Robert L. Judd III, and Charles L. Allen, Petitioners and Cross Respondents,
David Bowen, Respondent and Cross Petitioner.
Certiorari to the Court of Appeals Third District, Salt Lake
The Honorable Su Chon No. 110917049
J. Nelson, Joseph C. Rust, Jeffery S. Williams, Salt Lake
City, for petitioners.
Michael D. Zimmerman, Clemens A. Landau, Salt Lake City, for
Justice Durrant authored the opinion of the Court, in which
Associate Chief Justice Lee, Justice Himonas, Justice
Petersen and Judge Davis joined.
recused himself, Justice Pearce did not participate herein.
District Court Judge Lynn W. Davis sat.
Durrant, Chief Justice.
After decades of amicable use of a circular driveway touching
adjacent cabins, two families now dispute whether an easement
by prescription exists. The Judd family maintains that it has
a prescriptive easement to the entire driveway for access and
parking purposes. The Bowen family argues that any use of the
driveway by the Judds came through the Bowens' permission
and so no prescriptive right exists. After a four-day bench
trial, the trial court granted the Judds a prescriptive
easement for both access and parking purposes. On appeal, the
court of appeals affirmed the easement for access, but
limited its scope. It also reversed the easement for parking.
We exercised our certiorari authority to determine what
appeared to be important questions over the correct standards
for establishing prescriptive rights. But after briefing and
oral argument, it is clear this is not a case suitable for
Under rule 46 of the Utah Rules of Appellate Procedure,
certiorari is generally proper when the court of appeals has
rendered a decision that (1) is in conflict with a prior
court of appeals decision or a decision of this court, (2)
has "so far departed from the accepted and usual course
of judicial proceedings" so as to require our
supervision, or (3) has "decided an important question
of . . . law" which should be settled by this court.
Because these considerations are not present in this case, we
hold that we improvidently granted certiorari.
This case involves a dispute over the use of a century-old
circular driveway (Driveway) that sits between two adjacent
cabins in Big Cottonwood Canyon. One cabin is owned by the
Bowens, and the Driveway is located almost entirely on their
property. The other cabin belongs to the Judds. For almost a
century, both families used the Driveway in an amicable
manner. But in 2008, a Judd user, for the first time, refused
to move a vehicle off the Driveway at the Bowens'
request. The Judds claimed they had a prescriptive right to
access and park on the Driveway arising from their historical
use of the Driveway. Shortly thereafter, the Bowens erected
gates and other barricades to limit the Judds' access to
the Driveway and informed the Judds that they could no longer
use the Driveway "absent a court order."
Robert Judd III and Charles Allen (collectively, the Judds)
filed a suit against David Bowen in 2011 to establish a
prescriptive right to use the Driveway for ingress, egress,
and parking purposes. A four-day bench trial was held where
the trial court heard testimony from over twenty witnesses
about the historic use of the Driveway.
The trial court ultimately concluded that the Judds had a
right to a prescriptive easement for "reasonable access
and parking purposes" because the Judds' use had
been "open and notorious," "under a claim of
right," "adverse," and continuous for a
twenty-year prescriptive period. But the trial court did not
make findings regarding, among other things, the exact date
the prescriptive easement was established or to provide the
exact parameters of that easement. The Bowens timely
appealed. Neither party challenged the sufficiency of the
trial court's factual findings on appeal.
On appeal, a majority panel of the court of appeals held that
the trial court correctly granted the Judds a prescriptive
easement on the Driveway for access, but not for
parking. Specifically, the court concluded that the
trial court's findings of fact reasonably supported its
conclusion that the Judds' use had been continuous, open,
and adverse for twenty years. Additionally, it held that the
historic parking use the Judds sought could not be
established through prescriptive easement, because the
parking right closely resembles a possessory right that must
be established through an adverse possession
analysis. In deciding this issue, the court of
appeals relied upon this court's precedent in which we
distinguished between rights established through prescription
and adverse possession.
Both parties submitted a petition for certiorari to this
court, which we granted. In their petition, the Bowens
claimed the court of appeals endorsed an incorrect legal
standard for finding prescriptive easements. The Judds argued
that the court of appeals had ventured into uncharted
territory in determining that the parking easement must be
established through adverse possession rather than
prescription. We ultimately granted certiorari to answer what
appeared to be important and unsettled legal questions in the
prescriptive easement arena. We have jurisdiction to hear
this case pursuant to section 78A-3-102(3)(a) of the Utah
We granted certiorari on three issues: (1) whether the court
of appeals erred in its construction and application of the
elements of the legal standard for establishing a
prescriptive easement for access; (2) whether the court of
appeals erred in reversing the trial court's grant of a
prescriptive easement for parking to the Judds; and (3)
whether the court of appeals erred in its ruling concerning
the scope of the easement. "The ultimate determination
of whether an easement exists is a conclusion of law, which
we review for correctness." But such a determination is
"the type of highly fact-dependent question, with
numerous potential fact patterns, which accords the trial
judge a broad measure of discretion when applying the correct
legal standard to the given set of facts." This means an
appellate court should "overturn the finding of an
easement only if [it] find[s] that the trial judge's
decision exceeded the broad discretion
In their petition for certiorari, the Bowens argued that the
court of appeals erred in "affirm[ing] the district
court's use of incorrect legal definitions for the
various elements [of a prescriptive easement] and erroneously
concluded Judd was entitled to a prescriptive easement."
Conversely, the Judds argued that the court of appeals'
pronouncement that "a prescriptive parking easement is
more akin to adverse possession than it is to a prescriptive
access easement" is "the first ruling of [its] kind
in the State of Utah" and requires "better
definition and guidance." They also argued that the
court of appeals erred in curtailing the scope of the access
easement. We granted certiorari to answer what appeared to be
important and unsettled legal questions. Upon further review,
we are unable to answer these questions because the trial
court did not make explicit findings as to the date the
easement was established and its parameters, and the parties
failed to challenge the sufficiency of the trial court's
findings. We ...