Harrison v. Spah Family LTD , 2020 UT 22 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 22
IN THE
SUPREME COURT OF THE STATE OF UTAH
CHARLIE W. HARRISON and TRENA HARRISON,
Appellants,
v.
SPAH FAMILY LTD., STAN E. HOLLAND, and PAGE HOLLAND,
Appellees.
No. 20180537
Heard October 4, 2019
Filed May 8, 2020
On Direct Appeal
Seventh District, Moab
The Honorable Lyle R. Anderson
No. 160700035
Attorneys:
Vincent C. Rampton, Jessica P. Wilde, Salt Lake City,
for appellants
Troy L. Booher, Freyja R. Johnson, Kristine M. Rogers, Salt Lake
City, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 This is a prescriptive easement case. The district court
determined, on summary judgment, that Stan and Page Holland
had established a prescriptive easement across the property of
their neighbors, Charlie and Trena Harrison. The case then went
to trial for a determination of the scope of that easement. The jury
returned a verdict, and the court entered final judgment. The
Harrisons now appeal, raising five issues regarding either the
HARRISON v. SPAH FAMILY LTD.
Opinion of the Court
district court’s summary judgment decision or decisions the court
made related to the trial.
¶2 First, they argue the district court erred in determining,
on summary judgment, that the “continuous” element had been
indisputably established for the prescriptive period. In their view,
evidence that they revoked their “acquiescence” of the use
interrupted the Hollands’ continuous use of the easement. We
reject this argument because “acquiescence” is not required to
establish a prescriptive use.
¶3 Second, the Harrisons argue the district court erred on
summary judgment because any use of the road by the Hollands
was done with the permission of the original owner of the
Harrisons’ lot. We reject this argument because the record
evidence does not support it.
¶4 Third, the Harrisons argue that one of the jury
instructions was erroneous because it failed to instruct the jury
that the scope of the easement was limited to its historical use. We
agree and remand for a new trial with a correct jury instruction.
¶5 Fourth and fifth, the Harrisons argue the district court
erred in allowing the Hollands’ expert to testify and in excluding
their rebuttal expert from testifying. Because the district court did
not abuse its discretion in regard to either expert witness
determination, we affirm.
Background
¶6 To access their cabin property located in the Willow Basin
subdivision, Stan and Page Holland claim a prescriptive easement
across land owned by Charlie and Trena Harrison. The relevant
ownership history of the Holland and Harrison properties begins
in 1994. In that year, Janice Hawley (now Janice Gustafson)
divided nearly one hundred acres of her land into the eight lots
constituting what is now referred to as the Willow Basin
subdivision.
¶7 Following the creation of the Willow Basin subdivision,
Ms. Hawley transferred title to what would later become the
Holland lot to Manuel Torres. Without Ms. Hawley’s knowledge
or authorization, Mr. Torres cut a road across what would later
become the Harrison property. Ms. Hawley believed the road was
created “as a means of permitting [Mr. Torres] to take prospective
purchasers to the property for marketing purposes.” In her
declaration prepared for litigation in this case, Ms. Hawley stated
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that the road was used “thereafter for [marketing purposes]
pursuant to permission from [her].”
¶8 On August 9, 1996, Mr. Torres sold the Holland property
to the Hollands.1 That same day, the Hollands used the road
across what is now the Harrison property to access their new lot.
The Hollands did not receive permission from Ms. Hawley to use
the road. The Hollands have regularly used the road to access
their property ever since.
¶9 In 2008, Ms. Hawley sold the Harrison property to the
Harrisons. Thereafter, Mr. Harrison altered the road. The
Hollands testified that Mr. Harrison widened the turning point
going toward his cabin, but that he had done little to the rest of
the road. In contrast, Mr. Harrison estimated that the road was
nine to twelve feet wide when he purchased the parcel, and he
testified that the width of the road is now “upwards of 30 feet
wide.” The Hollands continued using the road across the
Harrison property after the Harrisons acquired title.
¶10 In June 2016, Mr. Holland and Mr. Harrison had a verbal
disagreement concerning the road. At that time, or some time
before, Mr. Harrison attempted to forbid the Hollands from using
the road.
¶11 On September 13, 2016, Mr. Harrison parked a bulldozer
on the road, blocking the Hollands’ access. In response, the
Hollands called the police. Ms. Holland filed a statement with the
police, explaining that Mr. Harrison had blocked the road with a
bulldozer. She also referenced the June 2016 verbal dispute
between Mr. Holland and Mr. Harrison, explaining that the police
had also been called on that occasion and that Mr. Harrison had
told Mr. Holland that Mr. Holland could not use the road.
¶12 Shortly after the bulldozer incident, the Harrisons filed
this lawsuit, suing the Hollands for trespass based on the
Hollands’ use of the road crossing the Harrisons’ property. The
Hollands counterclaimed, seeking to quiet title to a prescriptive
easement for access to their property over the Harrisons’
property. In April 2017, the Hollands filed for partial summary
judgment, arguing that all the elements for a prescriptive
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1The Hollands subsequently transferred title to the Holland
property to SPAH Family Ltd., their limited partnership.
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Opinion of the Court
easement had been satisfied. In opposition, the Harrisons argued
that a prescriptive easement did not form because they had not
acquiesced to the Hollands’ use during the entire twenty-year
prescriptive period. They also argued that the use was permissive.
After a hearing, the district court found, as a matter of law, that
the Hollands had established a prescriptive easement.
¶13 In October 2017, the Harrisons filed a motion to
reconsider, raising arguments based on statements Ms. Holland
made in her September 2016 police report. This was the first time
the police report had been presented to the district court. The
Harrisons argued that the district court should consider the police
report because it constituted newly discovered evidence. They
argued that this evidence showed that, in June 2016,
(1) Mr. Harrison had informed Mr. Holland that he did not
acquiesce in the Hollands’ use of the easement and (2) the police
had been called and litigation had been threatened regarding the
Hollands’ use of the easement.
¶14 The Harrisons relied on this evidence to argue that the
prescriptive period had been interrupted in June 2016, roughly
two months before the completion of the twenty-year prescriptive
period. The Hollands objected to the motion to reconsider,
arguing that the police report did not constitute new evidence
because it had existed for nearly one year before the parties filed
their memoranda related to summary judgment. The district court
denied the motion to reconsider without stating its reasoning.
