Judd v. Bowen , 397 P.3d 686 ( 2017 )

2017 UT App 56THE UTAH COURT OF APPEALS
ROBERT L. JUDD III AND CHARLES L. ALLEN,
Appellees,
v.
DAVID BOWEN,
Appellant.
Opinion
No. 20140285-CA
Filed March 30, 2017
Third District Court, Salt Lake Department
The Honorable Su J. Chon
No. 110917049
Michael D. Zimmerman, Clemens A. Landau, and
Russell A. Cline, Attorneys for Appellant
Bruce J. Nelson and Jeffery S. Williams, Attorneys
for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUSTICE
JOHN A. PEARCE concurred.1 JUDGE GREGORY K. ORME concurred
in part and dissented in part, with opinion.
ROTH, Judge:
¶1 David Bowen appeals from a judgment granting a
prescriptive easement to Robert L. Judd III and Charles L. Allen
to use and park on his driveway. We affirm in part and reverse
in part and remand the case for further proceedings.
1. Justice John A. Pearce began his work on this case as a
member of the Utah Court of Appeals. He became a member of
the Utah Supreme Court thereafter and completed his work on
the case sitting by special assignment as authorized by law. See
generally Utah R. Jud. Admin. 3-108(3).
Judd v. Bowen
BACKGROUND
¶2 This appeal centers on a century-old circular driveway
(the Driveway) between two cabins in Big Cottonwood Canyon.
The cabin on the southeast of the Driveway belongs to the
Bowens, 2 and the Driveway is located almost entirely on their
property. The cabin to the northeast of the Driveway belongs to
the Judds, who claim a legal right stemming from historic usage
to access their property over the Driveway and to park within its
bounds.
¶3 A dirt road diverging from the top of Big Cottonwood
Canyon Scenic Byway provides access to both properties. In the
early 1900s, the predecessors of the two parties built cabins next
to each other. At some point during that time, the Driveway was
also constructed. The dirt access road terminates at the Driveway.
The Driveway is circular, one lane, and narrow, bounded along
its outer and inner borders by foliage, shrubbery, boulders, and
sloping ground. With the exception of a sliver of its northern
portion, the Driveway is located on the Bowens’ property. While
the Driveway is currently not the only access or parking
available for Judd cabin users, over the years it has been their
primary access for ingress, egress, and parking purposes. The
Driveway also currently provides the Judds’ only access to a
private driveway in front of their cabin. For the Bowens and
their predecessors, the Driveway has served as the only access to
their cabin for the owners and their guests.
¶4 The cabins’ original builders had been close friends, and
until 2008, the Judds and Bowens had coexisted peaceably. For
many years, descendants of the original owners of both cabins
shared use of their respective cabins among their family
2. Although the parties are individuals, they refer to their
interests in the property at issue as historically aligned with the
Bowen family or the Judd family. Accordingly, we refer to the
parties here as the Judds and the Bowens for convenience.
20140285-CA 2 2017 UT App 56Judd v. Bowen
members, with no single family group or member assigned more
than a few weeks of dedicated time at either cabin per year. In
addition, both groups used their respective cabins during
holidays and other special occasions for parties and family
gatherings. The Bowens maintain that it was always understood
that the Driveway was the Bowens’ property, and that the Judds’
use was permitted only out of neighborly accommodation, while
the Judds maintain that they had “always” used the Driveway as
a sort of given; it was their “custom” and “just what [they’d]
done.” Until relatively recently, the users of the two cabins
rarely encountered each other on the Driveway, and the
respective groups only occasionally hampered each other’s
ability to access or enjoy the use of it. On the rare occasions
when a Bowen user was already parked on the Driveway when a
Judd user arrived, the Judd user would “work around” that
impediment and find other access and parking. On the occasions
when a Judd user was parked on the Driveway or otherwise
blocking a Bowen user’s access and parking, the Bowens would
request that the Judd user move the vehicle, and the request was
always accommodated.
¶5 In 2006, David Bowen bought out his siblings’ interests
and became the sole owner of the Bowen cabin. As a result, his
use of the Bowen cabin increased while the Judds continued to
use their cabin under the customary assigned-time arrangement.
In 2008, an incident occurred where a Judd user, for the first
time, refused to move a vehicle off the Driveway at the Bowens’
request. A week later, one of the trustees who shared an interest
in the Judds’ cabin informed the Bowens that the Judds were
asserting a prescriptive right to use and park on the Driveway,
and that if the Judds were not able to park on the Driveway,
neither could the Bowens. Subsequently, the Bowens erected
gates that blocked the Judds from using the portion of the
Driveway closest to the Bowens’ cabin while allowing the Judds
access to the side of the Driveway closest to the Judds’ property.
The relationship continued to deteriorate, however, as access-
blocking incidents increased. The Bowens eventually told the
20140285-CA 3 2017 UT App 56Judd v. Bowen
Judds that they would no longer be allowed to use the Driveway
“absent a court order.”
