Judd v. Bowen, 20140285-CA

CourtCourt of Appeals of Utah
Citation397 P.3d 686
Docket NumberNo. 20140285-CA,20140285-CA
Parties Robert L. JUDD III and Charles L. Allen, Appellees, v. David BOWEN, Appellant.
Decision Date30 March 2017

Michael D. Zimmerman, Clemens A. Landau, and Russell A. Cline, Salt Lake City, Attorneys for Appellant.

Bruce J. Nelson and Jeffery S. Williams, Salt Lake City, Attorneys for Appellees.

Judge Stephen L. Roth authored this Opinion, in which Justice John A. Pearce concurred.1 Judge Gregory K. Orme concurred in part and dissented in part, with opinion.


ROTH, Judge:

¶1 David Bowen appeals from a judgment granting a prescriptive easement to Robert L. Judd III and Charles L. Allen to use and park on his driveway. We affirm in part and reverse in part and remand the case for further proceedings.


¶2 This appeal centers on a century-old circular driveway (the Driveway) between two cabins in Big Cottonwood Canyon. The cabin on the southeast of the Driveway belongs to the Bowens,2 and the Driveway is located almost entirely on their property. The cabin to the northeast of the Driveway belongs to the Judds, who claim a legal right stemming from historic usage to access their property over the Driveway and to park within its bounds.

¶3 A dirt road diverging from the top of Big Cottonwood Canyon Scenic Byway provides access to both properties. In the early 1900s, the predecessors of the two parties built cabins next to each other. At some point during that time, the Driveway was also constructed. The dirt access road terminates at the Driveway. The Driveway is circular, one lane, and narrow, bounded along its outer and inner borders by foliage, shrubbery, boulders, and sloping ground. With the exception of a sliver of its northern portion, the Driveway is located on the Bowens' property. While the Driveway is currently not the only access or parking available for Judd cabin users, over the years it has been their primary access for ingress, egress, and parking purposes. The Driveway also currently provides the Judds' only access to a private driveway in front of their cabin. For the Bowens and their predecessors, the Driveway has served as the only access to their cabin for the owners and their guests.

¶4 The cabins' original builders had been close friends, and until 2008, the Judds and Bowens had coexisted peaceably. For many years, descendants of the original owners of both cabins shared use of their respective cabins among their family members, with no single family group or member assigned more than a few weeks of dedicated time at either cabin per year. In addition, both groups used their respective cabins during holidays and other special occasions for parties and family gatherings. The Bowens maintain that it was always understood that the Driveway was the Bowens' property, and that the Judds' use was permitted only out of neighborly accommodation, while the Judds maintain that they had "always" used the Driveway as a sort of given; it was their "custom" and "just what [they'd] done." Until relatively recently, the users of the two cabins rarely encountered each other on the Driveway, and the respective groups only occasionally hampered each other's ability to access or enjoy the use of it. On the rare occasions when a Bowen user was already parked on the Driveway when a Judd user arrived, the Judd user would "work around" that impediment and find other access and parking. On the occasions when a Judd user was parked on the Driveway or otherwise blocking a Bowen user's access and parking, the Bowens would request that the Judd user move the vehicle, and the request was always accommodated.

¶5 In 2006, David Bowen bought out his siblings' interests and became the sole owner of the Bowen cabin. As a result, his use of the Bowen cabin increased while the Judds continued to use their cabin under the customary assigned-time arrangement. In 2008, an incident occurred where a Judd user, for the first time, refused to move a vehicle off the Driveway at the Bowens' request. A week later, one of the trustees who shared an interest in the Judds' cabin informed the Bowens that the Judds were asserting a prescriptive right to use and park on the Driveway, and that if the Judds were not able to park on the Driveway, neither could the Bowens. Subsequently, the Bowens erected gates that blocked the Judds from using the portion of the Driveway closest to the Bowens' cabin while allowing the Judds access to the side of the Driveway closest to the Judds' property. The relationship continued to deteriorate, however, as access-blocking incidents increased. The Bowens eventually told the Judds that they would no longer be allowed to use the Driveway "absent a court order."