¶15 The case proceeded to trial to determine the scope of the
Hollands’ prescriptive easement. Before trial, the Harrisons
sought to exclude testimony from Lucas Blake, the Hollands’
retained expert witness. Mr. Blake intended to testify about a
survey of the road he performed in 2016. The Harrisons argued
that Mr. Blake’s testimony should be excluded because the scope
of the road in 2016 was irrelevant to determining the scope of the
easement. The court denied the motion because it found that
evidence of the then physical dimensions of the road would prove
helpful in determining the scope of the prescriptive easement.
¶16 The Harrisons also objected to the wording of the jury
instruction regarding the prescriptive easement. As presented, the
jury instruction stated that the jury needed to decide the “width of
the easement . . . necessary for [the Hollands] to access their
property.” Although the instruction also asked the jury to take
into account “the historic[al] use and shape of the roadway during
its 20 years of use,” the Harrisons asked the court to include a line
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instructing the jury that the “extent of a prescriptive easement is
measured and limited by its historic[al] use during the
prescriptive period.” But the court declined, stating that it
believed the instruction sufficient as written.
¶17 At trial, Mr. Blake testified, and the Harrisons sought to
introduce rebuttal testimony from Brad Bunker, their own expert
witness. Mr. Bunker intended to testify that “Mr. Blake’s survey
was not based on historic[al] use of the easement claimed by [the
Hollands], but was formulated by (1) measuring the edges of the
road across the [Harrisons’] property as it existed in October 2016,
and (2) establishing a center line of that road by ‘eyeballing a
midpoint line.’” The court ruled that Mr. Bunker would not be
allowed to testify, because the testimony usurped the court’s
responsibility in instructing the jury.
¶18 The jury returned a finding regarding the scope of the
prescriptive easement that was based on Mr. Blake’s 2016 survey.
In the special verdict form, the jury stated that it returned this
finding because it was “consistent with other easements in [the]
subdivision.” The court entered final judgment on June 5, 2018.
The Harrisons timely appealed.
¶19 In their opening brief on appeal, the Harrisons challenge
the district court’s decision on summary judgment based on
evidence contained in the September 2016 police report. But they
do not challenge the district court’s decision on their motion to
reconsider, the motion in which they first introduced the police
report as evidence. The Harrisons also challenge the district
court’s summary judgment decision regarding permissive use, the
court’s decision regarding the expert testimony of Mr. Blake and
Mr. Bunker, and the jury instruction regarding prescriptive
easements. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j).
Standards of Review
¶20 The Harrisons ask us to resolve five issues. First, we must
determine whether the district court erred on summary judgment
in ruling that the Hollands had established twenty years of
uninterrupted prescriptive use. Second, we must determine
whether the court erred on summary judgment in ruling that the
Hollands had established that their use had been adverse, rather
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than permissive. We review summary judgment rulings for
correctness, viewing the facts and inferences in the light most
favorable to the nonmoving party.2
¶21 Third, we must determine whether the court erred in
instructing the jury regarding the scope of the Hollands’
prescriptive easement. We review challenges to jury instructions
for correctness.3
¶22 Fourth, we must determine whether the court erred in
admitting evidence from the Hollands’ retained expert. And fifth,
we must determine whether the court erred in excluding evidence
from the Harrisons’ rebuttal expert. We review a court’s decision
regarding the admissibility of expert testimony for an abuse of
discretion.4 A court does not abuse its discretion in admitting or
excluding expert testimony “unless the decision exceeds the limits
of reasonability.”5
Analysis
¶23 The Harrisons raise five issues on appeal. First, they
argue the trial court erred in determining, as part of its decision
on summary judgment, that the “continuous” element had
indisputably been established for the prescriptive period. We
reject this argument because it is based on a misunderstanding of
the legal requirements for establishing a prescriptive use.
¶24 Second, the Harrisons argue the district court erred in
determining, on summary judgment, that the prescriptive use had
been adverse because the original owner of the Harrisons’ lot had
given the Hollands’ predecessor permission to use the road. We
reject this argument because it is not supported by the record.
¶25 Third, the Harrisons argue that one of the jury
instructions was erroneous because it failed to instruct the jury
that the scope of the easement was limited to its historical use. We
agree. Accordingly we remand for a new trial with a correct jury
instruction.
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2 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.
3 Green v. Louder, 2001 UT 62, ¶ 14, 29 P.3d 638.
4 State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726.
5 State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993).
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¶26 Fourth and fifth, the Harrisons argue the district court
erred in allowing the Hollands’ expert to testify and in excluding
their rebuttal expert from testifying. Because the district court did
not abuse its discretion in regard to either expert witness, we
affirm.
I. We Affirm the District Court’s Determination That the Hollands
Used the Road Continuously for Twenty Years
¶27 The district court correctly determined that the Hollands’
prescriptive use was continuous for twenty years. The Harrisons
argue that to be “continuous” a prescriptive use “must continue
uninterrupted, with the acquiescence of the [landowner], for the
entire prescriptive period.” Because there is clear evidence that
the Harrisons did not “acquiesce” in the Hollands’ use of the
easement for the full twenty-year period, they argue that the
district court erred in determining that the “continuous” element
had indisputably been established for the prescriptive period. But
the Harrisons’ argument on this point fails because an owner’s
“acquiescence” is not needed to establish a prescriptive use.6
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6 On appeal, the Harrisons point to two pieces of evidence that,
in their view, demonstrate that they did not acquiesce in the
prescriptive use for the full twenty-year period. First, they point
to Charlie Harrison’s sworn declaration, in which he testified that
he had revoked his acquiescence. Second, they point to a
September 2016 police report, which contains evidence regarding
multiple disputes between the families. Although “acquiescence”
is not needed to establish a prescriptive easement, we note that it
would be improper to consider this evidence on appeal. This is
because the Harrisons did not present the police report evidence
to the district court as part of their opposition to summary
judgment. Instead, they presented it for the first time
approximately one year later as part of their motion to have the
court reconsider its summary judgment decision—a motion the
district court denied. Because the Harrisons have not challenged
the district court’s denial of their motion to reconsider in their
principal brief, we cannot consider the police report evidence on
appeal. This is because, by considering that evidence, we would
implicitly overrule the district court’s unchallenged denial of the
motion to reconsider.