¶6 The Judds filed suit in 2011 to establish a prescriptive
right to use the Driveway for ingress, egress, and parking
purposes. Following a four-day trial, the trial court found that
the Judd usage had been “open, notorious,” “under claim of
right,” and “adverse” for the twenty-year prescriptive period.
The court accordingly awarded the Judds a prescriptive
easement for “reasonable access and parking purposes
associated with” the Judds’ cabin usage. It also ordered the
Bowens to “immediately remove any gates, barricades, rocks,
decorative lighting, and recently-grown foliage blocking or
interfering with [the Judds’] historic access and use” of the
Driveway. The court ordered both parties to “refrain from
blocking any users” of either property and to “allow appropriate
parking thereon that does not interfere with either parties’ use of
the cabins located on such properties.”
¶7 The court’s judgment did not bring peace, however; both
parties filed motions to enforce the judgment and hold the other
in contempt based on various alleged violations of the court’s
order. The trial court clarified its final judgment in a January
2015 memorandum decision. In that decision, among other
things, the trial court ordered the Bowens to remove a decorative
rock border they had installed “sometime after 2008” because it
was “not historical,” to “restore the walkway adjacent to the
Bowen Cabin to a parking spot as was used historically prior to
2008,” and to remove “recently grown foliage and trees,” which
it defined as growth that had occurred following the 1950s to
1970s and is “now infringing upon the driveway.” 3 The Bowens
appeal.
3. The court stated that it “based its ruling [regarding the foliage
removal] on the historical aerial photos from the 1950s to 1970s
which showed very little tree growth in” the Driveway.
20140285-CA 4 2017 UT App 56Judd v. Bowen
ISSUES
¶8 The Bowens argue that the trial court erred when it
granted a prescriptive easement to the Judds. The Bowens also
argue, in the alternative, that the trial court abused its discretion
in determining the easement’s scope by granting parking rights
as part of the easement and “failing to set the boundaries of the
easement with reasonable certainty.”
ANALYSIS
¶9 Prescriptive easements have a long history in the common
law. Initially, they were based upon the rationale that a long and
particular use of land by a person other than the landowner was
evidence of a lost grant in favor of that user. See Richins v. Struhs,
412 P.2d 314, 315–316 (Utah 1966); Big Cottonwood Tanner Ditch
Co. v. Moyle, 174 P.2d 148, 151 (Utah 1946). Legal recognition of a
prescriptive right was said to restore and maintain that lost
grant, and the extent of the right was determined by the type of
use made of the land during the prescriptive period. Big
Cottonwood, 174 P.2d at 151–52. While the legal fiction behind
prescriptive easements is now seldom invoked, it continues to
provide justification for conferring prescriptive rights—namely,
that “peace” and the “good order of society” is assured by
“leaving a long established status quo at rest rather than by
disturbing it.” Richins, 412 P.2d at 315. In other words, if a non-
owner has long made use of land in a particular manner without
objection from the land’s owner, to prevent “dispute[s] after
several decades of amicable use,” the law recognizes a
prescriptive right for the non-owner to continue making use of
the land in the same way. See Homer v. Smith, 866 P.2d 622, 628
(Utah Ct. App. 1993) (“[T]he doctrine of prescriptive easement
was designed to give legal sanction to property arrangements
that have existed peacefully, openly, continuously and without
objection for the prescriptive period.”).
20140285-CA 5 2017 UT App 56Judd v. Bowen
¶10 To attain legal recognition of a prescriptive easement in
Utah, the claimant must prove by clear and convincing evidence
that the claimant’s “use of another’s land was open, continuous,
and adverse under a claim of right for a period of twenty years.”
Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998) (citation and
internal quotation marks omitted); see also Lunt v. Lance, 2008 UT
App 192, ¶ 18, 186 P.3d 978 (“Each of [the prescriptive easement
elements] must be proven by clear and convincing evidence.”).
However, “once 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.” Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998)
(plurality opinion). At that point, the landowner, “to prevent the
prescriptive easement from arising[,] has the burden of showing
that the use was under him instead of against him.” Zollinger v.
Frank, 175 P.2d 714, 716 (Utah 1946). Stated differently, once the
presumption of adverse use arises, “the owner of the servient
estate then has the burden of establishing that the use was
initially permissive” or that the adverse use, at some point
during the prescriptive period, became permissive, to prevent
the prescriptive right from being established. Valcarce, 961 P.2d
at 311–12. “In order for the use to have been permissive it would
have to appear that the parties understood that the driveway
was upon the [landowner’s] property; that it was with this
understanding that [the landowner] gave their consent to its use;
and similarly that the [claimants] so understood and accepted
and used it.” Richins, 412 P.2d at 316.
