Austin v. Bingham

2014 UT App 15, 319 P.3d 738, 752 Utah Adv. Rep. 16, 2014 WL 266209, 2014 Utah App. LEXIS 20
CourtCourt of Appeals of Utah
DecidedJanuary 24, 2014
DocketNo. 20120765-CA
StatusPublished
Cited by5 cases

This text of 2014 UT App 15 (Austin v. Bingham) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austin v. Bingham, 2014 UT App 15, 319 P.3d 738, 752 Utah Adv. Rep. 16, 2014 WL 266209, 2014 Utah App. LEXIS 20 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

ROTH, Judge:

1] 1 Michael and Wanda Austin appeal from certain portions of a damages award in favor of Jon and Adree Bingham. We affirm and remand to the trial court for calculation of the attorney fees that the Binghams incurred on appeal.

T2 The Austins and the Binghams are neighbors in rural Neola, Utah. The Bing-hams have a private right-of-way to access their residence over the Austins' property. That right-of-way has existed for over thirty years, and during much of that time, it was the only access to the Bingham parcel.2 The right-of-way runs from the county road past the Austins' home and then through the Austins' and another neighbor's pasture to the Bingham parcel. Previous owners built a rudimentary road over the right-of-way, using culverts and gravel to make it passable, but the road is by all other appearances pasture land. In the spring of 2007, Jon Bingham built a fence along the south side of the right-of-way to allow the Austins to graze cattle without "the need to open and close [740]*740gates as people accessed the Bingham property." The Binghams also plowed the right-of-way to keep it accessible during the winters of 2007 and 2008. Until late 2008, the Binghams' use of the right-of-way was uneventful, except for a few occasions when Mr. Austin stopped Mr. Bingham to complain that people were speeding on the right-of-way.

T8 In January 2009, things changed dramatically. The Austins started interfering with the Binghams' use of the right-of-way by closing the barbed wire gates. There were three gates along the right-of-way: one at the county road, one at the beginning of the pasture near the Austins' home, and one at the end of the Austins' pasture. To open these gates, a person using the right-of-way would have to exit his or her vehicle and unloop the barbed wire from a fence post. On the first day that the Austins closed the gates, Mrs. Austin called the Binghams, "quite upset" and "yelling" that the Austins had "warned [the Binghams] that [they] were going to close [the] gates" if the speeding on the right-of-way road continued. When Mr. Bingham explained to Mrs. Austin that closing the gates was unacceptable because Mrs. Bingham and many of the Binghams' guests would be unable to open the gates, Mrs. Austin said, "Well, that's not my problem" and hung up the phone. The Austins soon began routinely closing the gates after each person drove down the right-of-way and insisted that the Binghams and their guests do the same. The Austins' demands were often accompanied by shouted profanities The Binghams declined to close the gates, however, and the dispute soon escalated.

{4 Whenever the Binghams traveled the right-of-way, the Austins would follow "right on [their] bumper ... shutting the gates." If Mrs. Bingham arrived at the gate while the Austins were in the process of closing it, she would have to wait until they closed the gate and then exit her vehicle to reopen it. The Austins also began tightening the barbed wire strands, making the gates increasingly more difficult to open because opening each gate required pulling the gate post against the tension of the barbed-wire gate strands in order to disengage the top of the gate post from the wire loop that secured it to the adjacent fence post. The difficulty was further complicated by the gates' placement over metal cattle guards, which required "stand[ing]l on slippery bars" while unlooping the wire gate from the fence post. Mrs. Bingham and female guests often seraped their hands and tore their clothing while struggling with the fence. Once, when Mrs, Bingham was unable to open the middle gate, Mr. Austin locked the first gate behind her and left, stranding her in the pasture. On another occasion, the Austins used baling twine to knot a gate shut, and Mr. Bingham had to cut the twine in order to get the gate open. Later, the Austins installed panels that latched to the wire gates and used biey-cle combination locks to secure them. Those locks were difficult to open in the dark and often froze in the winter.

T5 In March 2009, a visiting friend and her children were trying to get to the Bing-ham property when Mr. Austin came out of the house and physically blocked the friend from opening the gate. Mrs. Bingham, accompanied by her two young children, went down to intervene. By the time she arrived, Mrs. Bingham's friend and her children were crying. Mr. Austin "started yelling" at Mrs. Bingham and said "he was not going to let [the friend] through" because she was not "using] this right-of-way correctly." Mr. Austin continued yelling and was "obviously very, very angry," so Mrs. Bingham called the police.

I 6 Angry confrontations became more and more frequent. A neighbor testified that he and his wife were traveling the right-of-way after picking up their children from the Bing-ham house when Mrs. Austin "came to the window yelling profanity." The neighbor later returned to the Austing' house to talk with them about their behavior, and Mr. Austin chased him off the porch, threatening to beat him. At that point, the neighbor testified, Mr. Austin told him that the Austins' actions were intended to "get under [the Binghams'] skin" and that Mr. Austin "would get Johnny [Bingham]" by "hid[ing] behind the tree ... and ... knock[ing] him." Another neighbor reported that on a cold, wet spring day, he struggled with the combina[741]*741tion lock for four or five minutes before simply removing a gate post to open one of the gates. The neighbor testified that Mr. Austin approached him "irate, ... yelling at me, cursing, asking me what I was doing to his gate." When the neighbor retreated to his vehicle Mr. Austin pressed "his face right [into the] passenger truck window," yelling profanities at him until the neighbor drove away. Mrs. Bingham testified that the Austins would often confront the Binghams as well while they opened the gates. On at least one occasion, Mrs. Austin informed Mrs. Bingham that the Binghams could only blame themselves for the behavior because "you kids are the one[s] that started it."

T7 During this same time period, the Austins also prohibited the Binghams from maintaining the right-of-way. On one occasion, Mrs. Austin stood in the middle of the road and refused to move until the plowing ceased. She ordered the Binghams to "not plow this road again." On another occasion, Mr. Bing-ham was filling in some of the deeper ruts in the road when Mr. Austin came out yelling that Mr. Bingham had "no right" to repair the road and demanding that Mr. Bingham leave before "I tear this whole thing up."

18 Mrs. Bingham testified that she thought that Mrs. Austin "hasn't liked us there" because "the road [has been] used on a regular basis" since the Binghams moved onto the parcel. Mrs. Bingham further testified that she felt threatened by the Austins conduct and that on at least one occasion, she had called a sheriff to escort her and her children back to her house after a confrontation with Mr. Austin at one of the gates on the right-of-way. Eventually, Mrs. Bingham sought medical treatment for the stress and anxiety produced by the dispute.

1 9 As the dispute escalated, the Binghams proposed several alternatives to closing the gates, including improving the cattle guards to make them effective at keeping the cattle in pasture, installing an automatic gate, and building a privacy fence between the right-of-way and the Austins' home. Although the Binghams offered to undertake these improvements at their own expense, the Austins rejected all of the proposals.

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Cite This Page — Counsel Stack

Bluebook (online)
2014 UT App 15, 319 P.3d 738, 752 Utah Adv. Rep. 16, 2014 WL 266209, 2014 Utah App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-bingham-utahctapp-2014.