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¶28 In Utah, a prescriptive easement is established where the
“use of another’s land was open, continuous, and adverse under a
claim of right for a period of twenty years.”7 The Harrisons argue
that the “continuous” element was not satisfied for the full
twenty-year period because, a few months before the twenty-year
period was complete, Mr. Harrison informed the Hollands that he
did not acquiesce in the Hollands’ continued use. But a
landowner’s lack of acquiescence in a prescriptive use does not
interrupt the running of a prescriptive period.
¶29 To satisfy the “continuous” element, prescriptive users
must show only that they used the easement “as often as required
by the nature of the use and the needs of the [user]” without
interruption during the twenty-year period.8 According to the
Restatement (Third) of Property, there “are two aspects to the
requirement that a prescriptive use be continued for the
prescriptive period: one mental, the other physical.”9 The mental
aspect “requires that the prescriptive user remain in an adverse
posture to the holder of the servient estate throughout the
prescriptive period.”10 So where “the user submits to the title of
the possessor, or abandons the adverse claim under which the use
is made, there is a break in the continuity of adverse use.”11 The
physical aspect of continuous use, on the other hand, requires that
the prescriptive user actually and continually use the easement
throughout the prescriptive period.12
¶30 Under this formulation of the “continuous” element of
prescriptive easements, a prescriptive period is interrupted where
the prescriptive user halts his or her actual use of the easement or
where the prescriptive user alters his or her mental state (so that
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7 Judd v. Bowen, 2018 UT 47, ¶ 12, 428 P.3d 1032 (internal
quotation marks omitted) (citation omitted).
8 Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984) (internal
quotation marks omitted).
9RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. i (AM.
LAW INST. 2000).
10 Id.
11 Id.
12 Id.
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the prescriptive user begins using the easement under the owner
rather than against the owner). An alteration in a prescriptive
user’s mental state most often occurs where the prescriptive user
accepts a landowner’s permission to continue using the
easement.13
¶31 To be clear, because it is the mental state of the prescriptive
user that is the focus of this analysis, a landowner’s “grant of
permission to the prescriptive user” will not “work an
interruption unless the user submits to the title of the landowner
by accepting the license offered.”14 So it is the prescriptive user’s
submission to the landowner that interrupts the prescriptive
period—not the owner’s grant of permission.15
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13 Id.
14 Id. cmt. j.
15 See also id. § 2.16 cmt. f (“A use that begins as adverse can be
converted to a permissive or subordinate use if the user agrees to
accept a license from the landowner, or if the user acts in such a
way that the ordinary landowner would believe that the user has
accepted the grant of a license to use the land.”). In property law,
the term “license” typically refers to the revocable permission,
given by a landowner to a user (or licensee), for a specific use of
the landowner's land. See License, BLACK’S LAW DICTIONARY (11th
ed. 2019) (“A permission, usu. revocable, to commit some act that
would otherwise be unlawful; esp., an agreement (not amounting
to a lease or profit à prendre) that it is lawful for the licensee to
enter the licensor’s land to do some act that would otherwise be
illegal, such as hunting game.”). A license can be created orally or
in writing. See King Bros., Inc. v. Utah Dry Kiln Co., 440 P.2d 17, 21
(Utah 1968) (“A licensee differs from a lessee in that the latter has
a possessory interest. There is no right of possession in the
licensee. There is a plain difference between a license and a lease.
A lease differs from a license in that a lease of land passes an
interest in the land, requires a writing to comply with the Statute
of Frauds, although not always a seal, and transfers possession,
while a license merely excuses acts done by one on land in
possession of another that without the license would be a trespass,
conveys[] no interest in the land, and may be contracted for or
given orally. A tenancy implies some interest in the land leased,
(Continued)
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Opinion of the Court
¶32 We note that whether a prescriptive user has submitted to
the landowner’s ownership is a factual determination made by the
fact finder after weighing all relevant evidence. So, for example,
where there is contradictory testimony regarding whether a
prescriptive user accepted a landowner’s permission, the fact
finder should weigh the credibility of the witnesses in
determining whether an interruption in the prescriptive user’s
adverse mental state occurred. And, as another example, where it
is unclear whether a prescriptive user accepted the landowner’s
permission, but the user acted in a way that would lead a
reasonable person to believe that the user had so accepted, this
fact should lead the fact finder to conclude that a mental
interruption of the prescriptive period occurred.16
¶33 In contrast to a mental interruption of a prescriptive
period, a prescriptive period may be physically interrupted only
“if it brings about a cessation of use” that is “long enough to
indicate” that the prescriptive user has abandoned the use.17 In
while a license gives only a temporary privilege in the use of the
property, usually revocable at the pleasure of the licensor.”).
16 Additionally, we note that where the facts regarding a
prescriptive user’s mental state are truly ambiguous, the question
will likely be resolved based on the presumption that arises from
the nature of the initial use. Under our case law, where a use of an
easement is initially permissive, there is a presumption that it
remains permissive—a presumption the user must rebut. Richins
v. Struhs, 412 P.2d 314, 316 (Utah 1966) (explaining that where
“the use was initially permissive, then the burden of going
forward with evidence and of ultimate persuasion shifts back to
the claimant to show that the use became adverse and continued
for the prescriptive period”). But where the use is not initially
permissive, the presumption goes the other way. Valcarce v.
Fitzgerald, 961 P.2d 305, 311–12 (Utah 1998) (“[O]nce a claimant
has shown an open and continuous use of the land under claim of
right for the twenty-year prescriptive period, the use will be
presumed to have been adverse. To prevent the prescriptive
easement from arising, the owner of the servient estate then has
the burden of establishing that the use was initially permissive.”
(citation omitted)).
17RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.
LAW INST. 2000).
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other words, to be successful, the owner’s attempt to prevent the
prescriptive use must cause the prescriptive user to actually
abandon the use.