¶11 The Bowens challenge the trial court’s conclusions
regarding every required element of a prescriptive easement,
other than the twenty-year time requirement. They argue that
the trial court failed to “employ the correct legal standard” when
it determined that the Judds acquired a prescriptive right “to use
and park on” the Driveway. In particular, they argue that the
trial court failed to apply “the critical limitations built into the
common law elements of a prescriptive easement claim.” As
proof, they point to allegedly undisputed evidence, asserting
20140285-CA 6 2017 UT App 56Judd v. Bowen
that it precluded the Judds from clearly and convincingly
establishing several prescriptive easement elements.
¶12 “[W]hether the trial court applied the proper legal
standard is a question of law that is reviewed for correctness.”
Jacob v. Bate, 2015 UT App 206, ¶ 13, 358 P.3d 346 (alteration in
original) (citation and internal quotation marks omitted). While
the conclusion that a prescriptive easement has been acquired is
a question of law, because that determination is fact-intensive,
we afford the trial court a “broad measure” of discretion in its
application of the correct legal standard to a particular set of
facts and will overturn the determination only if the trial court
exceeded its discretion. Valcarce, 961 P.2d at 311 (stating that the
finding of an easement 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”); see also Lance,
2008 UT App 192, ¶ 9.
¶13 We first address the trial court’s easement determination,
affirming the court’s conclusion that the Judds have acquired a
prescriptive easement to use the Driveway for reasonable access
purposes but reversing the court’s parking easement
determination. We then address the scope of the trial court’s
orders in light of our conclusions.
I. Existence of the Prescriptive Easement
A. Access
¶14 The trial court concluded that the Judds had used the
Driveway for access continuously, as well as openly and
notoriously, since the early 1900s. It concluded that the Judds’
use was adverse and that the use was “neither originally nor
subsequently permissive.” The Bowens do not dispute the trial
court’s factual findings but instead contend that the court’s
conclusions failed to incorporate critical limitations of the
prescriptive easement elements and that, as a result, those
20140285-CA 7 2017 UT App 56Judd v. Bowen
conclusions are incorrect as a matter of law. Accordingly, “we
accept the trial court’s factual findings as true and analyze its
legal conclusions based on those findings.” Uhrhahn Constr. &
Design, Inc. v. Hopkins, 2008 UT App 41, n.2, 179 P.3d 808. “We
review the legal sufficiency of the factual findings—that is,
whether the trial court’s factual findings are sufficient to support
its legal conclusions—under a correction-of-error standard,
according no particular deference to the trial court.” Brown v.
Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (citation and
internal quotation marks omitted).
¶15 We conclude that the trial court’s factual findings support
its legal conclusions that the Judds had established a prescriptive
right to use the Driveway for access purposes. In particular, the
trial court’s findings permit the legal conclusion that the Judds
had established that their use of the Driveway for access
purposes was continuous and open and notorious and that the
presumption of adversity applied. The trial court’s factual
findings also support the conclusion that the Bowens have not
rebutted the adversity presumption. We address each
prescriptive easement element below.
1. Continuous
¶16 The continuity required to establish a prescriptive
easement does not entail frequent or constant use. Crane v. Crane,
683 P.2d 1062, 1064 (Utah 1984). Rather, “[a]ll that is necessary is
that the use be as often as required by the nature of the use and
the needs of the claimant.” Id.; Richards v. Pines Ranch, Inc., 559
P.2d 948, 949 (Utah 1977). Thus, the frequency of use is not
critical, and continuity can be established if the claimant can
show that he made use of the landowner’s property whenever
desired or required under the circumstances. See Richards, 559
P.2d at 949; see also Crane, 683 P.2d at 1064 (concluding that use
was continuous where a cattle grazing association drove cattle
over a portion of the landowner’s property twice a year—once in
the fall, and once in the spring, i.e., whenever the claimant
needed to do so). The use also “must appear not to have been
20140285-CA 8 2017 UT App 56Judd v. Bowen
interrupted by the owner of the land across which the right is
exercised[.]” Richards, 559 P.2d at 949 (citation and internal
quotation marks omitted).
¶17 With regard to continuity, the trial court found that, “[t]he
cabins appeared to have been built to use the Circular Driveway
to access the respective properties”; that “[a]ccess to the Judd
Cabin driveway is only available from the Circular Driveway”
and “there is no legal access to the Judd Cabin property without
passing over a portion of the Bowen Cabin property”; that
“users of the Judd Cabin and Bowen Cabin have historically
accessed their respective properties by using the Circular
Driveway located between the [cabins]” and that “[s]uch users
have entered and exited the properties by using the Circular
Driveway”; that before David Bowen acquired “the Bowen
Cabin property, no one owning an interest in the Bowen Cabin
property objected to the access . . . on the Circular Driveway by
users of the Judd Cabin”; and that “[f]rom at least 1935 to 2008,
the Circular Driveway was used regularly by owners and guests
of the Judd Cabin property and the Bowen Cabin property.”
