and Respondent, v. Knowlton H. BROWN and Virginia S. Brown, Defendants and Appellants.
• Court: Utah Supreme Court

Page 150

639 P.2d 150

A. Lavar JENSEN, Plaintiff and Respondent, v.Knowlton H. BROWN and Virginia S. Brown, Defendants and Appellants.

No. 17146.

Supreme Court of Utah.

Dec. 7, 1981.

Charles C. Brown, Salt Lake City, for defendants and appellants.

Jon J. Bunderson, Brigham City, for plaintiff and respondent.

OAKS, Justice:

This is an appeal from a judgment granting plaintiff a prescriptive easement across defendants' property and enjoining defendants from interfering with his use of it.The issues on appeal are (1) whether the evidence clearly preponderates against the trial court's finding of a prescriptive easement; (2) whether the trial court was deprived of jurisdiction by an irregularity in the temporary restraining order; and (3) whether the decree was contrary to equitable principles on the facts of this case.

Plaintiff and defendants are owners of adjoining pieces of property on Block 2 of Plat C in Brigham City, Utah.The First National Bank of Brigham City at one time owned this block, which is presently bounded on the north by Third North Street, on the south by John Adams Park, on the west by Fourth East Street, and on the east by Fifth East Street.On April 26, 1930, the bank conveyed the east one-half to plaintiff's predecessor in title and the west one-half to defendants' predecessor in title.Originally, the only access to what is now plaintiff's property was a roadway beginning at the northwest corner of Block 2, traversing in a southeasterly direction what is now defendants' property, crossing a bridge over an irrigation ditch, and proceeding south to what is now plaintiff's property.

Plaintiff acquired his property in 1948; defendants acquired theirs in 1973.Plaintiff originally reached his property by way of this northwest access, but a year or two after he began using it, the bridge collapsed.Thereafter, plaintiff cut his neighbors' fence directly east of Fourth East, made a gate, cleared some brush, added some fill dirt, and began traveling to his property in a relatively straight line from Fourth East Street eastward across defendants' property on the strip that is now the subject of this action.

Plaintiff commenced this action on July 6, 1979, alleging that defendants were blocking his roadway by digging the foundation of a house directly in its path.On that same day, a judge of the circuit court granted plaintiff a temporary restraining order.Five days later, following a hearing, the district court extended the temporary restraining order, and six days later (upon plaintiff's filing the required bond) entered a preliminary injunction.At the conclusion of trial, the district court decreed an eleven-foot-wide easement by prescription and permanently enjoined defendants from interfering with plaintiff's use of it.

This is a suit in equity.Richards v. Pines Ranch, Inc., Utah, 559 P.2d 948(1977).Since appeal may be had on the facts as well as the law in equity cases, it is our duty, when called upon, to weigh the facts as well as to review the law.Utah Constitution, Art. VIII, § 9;Utah R.Civ.P. 72(a);Nelson v. Nelson, 30 Utah 2d 80, 513 P.2d 1011(1973);Prowitt v. Lunt, 103 Utah 574, 137 P.2d 361(1943).

Although this Court's statements of the standard of review of findings of fact in equity cases have varied considerably, Stanley v. Stanley, 97 Utah 520, 528, 94 P.2d 465, 468(1939)(Wolfe, J., concurring), it is most commonly said that we reverse only when the evidence clearly preponderates against the findings of the trial court.Crimmins v. Simonds, Utah, 636 P.2d 478(1981);Utah County v. Baxter, Utah, 635 P.2d 61(1981);Peterson v. Carter, Utah, 579 P.2d 329(1978);Pagano v. Walker, Utah, 539 P.2d 452(1975);Nokes v. Continental Mining & Milling Co., 6 Utah 2d 177, 308 P.2d 954(1957);Mollerup v. Daynes-Beebe Music Co., 82 Utah 299, 24 P.2d 306(1933).This principle is well stated in the plurality opinion in Nokes v. Continental Mining & Milling Co., 6 Utah 2d at 178-179, 308 P.2d 954:

(T)he finding of the trial court will not be disturbed if the evidence preponderates in favor of the finding; nor, if the evidence thereon is evenly balanced or it is doubtful where the preponderance lies; nor, even if its weight is slightly against the finding of the trial court, but it will be overturned and another finding made only if the evidence clearly preponderates against his finding.

In substance, this is the same standard applied in those cases which state that we reverse only when the trial court's finding is against the clear weight of the evidence.McBride v. McBride, Utah, 581 P.2d 996(1978);Chevron Oil Co. v. Beaver County, 22 Utah 2d 143, 449 P.2d 989(1969);Metropolitan Investment Co. v. Sine, 14 Utah 2d 36, 376 P.2d 940(1962);Peterson v. Peterson, 112 Utah 554, 190 P.2d 135(1948).

In applying this standard, we are "mindful of the advantaged position of the trial judge who sees and hears the witnesses" and therefore "give due deference to his decisions,"McBride v. McBride, 581 P.2d at 997, but we are not required to affirm where the evidence does not provide the requisite support for the findings.Ingram v. Forrer, Utah, 563 P.2d 181, 183(1977).

An easement by prescription arises when the dominant estate owner's use of a passage across the servient estate has been open, notorious, adverse, and continuous for a period of 20 years.Richards v. Pines Ranch, Inc., supra;Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314(1966);Zollinger v. Frank, 110 Utah 514, 175 P.2d 714(1946).The district court found that "the Plaintiff has had the open, notorious, continuous, and visible use of a right of way over the defendants' land ... for a period of more than twenty years prior to the filing of the complaint in this action," and that the plaintiff's use was adverse and did not arise as "a neighborly accommodation" or "with the permission of the defendants or their predecessors in interest."After a careful review of the record, we are unable to say that the evidence clearly preponderates against these findings.

Defendants assert that plaintiff's use was not sufficiently adverse.We agree that "the use must be against the owner as distinguished from under the owner,"Zollinger v. Frank, 110 Utah at 517, 175 P.2d 714, but we cannot conclude that the evidence clearly preponderates against the district court's finding on this issue.The testimony is in disarray: contradictory (sometimes even self-contradictory), ambiguous, and voluminous.Even the cold transcript reveals a strong undercurrent of emotions in the courtroom.These are precisely the circumstances where prudence dictates deferral to the findings of the trier of fact...