¶34 For this reason, any action taken by a landowner to stop a
prescriptive use is effective only where it actually stops the use. In
fact, where a landowner attempts, but fails, to interrupt a
prescriptive use, the unsuccessful attempt serves only to reinforce
“the argument that the use is adverse,” and so “does not work an
interruption.”18 Accordingly, it “is not sufficient merely to attempt
an interruption or to render the use less convenient. The
obstruction must in fact interfere with the claimant’s usage. Thus,
the erection of gates during the prescriptive period is immaterial
where they do not prevent a claimant from using a road.”19
¶35 So, under the Restatement’s approach to the continuous
use element, evidence that a landowner does not acquiesce in a
prescriptive user’s use or that the landowner unsuccessfully
attempted to stop the prescriptive use would not interrupt the
running of the prescriptive period. Our case law is consistent with
this approach.
¶36 Under our case law, a prescriptive use is “continuous”
where the prescriptive user used the easement “whenever they
desired and as a right.”20 And we have explained that this use
must have been continually “against” the rights of the landowner,
rather than “under” the landowner, for the entire prescriptive
period.21 So, like the Restatement, our case law has identified a
mental aspect of prescriptive use—an “adverse” mental state or a
mental state “against” the owner.
¶37 And, also like the Restatement, our case law recognizes
that it is the mental state of the prescriptive user, rather than of
the landowner, that matters in determining whether a use was
continuous for the entire prescriptive period. For example, in Lunt
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18 Id.
19 JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS &
LICENSES IN LAND § 5:16 (2019) (footnotes omitted).
20 Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977).
21 Zollinger v. Frank, 175 P.2d 714, 715 (Utah 1946).
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v. Kitchens,22 we held that a prescriptive easement had not been
formed because the landowner had “produced evidence that [the
prescriptive user] considered the use permissive and not
adverse.” So in Lunt it was the prescriptive user’s belief that he
was using the road with the landowner’s permission that
prevented the prescriptive easement from being formed.
¶38 And in Crane v. Crane,23 we clarified that a prescriptive
user can maintain an adverse mental state even where an owner
offers permission to continue using the easement. In that case we
held that a prescriptive easement had been established, even
though the landowner had provided the prescriptive users with a
key to enter through a gate. The landowner argued that his act of
giving the prescriptive users a key rendered the prescriptive use
permissive, rather than adverse. But we disagreed.24
¶39 Although we acknowledged that the landowner had
offered the prescriptive users a key, we held that the “use was
adverse to rather than by permission of” the landowner.25 We did
so “in view of the [prescriptive users’] insistence . . . that they had
a right to use the trail and would force their way through if
necessary.”26 In other words, we held that the landowner’s offer to
permit the users to cross his land did not interrupt the
prescriptive use, because it was clear that the prescriptive users
would have continued using the easement even without that
permission. So our decision in Crane demonstrates that a
landowner cannot interrupt the prescriptive use of an easement
by offering permission to continue using the easement. Instead,
the prescriptive use is interrupted only where the prescriptive
user submits to the ownership rights of the landowner by
accepting the landowner’s permission.
¶40 Additionally, our focus on the mental state of the
prescriptive user means that, where the user has consistently
maintained an adverse mental state, the landowner’s acquiescence
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22 260 P.2d 535, 538 (Utah 1953).
23 683 P.2d at 1065.
24 Id.
25 Id.
26 Id.
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or lack of acquiescence is insufficient to interrupt the prescriptive
period. Crane also illustrates this principle. Although the
landowner in Crane attempted to grant the prescriptive users
permission at one point during the twenty-year prescriptive
period, at other times he attempted to stop the prescriptive use by
erecting a gate and refusing to provide the key.27 But even though
these attempts provided clear evidence that the landowner did
not acquiesce in the prescriptive users’ use of the easement, this
lack of acquiescence did not interrupt the running of the
prescriptive period.28 In other words, because it is the mental state
of the prescriptive user, and not the mental state of the
landowner, that controls whether a prescriptive use has been
continuous, evidence that the landowner clearly did not
“acquiesce” was insufficient to rebut evidence that the
prescriptive user had continuously maintained an adverse mental
state throughout the prescriptive period.
¶41 Accordingly, under our case law it is the mental state of
the prescriptive user, rather than the mental state of the
landowner, that determines whether a prescriptive period has
been interrupted. So our case law is consistent with the
Restatement principle that a landowner’s “grant of permission to
the prescriptive user” will not “work an interruption unless the
user submits to the title of the landowner by accepting the license
offered.”29
¶42 Our case law is also consistent with the Restatement’s
requirement of continuous physical use by the prescriptive user.
As we already explained, under the Restatement’s approach,
where a landowner attempts, but fails, to interrupt a prescriptive
use, the unsuccessful attempt serves only to reinforce “the
argument that the use is adverse,” and so “does not work an
interruption.”30 In Crane, the prescriptive use was not interrupted
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27 Id.
28 Id.
29RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.
LAW INST. 2000).
30 Id.; see also JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF
EASEMENTS AND LICENSES IN LAND § 5:16 (2019) (explaining that it
“is not sufficient merely to attempt an interruption or to render
(Continued)
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when the landowner erected physical barriers, because each time
the landowner erected those barriers the prescriptive users “cut
the fence and the gate and went through anyway.”31 Thus our
decision in Crane demonstrates that an attempt by the landowner
to stop a prescriptive use interrupts the prescriptive period only
where it “brings about a cessation of use” that is “long enough to
indicate” that the prescriptive user has abandoned the use.32
¶43 As illustrated by our case law, our approach to the
“continuous use” element of prescriptive easements is consistent
with the Restatement’s approach. And under that approach, there
“are two aspects to the requirement that a prescriptive use be
continued for the prescriptive period: one mental, the other
physical.”33 This means that a landowner may interrupt a
prescriptive period only by altering the mental state of the
prescriptive user (so that the prescriptive user begins using the
easement under the owner rather than against the owner) or by
successfully halting the actual use of the easement. Under this
approach, the Harrisons’ arguments regarding the interruption of
the Hollands’ prescriptive use fail.