¶18 These findings adequately support the trial court’s
conclusion that the Judds’ use of the Driveway for access
purposes was continuous. They demonstrate that the trial court
considered, as required, the “nature of the [Judds’] use” (driving
over a narrow one-lane circular driveway to access a cabin
property in a forested, mountainous location) in relation to the
Judds’ need to do so. See Crane, 683 P.2d at 1064. They also
support a legal conclusion that the Judds had continuously used
the Driveway to access their cabin for over seventy years,
whenever they desired to access their cabin. See Richards, 559
P.2d at 949 (“All that is required is that the use be as often as is
required by the owner of the dominant estate.”). Further, the
trial court made no findings suggesting that the Judds’ regular
and continuous use of the Driveway for access had been, as a
legal matter, broken or interrupted by the Bowens or their
predecessors between 1935 and 2008. See id. (noting that a
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claimant’s use “must appear not to have been interrupted by the
owner of the land across which the right is exercised”).
¶19 To be sure, as the Bowens point out, there was some
testimony at trial that not every Judd user was able to use the
Driveway for access purposes in every single instance when he
or she desired to do so and that the Judds’ use was, at times,
interrupted by Bowen cabin users. For example, several Judd
witnesses estimated that they were able to use the Driveway for
access purposes ninety-five percent of the time they attempted to
do so, which the Bowens assert demonstrates that the Judds
could not use the Driveway for access in every instance they
desired. And the Bowens also argue that the continuity
requirement was not met because the Bowens, at least in recent
years, “repeatedly interrupted the Judds’ use of the [Driveway]”
by asking Judd users to move their parked vehicles so that the
Bowens could use and park on the Driveway. The Bowens
contend that such evidence required the trial court to conclude
that the Judds’ use was not continuous as a matter of law.
¶20 But the Judds sought two distinct easement rights—the
right to use the Driveway for access and the right to use the
Driveway for parking. Evidence that the Bowens asked the
Judds to move vehicles parked on the Driveway is, at best,
evidence of interruption of the Judds’ asserted parking right, not
their access right; the fact that the Bowens, on rare occasions,
asked the Judds to move parked vehicles and that the Judds
accommodated does not demonstrate that the Bowens also
interrupted the Judds’ right to simply pass over the Driveway.
As a result, we do not consider evidence of interruption of the
Judds’ parking as evidence that the trial court was incorrect in its
continuity determination as to the Judds’ use of the Driveway
for access purposes.
¶21 And as to the access, while there was testimony from
some Judd witnesses that, on rare occasions, they could not use
the Driveway for access, there was also testimony from several
other Judd users that suggested the Driveway was used for
20140285-CA 10 2017 UT App 56Judd v. Bowen
access whenever it was needed or required, without limitation.
To the extent this evidence presented a choice of conflicting
evidence, we defer to the trial court’s judgment in resolving that
conflict. See Utah R. Civ. P. 52(a)(4) (“Findings of fact, whether
based on oral or other evidence, must not be set aside unless
clearly erroneous, and the reviewing court must give due regard
to the trial court’s opportunity to judge the credibility of the
witnesses.”); see also Lunt v. Lance, 2008 UT App 192, ¶ 19, 186
P.3d 978 (“[W]e may not substitute our judgment for that of the
trial court as trial courts are in a better position to weigh
conflicting evidence and evaluate the credibility of witness
testimony.”). And in any event, the Bowens have not challenged
the sufficiency of the evidence supporting the trial court’s factual
findings or demonstrated that the findings which seem to
support the legal conclusion that the Judds’ use was continuous
were clearly erroneous. Accordingly, we conclude that the trial
court’s factual findings support its legal conclusion that the
Judds’ use was continuous.
2. Open and Notorious
¶22 The open and notorious element requires a claimant to
prove that her use of another’s property was “with knowledge of
the landowner.” Lunt v. Kitchens, 260 P.2d 535, 537 (Utah 1953).
However, proof of actual notice or knowledge is not required.
Jensen v. Gerrard, 39 P.2d 1070, 1072 (Utah 1935). Rather,
knowledge may be imputed if the use is “notorious” enough that
the landowner could learn of it through “reasonable diligence.”
Id.
¶23 As with the continuity element, the trial court made
several findings relevant to its conclusion that the Judds’ use of
the Driveway for access purposes was open and notorious. It
found that “[t]he Circular Driveway has been open, notorious,
visible, and apparent to anyone visiting the Judd Cabin and the
Bowen Cabin”; “[David Bowen] was aware of the Circular
Driveway and use thereof by Judd Cabin visitors” when he
acquired the property in 2006; the Judds could not legally access
20140285-CA 11 2017 UT App 56Judd v. Bowen
their cabin property without passing over some portion of the
Bowens’ property; the “owners of the [two cabins] amicably
cooperated in the use of the Circular Driveway for access and
parking;” and “[g]iven the small area on which the Circular
Driveway was located, the parties would need to cooperate in a
neighborly and amicable fashion.” The court also found that the
“cabins appeared to have been built to use the Circular
Driveway to access the respective properties” and that “[t]he
Circular Driveway is also in close proximity to each cabin.”
