Wasatch County v. Okelberry

• Decision Date: 30 November 2006
• Docket Number: No. 20050389-CA.,20050389-CA.
• Citation: 2006 UT App 473,153 P.3d 745
• Parties: WASATCH COUNTY, a body politic of the State of Utah, Plaintiff, Appellant, and Cross-appellee, v. E. Ray OKELBERRY, Brian Okelberry, Eric Okelberry, Utah Division of Wildlife Resources, West Daniels Land Association, and John Does 1-25, Defendants, Appellees, and Cross-appellants.
• Court: Utah Court of Appeals

153 P.3d 745

2006 UT App 473

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

No. 20050389-CA.

Court of Appeals of Utah.

November 30, 2006.

Thomas L. Low and Scott H. Sweat, Heber City, for Appellant and Cross-appellee.

Ryan D. Tenney, Howard Lewis & Petersen, Provo, for Appellees and Cross-appellants.

Before BENCH, P.J., McHUGH and ORME, JJ.

OPINION

McHUGH, Judge:

¶ 1 Wasatch County (Wasatch) appeals the trial court's ruling that principles of estoppel prevent it from exercising control over roads, located on land owned by West Daniels Land Association (the Association) and E. Ray Okelberry, Brian Okelberry, and Eric Okelberry (collectively, the Okelberrys),¹ that were adjudicated abandoned and dedicated to the public. The Okelberrys cross-appeal the trial court's determination that the roads were dedicated to the public under Utah Code section 72-5-104(1). See Utah Code Ann. § 72-5-104(1) (2001). We affirm in part and reverse and remand in part.

BACKGROUND

¶ 2 In 1957, the Okelberrys² purchased a tract of rural, undeveloped property in Wasatch County. The property is criss-crossed by a series of unimproved dirt roads including the four roads at issue in this appeal: the Thorton Hollow Road, Ridge Line Road, Parker Canyon Road, and Circle Springs Road (the Four Roads).³ The Four Roads begin and end at points outside the Okelberrys' property or are connected to roads that begin and end outside the property. At the time the property was purchased, it was bordered on the east and south by fences, separating the Okelberrys' property from United States Forest Service property. There were also multiple wire gates along the Four Roads such that persons traveling on the Four Roads generally had to open the gates before proceeding within the boundaries of the Okelberrys' property.

¶ 3 Sometime in 1989, the Okelberrys started barring public use of the Four Roads by constantly locking the gates and posting no trespassing signs. In the mid-1990s, the Okelberrys placed their property into a Cooperative Wildlife Management Unit (CWMU) that allowed them to realize a profit from exclusive hunting activities on the property. In 2001, twelve years after the Okelberrys began permanently locking the gates, Wasatch initiated suit to have the Four Roads declared public highways under Utah Code section 72-5-104. See Utah Code Ann. § 72-5-104.⁴ Under that provision, "[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." Id. § 72-5-104(1).

¶ 4 After a three-day bench trial, the court entered findings of fact and conclusions of law. First, the court "specifically found that there was not public use of the [Four Roads] in the 1940s or before and also . . . no evidence of vehicular use prior to the 1950s." The court also specifically found that Wasatch had never performed any maintenance on the Four Roads.

¶ 5 Turning to the evidence and testimony presented at trial, the court noted that Wasatch had presented witnesses, members of the general public, who testified that for different periods of time between 1957 and 1989 they freely used the Four Roads. The court noted that the Okelberrys' witnesses alternatively testified that beginning in the 1960s, the gates on the Four Roads were generally kept closed and "periodically locked for several days at a time and that signs were also posted on the gates and property which stated `No Trespassing—Private Property.'" Additionally, employees of the Okelberrys testified that they had, at times, asked people trespassing on the property or the roads to leave. After weighing the evidence, the court assumed the truth of the Okelberrys' factual assertions and nonetheless determined that it was "clear that individuals using the roads beginning in the late 1950s until the late 1980s or early 1990s used the roads without interruption, they used the roads freely, and though not constantly, they used the roads continuously as they needed."

¶ 6 The court also found that the majority of users were members of the general public, traveling without permission, and therefore used the Four Roads as a public thoroughfare. Finally, without defining exactly which ten years the Four Roads were used continuously as public thoroughfares, the court determined that between 1960 and 1990, public use "continued for at least ten years, if not much longer, or for multiple periods of ten years." Thus, the court concluded that the Four Roads had been dedicated to public use "well over ten years prior to 1989 when the Okelberrys began [permanently] locking the gates."

