Kyle R. Hall, Appellee,
David L. Peterson, Appellant.
District Court, Manti Department The Honorable Marvin D.
Bagley No. 120600065.
L. Wright and Cherylyn Egner, Attorneys for Appellant
L. Booher, Clemens A. Landau, and Russell A. Cline, Attorneys
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Jill M. Pohlman concurred.
Since 1965, David L. Peterson, individually and through his
trust, has owned a large tract of recreational mountain
property east of Mount Pleasant in Sanpete
County. Part of the property is known as Buckhorn
Flats. Between 2010 and 2013, Kyle R. Hall purchased four
lots near Buckhorn Flats. A dirt road (the Peterson Road)
crosses Buckhorn Flats and is the only access to another road
(the Spur Road) that leads to Hall's four lots. When
Peterson would not allow access across Buckhorn Flats using
the Peterson Road, Hall sued. At trial, the jury found that
the evidence established an easement by estoppel, allowing
Hall to use the Peterson Road. On appeal, Peterson argues
that the evidence at trial was insufficient to support an
easement by estoppel and that his motion for a directed
verdict should have been granted. Peterson also argues that
the trial court erred in not defining the scope of the
easement and in its determination of the prevailing party and
award of costs. We reverse the trial court's denial of
Peterson's motion for a directed verdict.
Peterson owned Buckhorn Flats beginning sometime prior to
1965. Peterson conveyed that property to the David L.
Peterson Trust in 2006. Adjacent to Buckhorn Flats is land
that has been variously owned by other entities. Hall now
owns four lots of that adjacent property. The Peterson Road,
going across Buckhorn Flats, is the only way to access those
lots by vehicle.
Sometime around 1996 Peterson built a gate that blocked
access to the Peterson Road. Hall's family obtained a key
to the gate,  but Peterson changed the locks around
2008. Hall first personally asked Peterson for a key to the
gate in 2010, after he purchased property beyond Buckhorn
Flats. Peterson refused, despite Hall showing Peterson proof
of ownership of property beyond the gate. Hall then purchased
other parcels even though Peterson had denied him a key. Hall
eventually brought this action seeking access along the
One theory Hall advanced at trial, and upon which he
ultimately prevailed, was that through the predecessors in
interest to his properties Hall could establish an easement
by estoppel across Buckhorn Flats to access those properties.
Therefore, the manner in which Hall's predecessors in
interest used the Peterson Road over the many years was at
issue during trial.
Predecessors in Interest
Hall purchased his four lots between 2010 and 2013-one from
Lula Jean Thomas in 2010, two from David Gobel in 2011, and
one from Alice Smith in 2013. Alice Smith had acquired her
property from her son, Ronald Smith (Smith). Both Thomas and
Smith acquired their properties from Diversified Marketing
(Diversified) in the 1970s. At trial, Gobel did not testify
and there was no evidence presented showing the historical
ownership of the Gobel lots.
Use of the Peterson Road
Although Thomas and Smith only visited their respective
properties a few times over a period of many years, on the
rare occasion that they would travel to their properties,
they drove to their lots by use of a dirt road. Smith drove with
an unidentified Diversified representative "to what they
said was [his] piece of property" shortly after Smith
agreed to buy the property. Smith subsequently drove to his
property two more times, but he had not been to the property
in roughly thirty years. Thomas visited her lots "three,
maybe four" times from the time she acquired them in the
"late '60s, early '70s" until she sold one
of her lots to Hall. Thomas never asked for or received
permission to use the Peterson Road.
Diversified, the previous owner of the Smith and Thomas lots,
purchased those lots sometime prior to 1974 as part of
roughly 1, 550 acres of property to the south of Buckhorn
Flats. Diversified began selling "little
parcels" of that property. A "spur road" was
built off of the Peterson Road and provided access to some of
the lots Diversified sold, including Hall's lots. Hall
provided the only testimony at trial about who built the Spur
Road, testifying that Diversified built it. Hall also
testified, however, that he neither saw Diversified build the
Spur Road nor had any supporting documentation as a basis for
Three witnesses testified about the possible use or presence
of construction machinery on Diversified's property,
which presumably could only have been brought there through
use of the Peterson Road. An excavating contractor,
testifying as an expert witness, opined that the Spur Road
"was maybe 15 feet across or so, and . . . [that it]
would take a machine to build the road that wide, that
significant." A second expert, a general contractor,
agreed. These witnesses did not testify about how many
machines would have been necessary or how long it would have
taken to grade the road. The third witness, Smith, testified
that after he purchased the property in the 1970s, but before
1980, on one occasion he "saw a bulldozer south of [his]
property" where Diversified "said there would be a
clubhouse" and that Diversified had "bulldozed a
short section of an area south of [his] property . . . in
an area which [Diversified] said was what they were
selling." When asked about the bulldozer's exact
location, Smith stated, "I can't tell you how far
south, but it was south of the property." Smith did not
testify that the bulldozer was on the Peterson Road or that
it was being used for making a road or any other improvement.