¶24 These factual findings demonstrate that the trial court
properly considered whether the Judds’ use was known—
whether actually or constructively—to the Bowens and their
predecessors and thus support the trial court’s legal conclusion
that the Judds’ use was open and notorious. See id. Even though
the cabins were located in a relatively secluded area, the close
proximity of the two cabins, the obvious presence of the
Driveway and its placement, the history of cooperation, and the
Judds’ limited legal access to their property support the court’s
conclusion that the Bowens and their predecessors were aware
of (or should have been aware of) the Judds’ use and that the
Judds’ use was therefore open and notorious.
3. Adversity
¶25 The adversity element focuses on whether the claimant’s
use of land is “against the owner as distinguished from under the
owner.” Zollinger v. Frank, 175 P.2d 714, 715 (Utah 1946); accord
Lunt v. Kitchens, 260 P.2d 535, 537 (Utah 1953); Jacob v. Bate, 2015
UT App 206, ¶ 18, 358 P.3d 346. The Utah Supreme Court has
held that a presumption of adverse use arises “where a claimant
has shown an open and continuous use of the land for the
prescriptive period (20 years in Utah).” Zollinger, 175 P.2d at 716;
see also Jacob, 2015 UT App 206, ¶ 18 (same). Once this
presumption comes into play, the burden shifts to the landowner
to rebut it. See Zollinger, 175 P.2d at 716. This generally requires
the landowner to “establish[] that the use was initially
permissive.” Jacob, 2015 UT App 206, ¶ 19 (alteration in original)
20140285-CA 12 2017 UT App 56Judd v. Bowen
(citation and internal quotation marks omitted). As we explained
in Jacob, “the presumption of permissive use applies to cases
where there is evidence of a special relationship, such as a
license,” and in this regard, “Utah courts have differentiated
between consent or license and mere acquiescence.” 2015 UT
App 206, ¶ 21. Proof of the former—consensual use—rebuts the
adversity presumption; proof of the latter—mere acquiescence—
does not. See id. ¶¶ 21–22. And notably, the Utah Supreme Court
has explained that adversity does not require “any open
hostility” and that a use can be adverse even if “the
parties . . . were friendly, or even cordial with each other[.]” See
Richins v. Struhs, 412 P.2d 314, 316 (Utah 1966); accord Jacob, 2015
UT App 206, ¶ 18.
¶26 Here, because the trial court’s findings support its
conclusions that the Judds’ use of the Driveway for access was
continuous, open and notorious, and for the required twenty-
year period, the court properly presumed the Judds’ use for
access purposes to be adverse. Consequently, in order to prevent
the establishment of a prescriptive right to use the Driveway for
access purposes, the Bowens were required to demonstrate that
the Judds’ use was permissive.
¶27 The Bowens contend the adversity presumption was
inapplicable here because “the Bowens opened their driveway
for their own use and the Judds merely used it in the same way
as the Bowens” and that the Judds’ “use arose from neighborly
accommodation.” As proof, the Bowens refer to what they
characterize as undisputed evidence that, first, the Judds merely
used the Driveway in the same way that the Bowens did (and
only when the Bowens were not already blocking the Driveway),
and second, the Bowens “had a long history of accommodating
the Judds by allowing them to use [the Driveway] as a
turnaround and for additional parking when the Bowen cabin
was not in use.”
¶28 The court found that, although the initial cabin owners
were “good friends,” “[t]here was no evidence provided that the
20140285-CA 13 2017 UT App 56Judd v. Bowen
Circular Driveway was initially a permissive use between the
properties” and that “[t]here is no evidence that at the time of
separation of ownership of the Judd Cabin property and the
Bowen Cabin property that the use of the [Driveway] was
initially permissive.” Rather, the proximity of the cabins and
their near simultaneous construction, along with the apparent
lack of any other means of access to the Judds’ cabin at the time,
supported a reasonable inference that the use was not simply a
matter of sufferance. Thus, the court deemed the use adverse
and concluded that the use “was neither originally nor
subsequently permissive.” Implicit in the trial court’s findings is
the determination that the Bowens had not met their burden of
demonstrating that the Judds’ use was countenanced pursuant
to a “special relationship” between the parties—in other words,
the Bowens had failed to show that the Judds’ use was “under”
rather than “against” the Bowens or their predecessors in
interest. See Jacob, 2015 UT App 206, ¶¶ 21–22; Homer, 866 P.2d at
627 (explaining that a court’s “finding of adverse use is really the
other side of the permission coin” and that such a finding
“implicitly rejects” assertions regarding permissiveness based,
for example, on a person’s “opening a way across his or her
property that another uses it without causing damage”).