¶44 First, the Harrisons argue that the Hollands’ use of the
road was interrupted because Mr. Harrison clearly indicated that
he did not acquiesce in the use of the road. But, under the
Restatement’s approach, whether the Harrisons acquiesced in the
Hollands’ use is relevant only to the extent it provides evidence of
the Hollands’ mental state. In other words, in analyzing whether
the Hollands’ prescriptive use was continuous for twenty years,
we need determine only whether the required mental or physical
aspects of the Hollands’ use were uninterrupted. And with this
inquiry in mind, it is clear that Mr. Harrison’s attempt to prohibit
the Hollands from using the road did not interrupt the
prescriptive period.
the use less convenient. The obstruction must in fact interfere with
the claimant’s usage. Thus, the erection of gates during the
prescriptive period is immaterial where they do not prevent a
claimant from using a road” (footnotes omitted)).
31 683 P.2d at 1065.
32RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.
LAW INST. 2000).
33 Id.
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¶45 After Mr. Harrison told the Hollands they could not use
the road, the Hollands did not indicate that they submitted to the
Harrisons’ ownership of the road in any way. The Hollands did
not abandon their claim to the road nor did they cease to use it. So
Mr. Harrison’s attempt to prohibit the Hollands from using the
road did not alter the Hollands’ mental state regarding their right
to use the easement. That is, it did not cause them to believe that
they could only use the road with the Harrisons’ permission. And
it did not alter the Hollands’ physical use of the road.
¶46 Second, the Harrisons cite the Restatement to argue that a
call to the police in June—after Mr. Harrison’s argument with
Mr. Holland—constituted sufficient “legal proceedings” to
interrupt the prescriptive period. But, as we have discussed,
under the Restatement’s approach, a use may be interrupted only
where a landowner successfully alters the mental state of the
prescriptive user so that it is no longer adverse (or “against” the
owner), or where the landowner actually stops the use. So even
though a landowner may certainly use legal proceedings to stop a
prescriptive user from using the easement, the commencement of
legal proceedings, on its own, does not interrupt the prescriptive
period unless it causes the prescriptive user to cease using the
easement adversely or it leads to a successful outcome on the
landowner’s behalf.
¶47 The Bruce and Ely treatise, The Law on Easements &
Licenses in Land, states this principle clearly. Bruce and Ely
explain that, in “addition to actually obstructing adverse
usage . . . , a landowner may interrupt the use by instituting
successful legal proceedings.”34 But they explain that the “filing of
an action by a landowner against whom the statute of limitations
is running will interrupt the prescriptive period [only] if the
lawsuit results in a judgment that the use was improper.”35 So
where a landowner prevails against a prescriptive user, the
“judgment relates back to the start of the proceedings” and the
use is deemed to have been interrupted when the lawsuit was
__________________________________________________________
34JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS
AND LICENSES IN LAND § 5:16 (2019).
35 Id.
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Opinion of the Court
filed.36 Thus a successful judgment against a prescriptive user is
deemed to have interrupted the prescriptive user’s use as of the
date the lawsuit was filed. But an unsuccessful lawsuit does not
interrupt the use at all.
¶48 Under this rule, the phone calls to the police were
insufficient to interrupt the running of the prescriptive period.
Accordingly, the Harrisons’ other argument regarding the
interruption in the Hollands’ use of the easement fails.
¶49 In sum, under our case law a prescriptive use is
interrupted where the prescriptive user alters the mental or
physical nature of his or her use of the easement. So a prescriptive
use is interrupted where a prescriptive user submits to the rights
of the landowner or ceases to use the prescriptive easement.
Because the Harrisons fail to point to any evidence that the
Hollands submitted to the Harrisons’ ownership of the easement
or that the Hollands stopped using it, the district court did not err
in concluding that the use of the easement had not been
interrupted.
II. We Affirm the District Court’s Determination That the
Hollands’ Prescriptive Use Was Adverse Rather Than Permissive
¶50 The Harrisons also argue that the district court erred on
summary judgment because any use of the road by the Hollands
was done with the permission of the original owner of the
Harrisons’ lot. But the record evidence does not support this
argument.
¶51 Where a prescriptive user “has shown an open and
continuous use of the land under claim of right for the
twenty-year prescriptive period, the use will be presumed to have
been adverse.”37 But the landowner may rebut this presumption
by showing that “the use was initially permissive.”38 The
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36 Id.; see also id. (explaining that a “dismissed or abandoned
action, however, does not toll the running of the statute of
limitations”). We note, of course, that landowners are free to
defend their property rights through any appropriate legal
avenue, including by requesting a preliminary injunction at the
beginning of litigation.
37 Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).
38 Id. at 312 (emphasis added).
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Harrisons assert that the use in this case was initially permissive,
so they have rebutted the presumption of adverseness. In support
of this assertion, they point to the declaration of Janice Hawley
(now Janice Gustafson), who owned the property when the road
was built. But, after considering the undisputed evidence on
record, we conclude the Harrisons fail to rebut the presumption of
adverseness. They fail for two reasons.
¶52 First, it is undisputed that the road was created by
Manuel Torres, the Hollands’ predecessor-in-interest, without
Ms. Hawley’s knowledge or authority. Although Ms. Hawley
states, in her declaration, that the road was used “pursuant to
permission from [her],” she also admits that she “neither knew of
nor authorized the creation of the road in advance.” So the record
clearly demonstrates that the road was created and initially used
by the Hollands’ predecessor-in-interest without Ms. Hawley’s
permission.
¶53 And there is no evidence that Mr. Torres or the Hollands
ever accepted Ms. Hawley’s permission. As our discussion of the
“continuous” element above demonstrates, a landowner’s later
grant of permission does not interrupt a prescriptive period
unless the prescriptive user accepts the permission and thereby
submits to the ownership of the landowner. 39 Because the record
clearly demonstrates that the initial use of the property was
adverse to Ms. Hawley’s rights and there is no evidence
suggesting that Mr. Torres or the Hollands accepted Ms. Hawley’s
permission, Ms. Hawley’s testimony does not rebut the
presumption of adverseness.40
__________________________________________________________
39 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.16 cmt. f (AM.
