Metro. Water Dist. of Salt Lake & Sandy v. Sorf

• Docket Number: 20220025-CA
• Decision Date: 07 December 2023
• Citation: 542 P.3d 87,2023 UT App 146
• Parties: METROPOLITAN WATER DISTRICT OF SALT LAKE <i>&</i> SANDY, Appellant, v. Zdenek SORF, Appellee.
• Court: Utah Court of Appeals

542 P.3d 87

2023 UT App 146

METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY, Appellant,

v.Zdenek SORF, Appellee.

No. 20220025-CA

Court of Appeals of Utah.

Filed December 7, 2023

Third District Court, Salt Lake Department, The Honorable Robert P. Faust, No. 100921025

Shawn E. Draney, Salt Lake City, Scott H. Martin, Danica N. Cepernich, and Nathanael J. Mitchell, Salt Lake City, Attorneys for Appellant

Paul M. Belnap, Salt Lake City, and S. Spencer Brown, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Michele M. Christiansen Forster and John D. Luthy concurred.

Opinion

HARRIS, Judge:

¶1 The Metropolitan Water District of Salt Lake & Sandy (the District) operates the Salt Lake Aqueduct (the Pipeline), a fortytwo-mile pipeline that provides culinary water for use in the Salt Lake Valley. Part of the Pipeline runs underneath Zdenek Sorf’s backyard. The District owns a 125-foot-wide easement (Easement)—acquired by warranty deed—over Sorf’s land for the purpose of operating and maintaining the Pipeline.

¶2 In 2009, Sorf installed improvements (Improvements) in his backyard, including a shed, a hot tub, a deck, and landscaping features. Some of the Improvements, in whole or in part, are located within the Easement. In 2010, the District sued Sorf, alleging that his Improvements unreasonably interfered with the District’s use (or potential use) of the Easement, and asked the trial court for, among other things, injunctive and declaratory relief compelling Sorf to remove the Improvements.

¶3 After a trial, a jury determined that Sorfs Improvements did not unreasonably interfere with the District’s use and enjoyment of the Easement. Following the verdict, the trial court entered judgment in favor of Sorf. The District appeals, asserting that the court improperly instructed the jury and improperly allowed testimony from Sorf’s expert witness. In particular, the District asks us to adopt a bright-line legal rule that the placement of any permanent structure inside an easement of definite dimensions conveyed by grant is unreasonable as a matter of law. We decline the District’s invitation to adopt such a legal rule in this case, reject the District’s remaining arguments, and therefore affirm the judgment.

BACKGROUND

¶4 The District is a governmental entity that provides water to many of the cities in the Salt Lake Valley. Between 1939 and 1951, the District constructed the Pipeline, which runs for approximately forty-two miles, mostly underground, from Deer Creek Reservoir near the top of Provo Canyon to a terminal storage reservoir near the mouth of Parleys Canyon. The Pipeline is made of steel (in some sections) and reinforced concrete (in others) and is large enough for an average-sized person to walk upright inside it: the Pipeline has a sixty-nine-inch inside diameter and an eighty-four-inch outside diameter. The concrete part of the Pipeline consists of a series of twenty-foot-long sections, with each one weighing about twenty tons. The Pipeline plays an important role in supplying adequate culinary water for the large and growing population of the Salt Lake Valley. During most of the summer, the Pipeline runs at its maximum capacity, transporting about 113 million gallons of water per day.

¶5 The strip of land under (or over) which the Pipeline runs is known as the SLA Corridor. Parts of the real property comprising the SLA Corridor are owned by the District outright. But other parts are owned by third parties, and in those sections the District holds easements over the land; those easements allow the District to use the SLA Corridor as necessary to operate and maintain the Pipeline. In 1946, the District acquired—by warranty deed and for good and valuable consideration—the Easement over the property currently owned by Sorf. Under its specific terms, the Easement allows the District "to construct, reconstruct, operate and maintain a pipeline or pipelines on, over and across" Sorf’s property. The deed describes with particularity the metes and bounds of the Easement: as relevant here, the Easement is 125 feet wide for most of its length and passes through Sorf’s backyard.¹

As it passes through Sorf’s property, the Pipeline is buried about eight feet underground, and is located off-center, some fifty feet from the Easement’s eastern boundary and some seventy-five feet from its western boundary.