¶29 Further, the trial court made findings that implicitly
contradict the Bowens’ contentions. For example, rather than
finding that the Bowens’ predecessors opened the Driveway, the
court found that “the Circular Driveway was constructed” “[a]t
some point” during the 1900s when the cabins were also
constructed. The court further found that the cabins “appeared
to have been built to use the Circular Driveway to access the
respective properties,” particularly because the Driveway “is. . .
in close proximity to each cabin,” and that users of both cabins
had “historically accessed their respective properties by using
the Circular Driveway” and that the parties had “amicably
cooperated in the use of the Circular Driveway for access and
parking” for many years before 2006. The trial court did not find
that the Bowens’ predecessors alone constructed the Driveway
20140285-CA 14 2017 UT App 56Judd v. Bowen
or that the Judds made passive use of a way that simply
appeared to be open next to their property. Instead, the trial
court’s findings demonstrate that it was a matter of course from
the beginning that both parties used the Driveway for access to
their respective cabins, particularly given the configuration of
the Driveway vis-à-vis both cabins. These findings also show
that the court considered the Judds’ use as more than a result of
mere neighborly accommodation on the part of the Bowens. The
court expressly determined that the predecessors of both parties
had from the beginning used the Driveway for access and that
the Judds’ use was the result of mutual cooperation and
understanding between the parties, not of one-sided
accommodation on the part of the Bowens.
¶30 Moreover, because many of the trial court’s factual
findings seem to implicitly contradict the Bowens’ contentions
regarding the permissive nature of the Judds’ use, the Bowens
cannot successfully persuade us that the trial court’s legal
conclusion regarding adversity is in error without challenging
the sufficiency of the evidence underlying the court’s pertinent
findings. Although the Bowens characterize the evidence
regarding the Judds’ permissive use as undisputed and argue
that, as a matter of law, that evidence cannot support the court’s
adversity conclusion, the facts relied on by the Bowens appear to
simply be evidence culled from the record that supports their
own arguments, without acknowledging conflicting evidence
that the trial court’s findings necessarily resolved. Pointing to
the evidence they believe supports their argument is insufficient
to carry their “heavy burden” of persuading us to “reverse
under the deferential standard of review” we afford to factual
findings. See State v. Nielsen, 2014 UT 10, ¶¶ 31, 35, 40, 326 P.3d
645 (holding that a party seeking to challenge “the sufficiency of
the evidence to support a factual finding” must “identify and
deal with supportive evidence,” because a party who fails to do
so “will never persuade an appellate court to reverse under the
deferential standard of review that applies to such issues”).
20140285-CA 15 2017 UT App 56Judd v. Bowen
¶31 For example, though the Bowens claim that the Judds
made only passive use of the Driveway already established by
the Bowens’ predecessors, they fail to identify any evidence that
establishes that the Bowens unilaterally opened the Driveway
for access only to their own cabin property. See Buckley v. Cox,
247 P.2d 277, 279 (Utah 1952) (explaining that, “where a person
opens a way for the use of his own premises, and another person
also uses it without causing damage, in the absence of evidence
to the contrary, such use by the latter is permissive”). Further,
the Bowens fail to acknowledge that, while there may have been
some testimony at trial involving the Bowens’ accommodation of
the Judds’ use, there was also testimony that the Judds had long
used the Driveway for access continuously as a matter of course,
without seeking permission to do so or believing that any
permission was required. To the extent this represented a
conflict in the evidence, it was the trial court’s prerogative to
resolve it. Lunt v. Lance, 2008 UT App 192, ¶ 19, 186 P.3d 978(“[W]e may not substitute our judgment for that of the trial court
as trial courts are in a better position to weigh conflicting
evidence and evaluate the credibility of witness testimony.”).
¶32 As a result, we are not persuaded that the trial court’s
factual findings cannot support its legal conclusion that the
Judds’ use of the Driveway for access purposes was neither
initially nor subsequently permissive. Rather, the court’s
findings support the conclusion that the Judds’ use was not the
result of a special relationship, such as use by consent or license,
between the two parties. See Jacob v. Bate, 2015 UT App 206,
¶¶ 21–22, 358 P.3d 346 (explaining that the presumption of
permissive use “applies to cases where there is evidence of a
special relationship,” such as where there is consent or license to
use). And more to the point, the court’s findings also
demonstrate that the court rejected the Bowens’ characterization
of the Judds’ use as permissive as well as the evidence that may
have conflicted with that conclusion. See Homer v. Smith, 866 P.2d
622, 627 (Utah Ct. App. 1993). Thus, we are unpersuaded that the
20140285-CA 16 2017 UT App 56Judd v. Bowen
trial court erred when it determined that the Judds’ use of the
Driveway for access purposes was adverse. 4
¶33 In sum, we conclude that the Bowens have not
demonstrated that the trial court erred in concluding that the
Judds had established a prescriptive right to use the Driveway
for access purposes—in other words, that their use of the
Driveway for access was continuous, open and notorious, and
adverse for the requisite period of time. Accordingly, we affirm
the trial court’s conclusion that the Judds had “acquired a
prescriptive easement to use the Circular Driveway for
reasonable access . . . purposes.”
