Richards v. Pines Ranch, Inc.

559 P.2d 948, 1977 Utah LEXIS 1019

• Court: Utah Supreme Court
• Decided: January 6, 1977
• Docket: 14460
• Status: Published

Opinions

ELLETT, Justice:

The plaintiffs herein appeal from an Order dismissing their complaint, whereby they sought to establish a right-of-way by prescription over defendant’s land.

The evidence established that the plaintiffs and their predecessors in interest had crossed the land now owned by the defendant for approximately forty years. The land lies in a canyon and until recently was in a rather wild state. The use made by the plaintiffs and their predecessors was for the grazing of sheep, cutting timber, taking Christmas trees, camping, holding picnics, horseback riding, etc. Access to their land was had over a rough road across defendant’s land.

A right-of-way by prescription is established by open, notorious, adverse use thereof for a period of twenty years.¹ Once the adverse use is established for the twenty-year period, the burden of showing that it was not adverse is upon the owner of the servient estate.²

In the instant matter, the defendants were unable to show that the use over the years prior to recent times was by permission of the then owners. However, the trial court made the following findings of fact:

1. That the purported right-of-way claimed by the plaintiffs herein, while not described by formal metes and bounds in the pleadings, was demonstrated to the Court’s satisfaction in terms of location.

2. That this is an action to establish an easement by prescriptive use on the issue of open, notorious, continuous and adverse use therefor for a period of more than twenty years. The Court finds that undisputed testimony demonstrated certain persons, including the plaintiffs’ predecessors, had sporadically used a strip of land across the defendant’s property for the purpose of logging, removing trees for Christmas trees, and perhaps for recreational purposes, but the evidence was insufficient to show that that use was so regular, open, notorious and continuous and adverse as to constitute the creation of an easement by prescription.

3. The Court further finds from the evidence that in recent years the use made of the alleged right-of-way has been more or less permissive, and the defendant has made every attempt it could to keep people from trespassing across its land, and more particularly across the purported way in question.

We think His Honor erred in thinking that permissive use or efforts to prevent trespassing in recent years would have any bearing on this case. If a twenty-year adverse use was established, then that could only be defeated by a prohibition of use for a like period.

It would seem that His Honor also erred in thinking that the adverse use had to be regular. All that is required is that the use be as often as is required by the owner of the dominant estate. While the use made could limit the future use, it does not entirely prevent a prescriptive use to cross the defendant’s land.

The law is set out correctly in 1 Thompson on Real Property, Specific Easement, Section 464, p. 575 (1924) as follows:

A way may be established by prescription without direct evidence of its actual use during each year. A use may be continuous though not constant. A right of way means a right to pass over another’s land, more or less frequently, according to the nature of the use to be made by the easement; and how frequently is immaterial, provided it occurred as often as the claimant had occasion or chose to pass. It must appear not to have been interrupted by the owner of the land across which the right is exercised, nor voluntarily abandoned by the claimant. Mere intermission is not interruption.

Owners use canyon land for a variety of purposes and particularly for the uses found by the court to have been made by the plaintiffs and their predecessors. If the plaintiffs crossed the land now owned by the defendant by a way which can be located on the ground, and they did so whenever they desired and as a right, it would seem that their right to continue to use the road should be recognized.

This is á case in equity and we are not bound to recognize the findings of the trial court where they appear to be contrary to the evidence.³ Even the findings made by the trial court would require a conclusion of law that plaintiffs in this matter should prevail.

The judgment rendered should be and is hereby reversed. Costs are awarded to the appellants.

HENRIOD, C. J., and CROCKETT and WILKINS, JJ., concur.

1 . Zollinger v. Frank, 110 Utah 514, 175 P.2d 714 (1947).

2 . Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314 (1966).

3 .North Point Consolidated Irrigation Company v. Utah & Salt Lake Canal Company, 16 Utah 246, 52 P. 168 (1898).