Wasatch County v. Okelberry

• Decision Date: 28 January 2010
• Docket Number: No. 20080988-CA.,20080988-CA.
• Citation: 226 P.3d 737,2010 UT App 13
• Parties: WASATCH COUNTY, a body politic of State of Utah, Plaintiff and Appellee,v.E. Ray OKELBERRY, Brian Okelberry, Eric Okelberry, West Daniels Land Association, Utah Division of Wildlife Resources, and John Does 1-25, Defendants and Appellants.
• Court: Utah Court of Appeals

226 P.3d 737
2010 UT App 13

WASATCH COUNTY, a body politic of State of Utah, Plaintiff and Appellee,
v.
E. Ray OKELBERRY, Brian Okelberry, Eric Okelberry, West Daniels Land Association, Utah Division of Wildlife Resources, and John Does 1-25, Defendants and Appellants.

No. 20080988-CA.

Court of Appeals of Utah.

Jan. 28, 2010.

226 P.3d 738

Don R. Petersen and Leslie W. Slaugh, Provo, for Appellants.

Thomas L. Low and Scott H. Sweat, Heber City, for Appellee.

Before Judges ORME, THORNE, and BENCH.¹OPINIONTHORNE, Judge:

¶ 1 Defendants E. Ray Okelberry, Brian Okelberry, Eric Okelberry, and West Daniels Land Association (collectively, the Okelberrys) appeal from the trial court's October 23, 2008 order made following an order of remand by the Utah Supreme Court, see Wasatch County v. Okelberry, 2008 UT 10, 179 P.3d 768. The Okelberrys argue that the trial court improperly applied the standard for ascertaining continuous use as a public thoroughfare under Utah Code section 72-5-104 (the Dedication Statute), see Utah Code Ann. § 72-5-104 (2009). The Okelberrys assert that the district court erred in its application of the Utah Supreme Court's recently articulated standard for determining what qualifies as a sufficient interruption to restart the running of the required ten-year period under the Dedication Statute. The Okelberrys also argue that the trial court erred in denying Defendants' Motion for Entry of Supplemental Findings and Conclusion; Or Alternatively For New Trial Or Presentation of Additional Evidence. We reverse and remand.

BACKGROUND

¶ 2 This is an appeal from the trial court's decision on remand, and detailed facts are set forth in Wasatch County v. Okelberry, 2006 UT App 473, ¶¶ 2-7, 153 P.3d 745, and

226 P.3d 739

Wasatch County v. Okelberry, 2008 UT 10, ¶¶ 2-7, 179 P.3d 768. We reiterate only the facts relevant to the issues addressed in this appeal.

¶ 3 The Okelberrys are owners of real property located in Wasatch County. Several unimproved roads cross through sections of the Okelberrys' property. On August 24, 2001, Wasatch County filed a complaint for declaratory judgment and quiet title against the Okelberrys, seeking to have the roads that cross the Okelberrys' property declared dedicated and abandoned to public use pursuant to the Dedication Statute.

¶ 4 During a three-day bench trial, Wasatch County presented several witnesses that testified they had used the roads at issue without the Okelberrys' permission for recreational purposes during the 1960s, 1970s, and 1980s. The Okelberrys presented evidence and testimony that members of the public had not had unrestricted access to the roads, but that gates on the roads had been locked, at least occasionally, as early as the late 1950s and that “No Trespassing,” “Keep Out,” or “Private” signs were posted.

¶ 5 At the conclusion of the bench trial, the trial court entered findings of fact and found by clear and convincing evidence that the roads at issue had become dedicated and abandoned to public use. The trial court further decided that Wasatch County was equitably estopped from opening the roads to public use because the Okelberrys had, since 1989, asserted private control over the roads. Wasatch County appealed the trial court's equitable estoppel determination, and the Okelberrys cross-appealed the trial court's decision that the roads had been dedicated to the public. The court of appeals reversed the trial court's equitable estoppel decision and affirmed the decision regarding the public dedication of the roads. See Okelberry, 2006 UT App 473, ¶ 33, 153 P.3d 745.

¶ 6 The Okelberrys filed a petition for writ of certiorari to the Utah Supreme Court, which that court granted. In the resulting opinion, the supreme court recognized the need to clarify the law, see Okelberry, 2008 UT 10, ¶ 12, 179 P.3d 768, and articulated a standard for determining what qualifies as a sufficient interruption to restart the running of the required ten-year period under the Dedication Statute, see id. ¶ 15 (“An overt act that is intended by a property owner to interrupt the use of a road as a public thoroughfare, and is reasonably calculated to do so, constitutes an interruption sufficient to restart the running of the required ten-year period under the Dedication Statute.”). In applying the newly articulated standard, the supreme court noted that several factual questions remained regarding whether the Okelberrys intended the signs to interrupt public use of the roads, see id. ¶ 18 (“[W]hile it is clear that the posting of the signs constituted an overt act, it remains a factual question whether the Okelberrys intended the signs to interrupt public use of the roads and whether the posting of the signs was reasonably calculated to do so. Questions also remain as to when the signs were posted and whether trespassers were asked to leave, and if so, when and how many.”), and whether and when the Okelberrys locked the gates, see id. ¶ 19 (“The Okelberrys also claimed at trial that the gates were periodically locked for several days at a time beginning in the late 1950s. Here again, while the trial court assumed this claim to be true for purposes of its analysis, it did not make a factual finding on this issue.... [F]actual questions remain as to whether and when such an event or events occurred.”). The supreme court remanded the case for the trial court to make these factual determinations.

¶ 7 On remand, Wasatch County filed a motion for further findings. The Okelberrys responded and filed a cross-motion seeking supplemental findings, a new trial, or for leave to present additional evidence to address the supreme court's recently articulated interruption standard. The trial court held oral arguments, made further specific findings of fact, and held that, under the Dedication Statute, each of the four roads was dedicated and abandoned to the use of the public by continuous use as a public thoroughfare for over ten years.

ISSUES AND STANDARDS OF REVIEW

¶ 8 The Okelberrys argue that the trial court erred by inappropriately utilizing the “interruption of continuous use” element

226 P.3d 740

of the Dedication Statute. On appeal, “[a]n appellate court ... 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.” Utah County v. Butler, 2008 UT 12, ¶ 9, 179 P.3d 775 (second omission and second and third alterations in original) (internal quotation marks omitted).

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