B. Parking
¶34 While we affirm the trial court’s conclusion that the Judds
have acquired a prescriptive easement to use the Driveway for
access to their cabin property, we reverse the trial court’s
conclusion that the Judds acquired an easement to use the
Driveway for parking purposes. The trial court concluded that
all the elements of a prescriptive easement had been met to
establish that the Judds had also acquired a parking easement on
the Driveway. It found that the Driveway is a “narrow” right-of-
way “wide enough for only one vehicle” and that, in the past,
users of both cabins “had parked on or near the Circular
Driveway” as well as “in [its] center portion.” The court then
ordered that the Bowens “should take no action that would
prohibit users of the Judd Cabin to continue their historic use of
the Circular Driveway for access and parking associated with
use of the Judd Cabin” and that both parties “should allow
appropriate parking that does not interfere with either’s use of
the cabins.”
4. To the extent that the Bowens have addressed “under a claim
of right” as a separate element in their arguments, we have
considered it in connection with our adversity analysis.
20140285-CA 17 2017 UT App 56Judd v. Bowen
¶35 The Bowens argue that a prescriptive parking right “is
outside the scope of a prescriptive easement.” They contend that
a prescriptive right for parking is inconsistent with the concept
of prescriptive easements because, in effect, it provides a “right
to exclude the [landowner, in this case, the Bowens] from using
their own property.” The Bowens compare the parking easement
sought by the Judds to the circumstances in Nyman v. Anchor
Dev., LLC, 2003 UT 27, 73 P.3d 357, arguing that the reasoning
employed by the Utah Supreme Court in Nyman compels the
conclusion that granting the Judds a prescriptive parking right
was an error as a matter of law. They also contend that we ought
to be persuaded by cases outside of Utah that have suggested a
parking easement is inconsistent with a prescriptive right and is
instead more akin to rights sought through adverse possession.
See Mehdizadeh v. Mincer, 54 Cal. Rptr. 2d 284, 289–92 (Cal Ct.
App. 1996); Cohen v. Quarry Estates LLC, 6 Pa. D. & C. 5th 388,
394–97 (Pa. Ct. Com. Pl. 2006).
¶36 While we need not decide here whether a parking
easement is categorically inconsistent with a prescriptive
easement as a matter of law, we agree with the Bowens that a
prescriptive parking right in these circumstances more closely
resembles the sort of rights typically associated with adverse
possession rather than the more limited easement rights
acquirable by prescription. Because the land at issue here is a
small area involving a narrow, one-car-wide driveway situated
“in close proximity to each cabin,” we conclude that granting the
Judds a prescriptive right to park in any location on the Bowens’
property that is on, around, or in the center of the Driveway
impermissibly excludes the Bowens from meaningful “use and
enjoyment” of the Driveway and the surrounding land at all
times that the Judds exercise their right to park on it.
1. Adverse Possession Versus Prescriptive Easement
¶37 The claims of prescriptive easement and adverse
possession are similar. Rotenberger v. Burghduff, 2007 SD 19, ¶ 12
& n.8, 729 N.W.2d 175, 179 n.8; see also 28A C.J.S. Easements § 23
20140285-CA 18 2017 UT App 56Judd v. Bowen
(2016) (explaining that “the elements necessary for a prescriptive
easement resemble those necessary for adverse possession”).
Both rely upon the claimant establishing that the kind of use
they have made of another’s land is open and sufficient to put
the landowner on notice of the use, that the use is hostile and
adverse, that the use is continuous, and that the use continued
for the requisite period. See generally Allred ex rel. Jensen v. Allred,
2008 UT 22, ¶ 17, 182 P.3d 337 (listing the elements required to
establish adverse possession); Lunt v. Lance, 2008 UT App 192,
¶ 18, 186 P.3d 978 (listing the elements for a prescriptive
easement claim); see also Utah Code Ann. §§ 78B-2-212 to -214
(LexisNexis 2012) (setting out the requirements for establishing a
claim of adverse possession). And importantly, in both contexts,
it has been recognized that a one-size-fits-all approach is not
appropriate to determining whether a particular use has
matured into either possession or a limited right of use. See
Allred, 2008 UT 22, ¶ 21 (noting that the possession of land
necessary to establish adverse possession “cannot be uniform in
every case” and that “there may be degrees in the exclusiveness
even of the exercise of ownership” (citation and internal
quotation marks omitted)); Valcarce v. Fitzgerald, 961 P.2d 305,
311 (Utah 1998) (plurality opinion) (noting that whether a
prescriptive easement exists is a “type of highly fact-dependent
question, with numerous potential fact patterns”).
