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Hall v. Peterson

Court of Appeals of Utah

December 7, 2017

Kyle R. Hall, Appellee,
v.
David L. Peterson, Appellant.

         Sixth District Court, Manti Department The Honorable Marvin D. Bagley No. 120600065.

          Kasey L. Wright and Cherylyn Egner, Attorneys for Appellant

          Troy L. Booher, Clemens A. Landau, and Russell A. Cline, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          OPINION

          MORTENSEN, Judge.

         ¶1 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.[1] 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.[2] 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.

         BACKGROUND[3]

         ¶2 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.

         ¶3 Sometime around 1996 Peterson built a gate that blocked access to the Peterson Road. Hall's family obtained a key to the gate, [4] 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 Peterson Road.

         ¶4 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.

         Hall's Predecessors in Interest

         ¶5 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).[5] 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.

         Predecessors' Use of the Peterson Road

         ¶6 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.[6] 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.

         ¶7 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.[7] 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 his testimony.

         ¶8 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.

         Other Use of the Peterson Road

         ¶9 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.

         ¶10 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.

         ¶11 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.

         ¶12 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.

         ¶13 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.

         ¶14 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.

         ¶15 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.[8]

         Matthews 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 two problems."

         Motion for Directed Verdict

         ¶16 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 property.
[Attorney for Hall]: Well, Diversified-the Petersons knew that Diversified was crossing . . . .

         ¶17 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 ...


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