¶6 The Judds filed suit in 2011 to establish a prescriptive right to use the Driveway for ingress, egress, and parking purposes. Following a four-day trial, the trial court found that the Judd usage had been "open, notorious," "under claim of right," and "adverse" for the twenty-year prescriptive period. The court accordingly awarded the Judds a prescriptive easement for "reasonable access and parking purposes associated with" the Judds' cabin usage. It also ordered the Bowens to "immediately remove any gates, barricades, rocks, decorative lighting, and recently-grown foliage blocking or interfering with [the Judds'] historic access and use" of the Driveway. The court ordered both parties to "refrain from blocking any users" of either property and to "allow appropriate parking thereon that does not interfere with either parties' use of the cabins located on such properties."

¶7 The court's judgment did not bring peace, however; both parties filed motions to enforce the judgment and hold the other in contempt based on various alleged violations of the court's order. The trial court clarified its final judgment in a January 2015 memorandum decision. In that decision, among other things, the trial court ordered the Bowens to remove a decorative rock border they had installed "sometime after 2008" because it was "not historical," to "restore the walkway adjacent to the Bowen Cabin to a parking spot as was used historically prior to 2008," and to remove "recently grown foliage and trees," which it defined as growth that had occurred following the 1950s to 1970s and is "now infringing upon the driveway."3 The Bowens appeal.


¶8 The Bowens argue that the trial court erred when it granted a prescriptive easement to the Judds. The Bowens also argue, in the alternative, that the trial court abused its discretion in determining the easement's scope by granting parking rights as part of the easement and "failing to set the boundaries of the easement with reasonable certainty."


¶9 Prescriptive easements have a long history in the common law. Initially, they were based upon the rationale that a long and particular use of land by a person other than the landowner was evidence of a lost grant in favor of that user. See Richins v. Struhs , 17 Utah 2d 356, 412 P.2d 314, 315–316 (1966) ; Big Cottonwood Tanner Ditch Co. v. Moyle , 109 Utah 213, 174 P.2d 148, 151 (1946). Legal recognition of a prescriptive right was said to restore and maintain that lost grant, and the extent of the right was determined by the type of use made of the land during the prescriptive period. Big Cottonwood , 174 P.2d at 151–52. While the legal fiction behind prescriptive easements is now seldom invoked, it continues to provide justification for conferring prescriptive rights—namely, that "peace" and the "good order of society" is assured by "leaving a long established status quo at rest rather than by disturbing it." Richins , 412 P.2d at 315. In other words, if a non-owner has long made use of land in a particular manner without objection from the land's owner, to prevent "dispute[s] after several decades of amicable use," the law recognizes a prescriptive right for the non-owner to continue making use of the land in the same way. See Homer v. Smith , 866 P.2d 622, 628 (Utah Ct. App. 1993) ("[T]he doctrine of prescriptive easement was designed to give legal sanction to property arrangements that have existed peacefully, openly, continuously and without objection for the prescriptive period.").

¶10 To attain legal recognition of a prescriptive easement in Utah, the claimant must prove by clear and convincing evidence that the claimant's "use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years." Orton v. Carter , 970 P.2d 1254, 1258 (Utah 1998) (citation and internal quotation marks omitted); see also Lunt v. Lance , 2008 UT App 192, ¶ 18, 186 P.3d 978 ("Each of [the prescriptive easement elements] must be proven by clear and convincing evidence."). However, "once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Valcarce v. Fitzgerald , 961 P.2d 305, 311 (Utah 1998) (plurality opinion). At that point, the landowner, "to prevent the prescriptive easement from arising[,] has the burden of showing that the use was under him instead of against him." Zollinger v. Frank , 110 Utah 514, 175 P.2d 714, 716 (1946). Stated differently, once the presumption of adverse use arises, "the owner of the servient estate then has the burden of establishing that the use was initially permissive" or that the adverse use, at some point during the prescriptive period, became permissive, to prevent the prescriptive right from being established. Valcarce , 961 P.2d at 311–12. "In order for the use to have been permissive it would have to appear that the parties understood that the driveway was upon the [landowner's] property; that it was with this understanding that [the landowner] gave their consent to its use; and similarly that the [claimants] so understood and accepted and used it." Richins , 412 P.2d at 316.

¶11 The Bowens challenge the trial court's conclusions regarding every required...

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