Utah County v. Butler

• Decision Date: 12 February 2008
• Docket Number: No. 20070009.,20070009.
• Citation: 2008 UT 12,179 P.3d 775
• Parties: UTAH COUNTY and State of Utah, by and through its Department of Natural Resources and Division of Wildlife Resources, Plaintiffs and Respondents, v. Randy BUTLER, Donna Butler, Blaine Evans, Linda Evans, Margaret Condley, Elizabeth Condley, and John Does 1-15, Defendants and Petitioners.
• Court: Utah Supreme Court

179 P.3d 775

2008 UT 12

UTAH COUNTY and State of Utah, by and through its Department of Natural Resources and Division of Wildlife Resources, Plaintiffs and Respondents, v. Randy BUTLER, Donna Butler, Blaine Evans, Linda Evans, Margaret Condley, Elizabeth Condley, and John Does 1-15, Defendants and Petitioners.

No. 20070009.

Supreme Court of Utah.

February 12, 2008.

M. Cort Griffin, Robert J. Moore, Provo, for plaintiff Utah County.

Mark L. Shurtleff, Att'y Gen., Martin B. Bushman, Asst. Att'y Gen., Salt Lake City, for plaintiff State of Utah.

Scott L. Wiggins, Salt Lake City, for defendants.

On Certiorari to the Utah Court of Appeals.

DURRANT, Justice:

INTRODUCTION

¶ 1 In this and two companion cases that we also decide today,¹ we consider the operation and application of Utah Code section 72-5-104(1) (the "Dedication Statute"). The Dedication Statute provides that "[a] highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years."² We granted certiorari in this case to review three issues related to the Dedication Statute: (1) whether the court of appeals erred in evaluating the trial court's determination that the public had continuously used the road at issue in this case according to the requirements of the Dedication Statute; (2) whether trespassing may constitute a public use pursuant to the Dedication Statute; and (3) whether the court of appeals erred in reviewing the trial court's failure to designate a specific ten-year period of continuous use and, if so, whether that failure constituted reversible error. We affirm the decision of the court of appeals, which, like the trial court, found the road at issue to be dedicated and abandoned as a public highway.³

¶ 2 We also granted certiorari to determine whether the court of appeals erred in its application of Utah Code section 72-7-104(4) to the facts of this case. As to this issue, we reverse the decision of the court of appeals.

BACKGROUND

¶ 3 Bennie Creek Road (the "Road") begins in Birdseye, Utah, at a junction with U.S. Highway 89 and proceeds approximately two and one-half miles west until it reaches the edge of the Uinta National Forest. The Road continues into the forest, providing access to hiking trails, camping areas, and the Nebo Loop Road. Before entering the forest, the Road crosses real property owned by Randy Butler, Donna Butler, Blaine Evans, and Linda Evans (collectively, the "Butlers").

¶ 4 In 1996, Mr. Butler erected a locked gate across the Road. The following year, Utah County served Mr. Butler with notices instructing him to remove the gate. Mr Butler did not remove the gate and Utah County thereafter filed this action to have the Road declared dedicated and abandoned to public use pursuant to Utah Code section 72-5-104(1).⁴ Utah County also sought an order enjoining the Butlers from blocking access to the Road and forcing them to remove the gate and requested monetary relief from the Butlers of ten dollars a day for each day the Road remained closed following delivery of the notices pursuant to Utah Code section 72-7-104(4).

¶ 5 During an eight-day bench trial, the trial court heard testimony from over sixty witnesses — including previous and current owners of the relevant property, various recreational users of the Road, Utah Division of Wildlife Resources employees, Uinta National Forest workers, and county employees assigned to maintain the Road — regarding the use and condition of the Road from 1925 to the present time. These witnesses provided conflicting testimony as to the presence and purpose of gates on the Road, the placement of "No Trespassing" signs, and the necessity of obtaining permission of a landowner to use the Road.

¶ 6 In its Findings of Fact, the trial court cited the conflicting testimony regarding locked gates. The gates, the court found, were used for controlling livestock "and not intended to restrict travel on the Road." The court also found that the signs and painted posts along the Road were positioned such that "they prohibited travel off of the Road, not on the Road." And with respect to other evidence that travel on the Road was restricted, the court found that winter snow impeded all travel on the Road, and that springs or bogs, which flooded the Road in wet years, impeded travel by vehicle but not by foot, horseback, or wagon. The court also found that, although there was testimony that the Road was at times impassable because it was used to deliver irrigation water, "[a] clear and convincing majority of witnesses ... traveled the Road unrestricted by irrigation practices." Based on these findings, the trial court concluded that the Road "has been dedicated and abandoned to the use of the public because it has been continuously used as a public thoroughfare for a period of ten years" and ordered the Butlers to remove "anything that blocks, locks, or otherwise interferes with public access across the Road."