LAW INST. 2000) (“A use that begins as adverse can be converted
to a permissive or subordinate use if the user agrees to accept a
license from the landowner, or if the user acts in such a way that
the ordinary landowner would believe that the user has accepted
the grant of a license to use the land.”); id. § 2.17 cmt. j (explaining
that “the grant of permission to the prescriptive user” does not
cause “an interruption unless the user submits to the title of the
landowner by accepting the license offered”).
40Because there is no evidence that Mr. Torres accepted
Ms. Hawley’s permission, her “permission” is better characterized
as acquiescence, which cannot rebut the presumption of
(Continued)
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Opinion of the Court
¶54 Second, the Harrisons have failed to rebut the
presumption because it is undisputed that Ms. Hawley authorized
Mr. Torres to use the road only “to take prospective purchasers to
the property for marketing purposes.” But there is no evidence the
Harrisons have ever used the road for marketing purposes or
sought permission to use the easement for that purpose. So even if
Ms. Hawley had given Mr. Torres permission to use the road for
marketing purposes before he had begun using the road (and
Mr. Torres accepted that permission), that would not have made
the Hollands’ subsequent use (beginning on August 9, 1996) for
residential access permissive. So Ms. Hawley’s grant of
permission for marketing purposes is irrelevant in this case.
¶55 Because the evidence in Ms. Hawley’s declaration fails to
rebut the presumption of adverseness created by the Hollands’
open and continuous use of the easement for twenty years, we
affirm the district court’s decision regarding adverseness.
III. We Hold That the Jury Instruction Was Erroneous
¶56 The Harrisons also argue that one of the jury instructions
was erroneous because the instruction failed to instruct the jury
that the scope of the easement was limited to its historical use. We
agree.
¶57 As we explain in our decision in SRB Investment Co. v.
Spencer,41 a prescriptive easement is defined by its type (or
purpose) and by its scope. The type of easement should be
defined broadly by the purpose for which it was historically used
during the prescriptive period. In this case, the historical purpose
of the easement was to access the Hollands’ property. In contrast,
a prescriptive easement’s scope should be defined with
particularity based on the nature or extent of that historical use.42
The historical purpose and scope of the prescriptive use limit both
adverseness. See Judd v. Bowen, 2017 UT App. 56, ¶ 25, 397 P.3d
686 (explaining that “mere acquiescence” does not rebut the
presumption of adverseness).
41 2020 UT 23, ¶ 10, ---P.3d---.
42 Id.
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the extent of the easement right granted as well as the physical
boundaries of the easement itself.43
¶58 The historical purpose for which an easement was used
limits the prescriptive right because an easement “for one purpose
gained by user cannot be turned into a[n] [easement] for another
purpose if the latter adds materially to the burden of the servient
estate.”44 And the historical scope of an easement limits the
prescriptive right because the prescriptive right “cannot be
enlarged to place a greater burden or servitude” on the servient
estate.45 In other words, the scope of a prescriptive easement is
limited by the burden historically imposed on the servient estate
during the prescriptive period.46 For this reason, the prescriptive
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43 Whitesides v. Green, 44 P. 1032, 1033 (Utah 1896); see also Big
Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946)
(“It is elementary that the use of an easement must be as
reasonable and as little burdensome to the servient estate as the
nature of the easement and its purpose will permit.” (emphases
added) (citation omitted)).
44Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (citation
omitted).
45 Id. (“The use during the prescriptive period is the only
indication of the nature and extent of the right acquired. The
servient estate can only be subjected to the easement to the extent
to which the easement was acquired, and the easement owner
cannot change this use so as to put any greater burden upon the
servient estate.” (citation omitted)).
46 In SRB Investment Co., we discussed factors that are relevant
in defining the scope of a prescriptive easement. 2020 UT 23, ¶ 38.
We explained that in almost every case courts should consider
“the physical dimensions of the prescriptive use, the frequency
and intensity of the use, and the effect of the use on the aesthetic
and economic value of the property.” Id. We also explained that
“courts may also consider the subjective purpose for using the
easement, as well as the nature of the use of the dominant estate,
but only to the extent those factors are helpful in determining the
nature of the burden on the servient estate.” Id. Finally, we
explained that, “in determining the scope of a prescriptive right,
courts should take a flexible approach that permits changes of use
(Continued)
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Opinion of the Court
user may not acquire a right that “places a greater burden on the
[landowner]” than was placed through the entirety of the
prescriptive period.47 With these principles in mind, it is clear that
the instruction in this case failed to properly instruct the jury
regarding the scope of the easement because it allowed the jury to
define the scope of the easement in a way that imposed a greater
burden on the Harrisons’ property than had been imposed
historically.
¶59 Jury instruction number twenty-seven, the instruction at
issue in this case, informed the jury that all “elements of a claim of
prescriptive easement” had been met, and that the Hollands had
acquired a prescriptive easement across the Harrisons’ property
“to access their own property.” The instruction then stated the
following:
What remains for [the jury] to decide is the width of
the easement that is necessary for the [Hollands] to
access their property. [The jury] ha[s] heard
testimony about the nature of the roadway during
the 20 years of use, as well as a survey of the current
shape and location of the roadway.
[The jury] should determine what is reasonably
necessary, from the facts and circumstances of this
case, for [the Hollands] to access their property,
taking into account the historic[al] use and shape of
the roadway during its 20 years of use. [The jury]
may express [its] decision in terms of the survey, or
by determining the width of the easement.
This instruction errs because it treats the nature and extent of the
twenty-year historical use as a factor in determining the scope of
the easement, rather than as the ultimate question to be decided. It
does this in both instances where historical use is mentioned.
¶60 First, the instruction reminds the jury that they “heard
testimony about the nature of the roadway during the 20 years of
use, as well as a survey of the current shape and location of the
roadway.” In this way, the instruction placed evidence of
so long as those changes do not materially burden the servient
estate or materially interfere with the prescriptive right.” Id.
47 Big Cottonwood Tanner Ditch Co., 174 P.2d at 164.
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historical use on equal terms with evidence of “the current shape
and location of the roadway.” This distorted the jury’s task and
suggested that it could grant an easement exceeding the historical
scope of use (and the burden imposed on the Harrisons’ property)
if it believed it “necessary” to access the Hollands’ property.