¶6 Sorf purchased his property in 1988, and at the time found the backyard to be "a mess" with "a bunch of trees and brushes." Starting in 2009, Sorf began the process of improving his backyard, and he removed many of the trees and other vegetation that had been there since his acquisition. More significantly for present purposes, Sorf also constructed or installed the Improvements in his backyard, including a covered deck with a hot tub, a larger uncovered deck, a "small shed on concrete blocks," a "Tuff Shed barn" with a "concrete slab" underneath and around it, a "pond and water feature," a decorative rock wall, and a "rock retaining wall."² The Improvements are located, in whole or in part, inside the 125-foot-wide Easement. Some of them are located on the margins of the Easement, some distance from the Pipeline, but others are located closer to the center of the Easement, near the Pipeline’s location. All the Improvements are located at least nineteen feet from the center line of the Pipeline, except for one section of the decorative rock wall that runs perpendicular to the Pipeline and crosses it at one point. A visual depiction of these Improvements and their proximity to the Pipeline is included in an appendix to this opinion.

¶7 When the District learned of Sorf’s Improvements, it informed Sorf that he needed permission from the District to build them, which permission the District later denied. Despite the District’s disapproval, Sorf continued with installation of the Improvements, and the District responded in October 2010 by filing this lawsuit. In the suit, the District alleged that Sorf’s Improvements unreasonably interfered with the District’s use and enjoyment of the Easement.³ Sorf failed to timely respond to the complaint, and default judgment was entered against him. But in this case’s first trip to the appellate courts, our supreme court set aside that default judgment and remanded the case to the trial court for further proceedings. See Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf, 2013 UT 27, ¶ 26, 304 P.3d 824.

¶8 After remand, Sorf filed a motion for summary judgment asserting that the District’s easement-interference claims were not ripe for adjudication because the District did not have any current plans to refurbish or replace the Pipeline. The trial court granted Sorf’s motion, noting that the Pipeline "is in good shape and all indications are that it will not need to be accessed for reconstruction or maintenance for at least the next 10-15 years," and that therefore "no actual or imminent clash of legal rights related to the [E]asement" was before the court. In this case’s second trip to the appellate courts, our supreme court again reversed, concluding that there was a justiciable question about whether Sorf’s Improvements "encroach upon [the District’s] property rights" and about whether Sorf "has unreasonably interfered with" the District’s Easement. See Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf 2019 UT 23, ¶ 12, 445 P.3d 443. Specifically, the court stated that "the question left unanswered … is whether [Sorf’s Improvements] have interfered with [the District’s] present right to access the [Pipeline] through its [E]asement, for the purposes of ongoing maintenance." Id.

¶9 Following the second remand, the case proceeded toward trial. In the weeks leading up to trial, the District submitted proposed jury instructions and a proposed special verdict form, several aspects of which are relevant to this appeal. First, the District asked the trial court to instruct the jury that any "permanent structure located within an easement of definite location and dimensions is unreasonable" as a matter of law. The court refused to give the instruction, offering its view that the proposed instruction did not reflect current Utah law.

¶10 Second, the District asked the trial court to give the following jury instructions regarding Sorf’s and the District’s respective obligations regarding the Easement:

Actions and things that make it more difficult for the owner of an easement to use the easement, that interfere with the ability to maintain and repair improvements built for use of the easement, or that make using the easement more risky are considered to be unreasonable interferences that are not allowed.

When deciding whether Mr. Sorf’s [I]mprovements unreasonably interfere with the District’s use of its [E]asement or not, you should consider the character of the [I]mprovements and the likelihood that they will make future use of the [E]asement more difficult. If [an] improvement is temporary and easily removed, it is generally not unreasonable. The more expensive the improvement is or the more difficult it likely is to remove, the more likely it is that the improvement is an unreasonable interference with the [E]asement.

And,

In using its [E]asement for the repair, replacement, and reconstruction of the [Pipeline], the District has the right to use the full width of its [E]asement. The District does not need to establish that the full width is necessary or reasonably necessary for its use. It also is not required to use a very expensive or unusual method because Mr. Sorf prefers it or because that method would be slightly less burdensome to Mr. Sorf’s property.

¶11 The trial court refused to give these instructions in precisely the form suggested by the District. Instead, the court instructed the jury as follows:

When deciding whether Mr. Sorf’s [I]mprovements unreasonably interfere[ ] with the District’s use of its [E]asement or not, you may consider the

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