Use of the Peterson Road
The jury heard testimony from other witnesses- Johansen,
Vincent, Seely, Sorensen, R. Hall, C. Hall, and Matthews-that
the Peterson Road had been used on isolated instances over a
period of decades without obstruction or restriction.
Johansen, a person familiar with the area, gave deposition
testimony that he drove on the Peterson Road in the 1970s for
hunting but at trial testified that he did not ever remember
using a vehicle while on the Peterson Road. Johansen
acknowledged that when he was deposed he had stated that he
saw people from out of state use vehicles on the Peterson
Road, but at trial he testified he did not "know
of" any other vehicles using the road back in the 1970s.
An affidavit signed by Johansen was read at trial stating
that the "south roads have been used as [a] public
thoroughfare, " but Johansen did not remember asserting
that when questioned at trial. Johansen did not testify that
Peterson was present on any of these occasions.
Vincent, a property owner in the area, testified that she had
asked Peterson for permission to use the Peterson Road, and
that from 1991 to 1996 she had "free access" to her
property by use of the road. She also testified that she saw
people using ATVs on the road during this time. Vincent in no
way quantified whether this was a single occurrence or
whether she observed ATVs frequently. Vincent did not testify
that Peterson was present on any of these occasions. Vincent
did not testify one way or the other whether the ATV riders
had sought permission to ride on the road. Peterson
eventually limited her access to the Peterson Road and she
has not had access to her property since 2009.
Seely, an owner of nearby property and a person "[v]ery
familiar" with the area, testified that, in the 1950s
through 1962, "a lot of people" used vehicles on
the Peterson Road to "hunt deer up there on Buckhorn
Flat" and that "[t]he competition was pretty great
up there . . . [during] the deer hunt." While Seely
testified of many other times hunting "potguts" and
"plant[ing] potatoes for [Peterson]" on other
sections of Peterson's property, none of those other
instances included use of the Peterson Road on Buckhorn
Flats. Seely reiterated that he was not in the area in the
1970s and 1980s.
Sorensen, another property owner in the area, testified about
his use of the Peterson Road. The first time Sorensen visited
his property, he and a real estate agent "drove as far
as [they] could, and then [they] hiked in." After he
purchased his property in 1976, he "just drove right
to" the property on "the only [road] that [he was]
aware of" "at least once a summer" for
"[t]en, twelve years or so." Sorensen never asked
permission to use the Peterson Road and no one ever objected
to him using it. Sorensen did not testify that Peterson was
present on any of these occasions. Sorensen has been unable
to access his property since the "early to mid-
'90s" because of a "chain" or a
"gate" blocking the Peterson Road.
R. Hall, Hall's father and an owner of nearby property
accessible from an alternate road, testified that, from
around 1977 until around 2006, he would "go up there at
least once a year, sometimes more" and drive trucks and
ATVs on the Peterson Road for recreational purposes. R. Hall
testified that the Peterson Road was "just an open road.
People up there driving around, hunting, doing activities.
People from town coming up on four-wheelers. It was just . .
. open. There was no gate, no trespassing signs. It was
always open." C. Hall, Hall's mother and a person
familiar with nearby property, testified about her personal
use of the road and seeing others use the Peterson Road in a
similar manner described by R. Hall.
The deposition of Matthews, another property owner in the
area, was read into evidence during trial. Matthews had
driven to his property once "back in . . . 1974."
Matthews's deposition reads:
Q. Who did you go with? Who did you drive up there with?
A. As I remember there was a group of us that were owners . .
. . And I remember going with, you know, five or six other
owners, Sherm Clowder and Arden Kitchen for sure.
Q. Did a real estate-
A. And probably Paul Richards.
Q. I apologize.
A. Yeah, and probably Paul Richards too.
tried to go back to the property "a couple of times,
" but was unable to reach it because "[t]here
[were] fences there, and it was a little more snowy and
muddy, and [they] couldn't get up there because of those
for Directed Verdict
After Hall had presented his evidence, Peterson moved for a
directed verdict, arguing that there was insufficient
evidence to support Hall's claim for easement by
estoppel. The following argument about easement by estoppel
was made on the motion:
[Attorney for Hall]: Mr. Peterson permitted another to use
his land under the circumstances in which it was reasonable
to foresee that the user would substantially change position
believing that the permission would not be revoked.
[The Court]: So is it enough that [an owner] went there and
looked at it and then bought it? Is that enough?
[Attorney for Hall]: Yes. . . .
[The Court]: Just because he drove to it and looked at the
[Attorney for Hall]: Well, Diversified-the Petersons knew
that Diversified was crossing . . . .
The trial court denied Peterson's motion after reviewing
the evidence relevant to the elements of easement by
estoppel. Specifically, the court examined whether Peterson
gave permission to Hall or his predecessors in interest to
use the Peterson Road, whether it was foreseeable to Peterson
that others would rely on that permission, and whether Hall
or his predecessors in interest substantially changed
position based on a belief that permission would not be
revoked. The ...