Orton v. Carter, No. 970391

• Court: Utah Supreme Court
• Writing for the Court: STEWART; Chief Justice HOWE, Associate Chief Justice DURHAM
• Citation: 970 P.2d 1254
• Parties: Frank R. ORTON and Robert F. Orton, Trustees of the H. Frank Orton and Gwen R. Orton Trust, Plaintiffs and Appellees, v. Rex M. CARTER and Carol M. Carter, Trustees of the Rex M. Carter Family Living Trust, Defendants and Appellants.
• Docket Number: No. 970391
• Decision Date: 10 November 1998

Page 1254

970 P.2d 1254 Frank R. ORTON and Robert F. Orton, Trustees of the H. Frank
Orton and Gwen R. Orton Trust, Plaintiffs and Appellees,
v.
Rex M. CARTER and Carol M. Carter, Trustees of the Rex M.
Carter Family Living Trust, Defendants and Appellants. No. 970391. Supreme Court of Utah. Nov. 10, 1998.

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J. Michael Gottfredson, Salt Lake City, for plaintiffs.

J. Bryan Jackson, Cedar City, for defendants.

STEWART, Justice:

Defendants Rex M. Carter and Carol M. Carter, as trustees of the Rex M. Carter Family Trust (the "Carters"), appeal from the trial court's ruling in favor of plaintiffs H. Frank Orton and Robert F. Orton, trustees of the H. Frank Orton and the Gwen R. Orton Trusts (the "Ortons"). The trial court determined the boundary between properties owned by the parties and found that each party owned an easement in a contiguous portion of the other party's property. For the reasons stated below we affirm the trial court's decision.

I. ORIGINS OF THE DISPUTE

The Carters and the Ortons own adjacent properties along Center Street in Panguitch, Utah. The Carters own the south 156 feet of Lot 3 (the "West Lot"), while the Ortons own the west half of Lot 4, which is directly east of the Carters' property (the "East Lot"). The line running north-south between the two properties is disputed.

Before 1925, when for at least two months both properties were owned by a common person, and then into the 1930s, an old fence running north to south separated the adjoining properties. The original owners of both lots occupied their properties up to that line. Sometime during the 1930s, however, the owners of both lots agreed to tear down a portion of the old fence and establish a common lane between them. Both parties voluntarily gave the use of eight feet of their properties, measured from the old fence line, to create this common lane. The lane was thus approximately sixteen feet wide and ran perpendicular to the southern boundaries of both lots northward for approximately 115 feet. Parallel wooden fences were built on both sides of the lane with gates on either side for access to the respective properties. The northern portion of the old fence was not removed at that time; it remained visible until sometime in 1992 when it was removed by the defendants.

The owners of the East Lot used the common lane until 1940 when the East Lot was sold to the Ortons. Likewise, the Ortons have continued to use the lane since they purchased the lot. Since 1969, Frank Orton has used the lane as the sole access to a garage he built in the northwest corner of the East Lot. The garage opens facing west, toward the Carters' West Lot. The prior owners of the Carters' West Lot used the lane from the 1930s until 1972 when the property was sold to the Carters.

In 1972 when the Carters purchased the West Lot, the wooden fence marking the eastern boundary of the common lane still existed, running south from the northwest corner of the Ortons' garage to the street. This fence was later replaced by a short chain link fence. The wooden fence that marked the western boundary of the common lane in the Carters' West Lot was no longer standing. The Carters were nevertheless aware that Frank Orton was using a portion of the West Lot for access to the garage.

After purchasing the West Lot, the Carters constructed an office building to be used by the United States Forest Service and paved the surrounding property to create a

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parking lot for employees and visitors. The entire area of the common lane was also paved up to the eastern boundary fence. In 1992 and after, the Ortons approached the Carters to assure continued access to their garage. Rex Carter asked John Riggs, son of the West Lot's former owner, where the eastern boundary of his property was located. John Riggs showed Carter the remaining portion of the old fence in the north end of the Carters' property that marked the purported boundary between the two properties. John Riggs also informed Carter of the common lane and that each of the prior owners had contributed one-half the land for creation of the lane. Sometime thereafter the Carters hired a surveyor to determine the boundary between their property and the Ortons' according to the publicly recorded descriptions. The Carters then removed what remained of the old fence line and erected a new chain link fence running about ten feet east of the former location.

The Ortons complained to the Carters about the placement of the new fence north of their garage and asserted an easement across the eastern edge of the Carters' property. No mention of an easement appeared in either the Carters' title or the public record. The Ortons commenced this legal action to establish by judicial decree the easements necessary for their use of the lane and to establish the legal boundary between the two properties.

At trial the Carters contended that the proper boundary between the properties was the eastern side of the historic common lane, now marked by the short chain link fence running from the Ortons' garage south to the street. They also argued that no easement existed since the alleged agreement to create the easement was oral and was never recorded in the public records and because use of the common lane was permissive as among the prior owners and the Ortons. The Ortons, conversely, contended that the boundary is in the middle of the common lane, eight feet west of the short chain link fence, and was marked for decades by the old fence line, the remaining portion of which the Carters had recently removed. The Ortons further argued that the original agreement to create the common lane in fact created a common easement which the Carters were estopped from challenging.

The trial court held that a boundary by acquiescence marked by the old fence line had been created between the two lots by the previous owners of both lots. The trial court also concluded that common easements existed in the location of the historic lane, which both the Carters and the Ortons were entitled to use in perpetuity. The Carters challenge both conclusions on appeal.

II. BOUNDARY BY ACQUIESCENCE

A. Standard of Review

"An appellate court 'will not reverse the findings of fact of a trial court sitting without a jury unless they are ... clearly erroneous.' " State v. Irizarry, 945 P.2d 676, 678 (Utah 1997) (quoting inter alia MacKay v. Hardy, 896 P.2d 626, 629 (Utah 1995)). Generally, we review a trial court's legal conclusions for correctness, according the trial court no particular deference. See Newspaper Agency Corp. v. Utah State Tax Comm'n, 938 P.2d 266, 267 (Utah 1997); State v. Christensen, 866 P.2d 533, 535 (Utah 1993).

"The finding that an easement exists is a conclusion of law." Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998). Just recently, however, this Court noted that such a finding is

the type of highly fact-dependent question, with numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts. We therefore overturn the finding of an easement only if we find that the trial judge's decision exceeded the broad discretion granted.

Id. (citation omitted). Similarly, in Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314, 315 (1966), we stated that when reviewing a lower

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court's finding of an easement, "we make allowance for the advantages the trial court has because of [his or her] proximity to the parties, the witnesses and the trial." In addition, we have also...