Pace v. Jerman

Utah Supreme Court

Pace v. Jerman

684 P.2d 56, 1984 Utah LEXIS 880

CourtUtah Supreme Court

DecidedJune 22, 1984

DocketNo. 19519

StatusPublished

This text of 684 P.2d 56 (Pace v. Jerman) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pace v. Jerman, 684 P.2d 56, 1984 Utah LEXIS 880 (Utah 1984).

Pincite

Opinion

PER CURIAM.

This is an appeal from a judgment establishing a prescriptive easement in favor of [57]*57the plaintiffs on the north, over land claimed and recorded in the names of the defendants to the south, for ingress and egress to plaintiffs’ trailer park. The easement decreed was for 30 feet running west-east from a state highway, 14 feet of which had been conceded by stipulation.

The main difference in contention was a “jog” area within the disputed 16 feet to the extreme south. That was an area which the defendants insisted could not have been acquired by prescription because it was so deeply depressed that it was not fit for vehicular travel and the plaintiffs had not used it for such purpose or any other purpose continuously for the prescriptive period. The plaintiffs urged otherwise and presented admissible evidence that they personally, and with the aid of a contractor, had used dirt from the north to fill the “jog” area in order to establish a usable driveway, even before the prescriptive period had begun to run. The defendants countered with aerial photos, which they said were taken before and after the alleged fill and at different times, to show non-use or inability to use the strip continuously for the required time.

There is no question as to adverse use in this case, since the plaintiffs acquired their property with the advice of the seller that the strip had been used for some time before in connection with the trailer park. It is undisputed that the defendants granted no permissive use until after the prescriptive period had run and after suit was filed.

The trial court was confronted with conflicting testimony and accepted that offered by plaintiffs. Although the plaintiffs had sought more, the evidence supports the easement for 30 feet.

Defendants contend that plaintiffs have not complied with the “adverse possession” statute¹ because they had not paid taxes. This Court has pointed out that such statute does not apply to prescriptive easements created by continuous possession for 20 years.²

The judgment is affirmed. Costs to plaintiffs.

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PER CURIAM.

This is an appeal from a judgment establishing a prescriptive easement in favor of [57]*57the plaintiffs on the north, over land claimed and recorded in the names of the defendants to the south, for ingress and egress to plaintiffs’ trailer park. The easement decreed was for 30 feet running west-east from a state highway, 14 feet of which had been conceded by stipulation.

The main difference in contention was a “jog” area within the disputed 16 feet to the extreme south. That was an area which the defendants insisted could not have been acquired by prescription because it was so deeply depressed that it was not fit for vehicular travel and the plaintiffs had not used it for such purpose or any other purpose continuously for the prescriptive period. The plaintiffs urged otherwise and presented admissible evidence that they personally, and with the aid of a contractor, had used dirt from the north to fill the “jog” area in order to establish a usable driveway, even before the prescriptive period had begun to run. The defendants countered with aerial photos, which they said were taken before and after the alleged fill and at different times, to show non-use or inability to use the strip continuously for the required time.

There is no question as to adverse use in this case, since the plaintiffs acquired their property with the advice of the seller that the strip had been used for some time before in connection with the trailer park. It is undisputed that the defendants granted no permissive use until after the prescriptive period had run and after suit was filed.

The trial court was confronted with conflicting testimony and accepted that offered by plaintiffs. Although the plaintiffs had sought more, the evidence supports the easement for 30 feet.

Defendants contend that plaintiffs have not complied with the “adverse possession” statute¹ because they had not paid taxes. This Court has pointed out that such statute does not apply to prescriptive easements created by continuous possession for 20 years.²

The judgment is affirmed. Costs to plaintiffs.

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Bluebook (online)

684 P.2d 56, 1984 Utah LEXIS 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pace-v-jerman-utah-1984.

Opinion

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