¶ 7 Although determining that the roads had been abandoned and dedicated to the public, the court found that Wasatch was equitably estopped from enforcing the dedication on behalf of the public. The court supported the estoppel determination with two findings. First, that "for a period of twelve years [the Okelberrys] exerted control and used the roads in an openly hostile manner to the public use of the streets." And second, although "little improvements have been made to the roads themselves," the Okelberrys had expended "large amounts of time and money" on their sheep and cattle operations as well as cultivated their business relationship with the CWMU. Wasatch appeals the trial court's judgment that it is equitably estopped from opening the Four Roads to public use, and the Okelberrys cross-appeal the trial court's ruling that the Four Roads are public roads by dedication.

ISSUES AND STANDARDS OF REVIEW

¶ 8 The Okelberrys challenge the trial court's determination that the Four Roads were abandoned and dedicated to the public under Utah Code section 72-5-104(1). See Utah Code Ann. § 72-5-104(1). "The trial court's ultimate conclusion that the facts of this case either satisfy or do not satisfy the requirements of section 72-5-104(1) is a mixed question of fact and law, which we review for correctness." State v. Six Mile Ranch Co., 2006 UT App 104, ¶ 9, 132 P.3d 687 (citing Heber City Corp. v. Simpson, 942 P.2d 307, 309 (Utah 1997)). However, because the legal requirements of a public highway determination under section 72-5-104(1) are "highly fact dependent and somewhat amorphous," we "give[] trial courts a fair degree of latitude in determining the legal consequences . . . of facts found by the court." Id. (quotations and citation omitted); accord Heber City Corp., 942 P.2d at 309-10. "`Therefore, when reviewing a trial court's decision regarding whether a public highway has been established under section [72-5-104(1)], we review the decision for correctness but grant the court significant discretion in its application of the facts to the statute.'" Six Mile Ranch Co., 2006 UT App 104 at ¶ 9, 132 P.3d 687 (alteration in original) (quoting Heber City Corp., 942 P.2d at 310).

¶ 9 The Okelberrys also challenge the sufficiency of the evidence, arguing that Wasatch has not provided clear and convincing evidence of continuous use as a public thoroughfare. See Utah Code Ann. § 72-5-104(1). "To establish the dedication of a public road, we require clear and convincing evidence." AWINC Corp. v. Simonsen, 2005 UT App 168, ¶ 7, 112 P.3d 1228 (citing Thomson v. Condas, 27 Utah 2d 129, 493 P.2d 639, 639 (1972)). Where a party challenges the sufficiency of the evidence, "[a]n appellate court must launch any review of factual findings from rule 52(a) of the Utah Rules of Civil Procedure and its clearly erroneous test. . . ." In re Z.D., 2006 UT 54, ¶¶ 28-29, 147 P.3d 401 (quotations omitted); see also Utah R. Civ. P. 52(a) ("Findings of fact . . . shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."). Although it is appropriate for a "reviewing court to consider the standard of proof the prevailing party below was required to meet," the trial court's findings of fact will only be reversed under the clearly erroneous standard embodied in rule 52(a) where a review of the record as a whole demonstrates the result is "against the clear weight of the evidence or leave[s] the appellate court with a definite and firm conviction that a mistake has been made." In re Z.D., 2006 UT 54 at ¶ 40, 147 P.3d 401; see also Western Kane County Special Serv. Dist. No. 1 v. Jackson Cattle Co., 744 P.2d 1376, 1377 (Utah 1987).

¶ 10 Alternatively, Wasatch argues that the trial court erred when it applied equitable estoppel to bar its future attempts to open the Four Roads to public use. "[W]hether the trial court committed reversible error in applying the doctrine of equitable estoppel" to a public road determination is a question of law, which is "reviewed for correctness without any special deference." Western Kane County, 744 P.2d at 1377-78.

ANALYSIS

I. Dedication to the Public

¶ 11 Under Utah Code section 72-5-104(1), "[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." Utah Code Ann. § 72-5-104(1). Thus, for a road to become a public highway under the statute, three elements must be met, "there must be (i) continuous use, (ii) as a public thoroughfare, (iii) for a period of ten years." Heber City Corp., 942 P.2d at 310, quoted in Six Mile Ranch Co., 2006 UT App 104 at ¶ 11, 132 P.3d 687.

¶ 12 The Okelberrys argue that the trial court's findings of fact were not supported by clear and convincing evidence; therefore, its conclusions that the Four Roads had been used continuously as public thoroughfares were in error. We will address each of these elements in turn, noting, however, that although each element "embodies a logically distinct...