¶ 7 Although the trial court otherwise found in favor of Utah County, the court denied Utah County's request for damages. The court explained in its Memorandum Decision that "for some of the time since construction of the metal Butler gate the [R]oad has been obstructed and for some of the time it has not." Because the county did not present evidence "to clarify how many of the intervening 2,561 days were days when the [R]oad was obstructed and how many were not," the court chose not to impose a monetary penalty on the Butlers.

¶ 8 The Butlers appealed the court's decision regarding the public dedication of the Road, and Utah County cross-appealed the court's failure to award damages. The court of appeals affirmed the trial court's conclusion that the Road has been dedicated and abandoned to public use but reversed its damages determination.⁵ We granted certiorari on three issues relating to the court of appeals' application of the Dedication Statute and one issue regarding the award of damages.

STANDARDS OF REVIEW

¶ 9 "On certiorari, we review for correctness the decision of the court of appeals, not the decision of the district court."⁶ "The correctness of the court of appeals' decision turns on whether that court correctly reviewed the trial court's decision under the appropriate standard of review."⁷ As to the Dedication Statute, "[a]n appellate court reviews a trial court's legal interpretation of the Dedication Statute for correctness and its factual findings for clear error."⁸ But whether the facts of a case satisfy the requirements of the Dedication Statute is a mixed question of fact and law that involves various and complex facts, evidentiary resolutions, and credibility determinations.⁹ An appellate court therefore reviews "a trial court's decision regarding whether a public highway has been established under [the Dedication Statute] ... for correctness but grant[s] the court significant discretion in its application of the facts to the statute."¹⁰ The question of whether the court of appeals properly awarded damages under Utah Code section 72-7-104(4) is an issue of statutory interpretation, a question of law that we review for correctness.¹¹

ANALYSIS

¶ 10 We granted certiorari to review three issues concerning the Dedication Statute, which reads as follows: "A highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years."¹² The three issues relate to each of the three elements of this statute — "continuous use," "a public thoroughfare," and "a period of ten years" — which we review, in that order, below. Following our review of the elements of the Dedication Statute, we address the final issue on which we granted certiorari, which concerns the damages to which a party claiming dedication is entitled under Utah Code section 72-7-104(4).

I. CONTINUOUS USE

¶ 11 We first consider the court of appeals' affirmation of the trial court's finding that the Road was continuously used as a public thoroughfare. The Butlers argue that the trial court failed to consider a variety of circumstances that interrupted the public's continuous use of the road. We require parties challenging factual findings of a lower court to "first marshal all the evidence in support of the finding and then demonstrate that the evidence is legally insufficient to support the finding even when viewing it in a light most favorable to the court below."¹³ To accomplish this, a party "may not simply cite to the evidence which supports his or her position and hope to prevail."¹⁴ Rather, a party should "construct the evidence supporting the adversary's position, and then `ferret out a fatal flaw in the evidence.'"¹⁵ "[P]arties that fail to marshal the evidence do so at the risk that the reviewing court will decline ... to review the trial court's factual findings."¹⁶ Nevertheless, we "retain[ ] discretion to consider independently the whole record and determine if the decision below has adequate factual support."¹⁷

¶ 12 In this case, the Butlers completely failed to marshal the evidence in support of the trial court's conclusion that the Road was continuously used as a public thoroughfare. In their brief, the Butlers simply asserted that "[t]here is no evidence to marshal in support of the district court's finding." This assertion is patently false, as there is abundant evidence in the record supporting the trial court's finding. Moreover, the trial court repeatedly referenced such evidence in its written decision. Because the Butlers' failure to marshal is particularly egregious, we would ordinarily decline to review the factual findings of the lower court under these circumstances. But because we decide this case in tandem with two companion cases that also involve the Dedication Statute,¹⁸ one of which sets forth the standard for ascertaining whether a road has been "continuously used,"¹⁹ we choose to exercise our discretion and...