¶61 Second, the instruction requires the jury to “determine
what is reasonably necessary . . . for [the Hollands] to access their
property, taking into account the historic[al] use and shape of the
roadway during its 20 years of use.” Again, this language
distorted the jury’s task. It did so by treating the historical nature
of the use merely as a factor in the scope analysis rather than the
ultimate question to be decided.
¶62 So the jury instruction in this case is erroneous because,
rather than requiring the jury to determine what was reasonably
necessary for the Hollands to continue their historically established
use, it required the jury to determine what was reasonably
necessary for the Hollands to access their property, with historical
use being just one factor in that determination. And this error
prejudiced the Harrisons.
¶63 Although it is unclear from the record how wide the road
in this case was at the beginning of the prescriptive period, it is
clear that the road was expanded somewhat in 2008. This
indicates that the width of the road at the time of trial was wider
than the “historical” width of the road. Despite this evidence, the
jury appears to have awarded the Hollands an easement that is
wider even than the width of the road at the time of trial.48 And,
on the special verdict form, the jury stated that it felt this width
was appropriate so that it would be “consistent with other
easements in [the] Subdivision.” This suggests that the jury’s
prevailing concern was to find a “reasonable” width rather than a
width that would reasonably allow the Harrisons to continue their
“historical” use.
__________________________________________________________
48 Mr. Harrison estimated the width of the road in 2016 to be
about thirty feet, but the jury awarded an easement forty feet
wide.
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Opinion of the Court
¶64 Accordingly, we hold that the jury instruction was
erroneous and that the error prejudiced the Harrisons. For this
reason, we remand for a new trial with a corrected instruction.49
IV. We Affirm the District Court’s Decision to Admit Testimony
of the Hollands’ Expert
¶65 Next, the Harrisons argue the district court erred in
admitting testimony of the Hollands’ retained expert, Mr. Blake.
They argue that Mr. Blake’s testimony should have been
excluded, under rule 702 of the Utah Rules of Evidence, because
Mr. Blake had failed to reliably apply his expertise to the facts of
this case. They also argue that the district court should have
excluded Mr. Blake’s testimony, under rule 401 of the Utah Rules
of Evidence, because it was irrelevant. But after considering the
record evidence, we conclude that the district court did not abuse
its discretion in finding that Mr. Blake had reliably applied his
__________________________________________________________
49 Additionally, we note that, in their brief, the Harrisons
argue that the “reasonably necessary” language is unsupported
by and contrary to law. Although we agree that, as it was used in
this case, the “reasonably necessary” language did not correctly
describe the law, we disagree that this language, when used in the
proper context, is unsupported by our case law.
We have explained that in some cases the scope of a
prescriptive easement is a “question of reasonable necessity.” Id.
at 158 (noting that while the “substance of the easement is shown
by the usage,” “the form [of the easement] is a question of
reasonable necessity”). But a determination of “reasonable
necessity” need only be made in cases where there is no better
evidence of the nature and extent of the historical use of the
easement. So, for example, in a case where a prescriptive user has
historically used a road across another’s property for the purpose
of accessing a camping site with a truck and camping trailer, but
the scope of the easement is unclear, the fact finder could properly
determine the physical dimensions of the easement based on what
would be reasonably necessary to transport a truck and camping
trailer across the property. But in no event should such a
determination lead the fact finder to find, as it appears to have
found in this case, that the width of the easement is wider than it
was at any point during the prescriptive period.
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expertise to the facts in this case and in finding that the evidence
was relevant.
A. Mr. Blake’s methods were reliably applied to the facts of this case
¶66 The district court did not abuse its discretion in finding
that Mr. Blake reliably applied his expertise to the facts of this
case. The Harrisons do not challenge Mr. Blake’s credentials as a
land surveyor nor do they contend that his survey methodology
was flawed or incorrectly performed when he visited the
properties at issue. Instead, they argue that by measuring the
scope and extent of the road, rather than the scope and extent of
the prescriptive easement based on historical use, Mr. Blake did
not reliably apply his methodology to the facts of this case. We
disagree.
¶67 In 2016, Mr. Blake performed a survey of the road
crossing the Harrisons’ property. At trial, Mr. Blake testified
regarding this survey. In other words, Mr. Blake testified
regarding the dimensions of the road crossing the Harrisons’
property in 2016. Significantly, Mr. Blake did not purport to
testify regarding the historical dimensions of the road. Rather, his
testimony was limited to describing the process by which he
surveyed the road in 2016. In fact, he informed the jury that he
had not looked at historical photographs of the road, had not seen
the road in the past, and did not “have any information at all on
where that road went or how big it was in 1996.” Thus,
Mr. Blake’s expert testimony was limited to providing evidence
regarding the dimensions of the road in 2016.
¶68 The Harrisons argue that Mr. Blake’s testimony was
unreliably applied to the facts of this case because he made no
attempt to adjust the measurements of his 2016 survey “based on
representations or evidence from any source concerning the
original scope and course of the roadway.” But this argument
appears to be based on a key misunderstanding of Mr. Blake’s
expert testimony: Mr. Blake testified regarding the dimensions of
the road in 2016, not the dimensions of the prescriptive easement
based on its historical use. The dimensions of the road presented a
factual question to which Mr. Blake’s expert testimony provided
valuable insight. But the dimensions of the prescriptive easement
presented a legal question for the jury to answer pursuant to the
legal instructions provided by the district court.
¶69 In challenging Mr. Blake’s testimony for failing to
account for the historical usage of the road, the Harrisons suggest
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Opinion of the Court
that the only admissible purpose of Mr. Blake’s testimony would
have been to opine on the ultimate issue to be decided in the case.
This is incorrect. An expert witness is not required to offer an
opinion directly on the ultimate issue in the case. 50 And, as we
discuss in subsection B, Mr. Blake’s testimony regarding the
physical dimensions of the road in 2016 provided helpful
information to the jury. So, by offering evidence of the physical
dimensions of the road as it existed in 2016, Mr. Blake’s testimony
was not unreliably applied to the facts of this case.
B. Mr. Blake’s methods were relevant under the permissive standard of
rule 401 of the Utah Rules of Evidence
¶70 The district court also did not abuse its discretion in
finding, under rule 401, that Mr. Blake’s testimony was relevant.
The Harrisons argue that Mr. Blake’s testimony regarding the
physical dimensions of the road is “of no consequence in
determining the scope of a prescriptive right which, by law, must
have ripened (if at all) during a 20-year period preceding the
filing of this lawsuit.” But this argument fails because evidence
regarding the scope and extent of the road at the end of the
twenty-year prescriptive period is relevant under rule 401.
¶71 Under rule 401, evidence is relevant if “it has any
tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in
determining the action.” This presents a “very low bar” for the
admission of evidence.51 And under this low bar, evidence
regarding the scope and extent of the road at the end of the
twenty-year prescriptive period is relevant to the ultimate issue in
this case.
¶72 In this case, the ultimate issue is the scope of the
Hollands’ prescriptive easement. To assist the jury in making this
determination, the parties presented evidence regarding the
physical dimensions of the easement at the beginning, in the
middle, and at the end of the prescriptive period. Included in this
__________________________________________________________
50 In fact, as we discuss in Part V of this opinion, expert
testimony may be excluded if it crosses the line into impermissible
legal opinion.
51State v. Richardson, 2013 UT 50, ¶ 24, 308 P.3d 526 (internal
quotation marks omitted).
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evidence was testimony that the road had been expanded at some
point during the twenty-year prescriptive period. Because the
road had been expanded, Mr. Blake’s testimony regarding the
physical dimensions of the road at the end of the twenty-year
period could not reliably provide the sole basis for the jury’s
determination regarding the scope of the easement. But this does
not mean that Mr. Blake’s testimony did not provide any relevant
information to the jury.
¶73 While Mr. Blake’s testimony may be of limited relevance
when compared to more direct evidence regarding the scope of
the easement at the beginning and in the middle of the
prescriptive period, it nevertheless overcomes the low bar for
relevance under rule 401. The testimony is relevant because it
provided the jury with the upper limits of the permissible scope of
the easement. In other words, by testifying about the physical
dimensions of the road across the Harrisons’ property in 2016,
Mr. Blake provided the jury with a clear limit to what it could find
regarding the width of the prescriptive easement. In this way,
Mr. Blake’s testimony regarding the scope of the road in 2016
provided probative information regarding a fact that was of
consequence in the litigation. Accordingly, the district court did
not abuse its discretion in finding Mr. Blake’s testimony to be
relevant.
¶74 In sum, we affirm the district court’s decision to admit
Mr. Blake’s expert testimony because the court did not abuse its
discretion in finding Mr. Blake’s testimony reliable and relevant.
V. We Affirm the District Court’s Decision to Exclude Testimony
of the Harrisons’ Rebuttal Expert
¶75 Finally, the Harrisons argue the district court erred in
excluding the rebuttal testimony of their expert, Mr. Bunker. Once
again, we disagree.
¶76 In reviewing “the exclusion of evidence, we grant a trial
court broad discretion to admit or exclude evidence and will
disturb its ruling only for abuse of discretion.”52 And we will not
find that a district court abused its discretion “unless the ruling
__________________________________________________________
52 Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 43, 221 P.2d
205 (citation omitted).
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Opinion of the Court
was beyond the limits of reasonability.”53 In this case, the court
excluded Mr. Bunker’s testimony because it found the testimony
would usurp the court’s role in instructing the jury regarding the
scope of a prescriptive easement. We cannot say this ruling went
beyond the limits of reasonability.
¶77 In the Harrisons’ expert designation for Mr. Bunker, they
stated that Mr. Bunker would testify “to the procedure for
determining the location of a prescriptive easement.” At trial, the
Harrisons explained that the purpose of Mr. Bunker’s testimony
would be to point out that “Mr. Blake’s survey was not based on
historic[al] use of the easement claimed by [the Hollands].” And
in their brief, they explain that “Mr. Bunker was prepared to
address, as a qualified land surveyor whose credentials matched
Mr. Blake’s own, why Mr. Blake’s approach to establishing the
centerline of the supposed prescriptive easement was flawed.”
¶78 As with their argument regarding the admissibility of
Mr. Blake’s expert testimony, this argument appears to be based
on a key misunderstanding of this testimony. As we discussed
above, Mr. Blake testified regarding the dimensions of the road in
2016, not the dimensions of the prescriptive easement based on its
historical use. So the dimensions of the road presented a factual
question to which Mr. Blake’s expert testimony provided valuable
insight, but the dimensions of the prescriptive easement presented a
legal question for the jury to answer based on the legal
instructions provided by the district court. Because the Harrisons
repeatedly state that Mr. Bunker would testify regarding the
dimensions of the prescriptive easement, rather than the
dimensions of the road, it is reasonable to conclude that
Mr. Bunker’s testimony might usurp the court’s role in instructing
the jury regarding the legal requirements of prescriptive
easements. This provides adequate ground for exclusion.
¶79 We have explained that “[o]pinion testimony is not
helpful to the fact finder when it is couched as a legal conclusion.
These extreme expressions of the general belief of the expert
witness tend to blur the separate and distinct responsibilities of
the judge, jury, and witness.”54 Because the Harrisons’ statements
__________________________________________________________
53 Id. (citation omitted) (internal quotation marks omitted).
54 Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah
1993).
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regarding the purpose of Mr. Bunker’s testimony suggest that
Mr. Bunker would have couched his testimony in legal terms, it
was reasonable for the court to find that the purpose of
Mr. Bunker’s testimony was to instruct the jury regarding what
could and could not be considered as part of the jury’s
prescriptive easement determination. For this reason, the court
did not err in concluding that Mr. Bunker’s testimony would
usurp its role in providing those instructions.
Conclusion
¶80 Because the district court did not err, on summary
judgment, in ruling that a prescriptive easement had formed, we
affirm its summary judgment decision. Additionally, we affirm
the district court’s decisions regarding the admissibility of the
parties’ respective expert witnesses because neither decision
constituted an abuse of discretion. But, because the court
incorrectly instructed the jury regarding the scope of the
prescriptive easement, we remand for a new trial with a correct
jury instruction.
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