¶38 While the elements of the claims are similar, however, the
character of the use and the rights available under each are not.
Adverse possession, as its name suggests, is an avenue by which
a claimant may acquire a possessory interest in the land at issue.
See 25 Am. Jur. 2d Easements & Licenses in Real Property § 39 (2016)
(explaining that “adverse possession deals with possession” and
“operates to divest title to the land at issue”); 3 Am. Jur. 2d
Adverse Possession § 2 (2016) (defining adverse possession “as the
open and notorious possession and occupation of real property
under an evident claim or color of right or, in other words, a
possession in opposition to the true title and record owner—a
possession commenced in wrong and maintained in right”). The
20140285-CA 19 2017 UT App 56Judd v. Bowen
successful adverse possession claimant gains the right to treat
the property at issue as an ownership interest and may
accordingly exercise the rights typical of landowners over the
property. See Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT
29, ¶ 25, 232 P.3d 999 (explaining that “[t]he uses a possessor in
land may make of the space within his possession are, in general,
undefined and are limited only by the rights of others” (citation
and internal quotation marks omitted)). This includes the right
to use and occupy the land to the exclusion of others. See id.(“[O]ne with a possessory interest has the right and intention to
exclude other members of society in general from any present
occupation of the land.” (citation and internal quotation marks
omitted)); cf. Hill v. Superior Prop. Mgmt. Servs., Inc., 2013 UT 60,
¶ 24, 321 P.3d 1054 (explaining that, among the rights associated
with those who have “the control of a landowner in actual
occupation of property” is the “right to exclude others from the
property altogether”).
¶39 The type of right acquired through adverse possession is
reflected in the type of use that must be made by the claimant
during the required period. Adverse possession claimants must
demonstrate that they have actually possessed the land. See
Allred, 2008 UT 22, ¶¶ 18–21 (explaining that “actual possession
and occupation” is a requirement of adverse possession). This
makes sense; a person should not be permitted to acquire an
ownership interest over the property of another unless they
have, during the required period, acted as though they actually
owned the land. However, the actual possession required to
prove the claim will not be the same in every case. Our supreme
court has recognized that “actual possession is a flexible term,
and the use of property necessary to establish it will vary with
the character of the property.” Allred, 2008 UT 22, ¶ 21 (internal
quotation marks omitted); see also 3 Am. Jur. 2d Adverse
Possession § 18 (2016) (“The determination of what acts amount
to actual possession of property . . . depends upon and varies
with the nature, character, and location of the property. In other
words, the type of possessory acts necessary to constitute actual
20140285-CA 20 2017 UT App 56Judd v. Bowen
possession . . . in one case may not be essential in another, due
to the character and location of the property.” (footnotes
omitted)). This generally means that the “claimant’s use of the
property . . . need be only the ordinary use an owner would
make of [the land]”—that is, it need only “comport[] with the
ordinary management of similar lands by their owners[.]” 3 Am.
Jur. 2d Adverse Possession § 19 (2016).
¶40 Ultimately, the “pivotal consideration” underlying the
actual possession of the land is that it be “of such character or
under such circumstances that the owner knows, or as a man of
ordinary prudence should know, that the land was being held as
his own by an adverse claimant.” Scott v. Hansen, 422 P.2d 525,
528–29 (Utah 1966); accord Cooper v. Carter Oil Co., 316 P.2d 320,
323 (Utah 1957) (“It is to be kept in mind that the primary reason
we are concerned with the nature of the defendant’s possession
is for the purpose of determining what notice it would give to
the owners and to the world that he claimed ownership of the
property.”). In this regard, our courts have found sufficient the
actual possession from a variety of uses ranging from physical
occupation of the land through construction of permanent
structures and improvements to exclusive occupation of grazing
land for three weeks every year. See, e.g., Falconaero Enter., Inc. v.
Valley Inv. Co., 395 P.2d 915, 916 (Utah 1964) (holding that the
claimant had established adverse possession where the claimant
had enclosed the land with an electric fence, built improvements
and created an artificial lake on the land, grazed the land, and
conducted a commercial enterprise on the land for seven
consecutive years); Cooper, 316 P.2d at 323–24 (holding that a
claimant’s possession of the property for grazing purposes was
sufficient to establish his right to the land through adverse
possession even though the claimant actually occupied the land
only “for a period of about three weeks each year,” where “the
property in question was unfenced grazing land” and the
claimant used it each year “until all the feed was grazed off”).
20140285-CA 21 2017 UT App 56Judd v. Bowen
¶41 A prescriptive easement claimant, on the other hand, does
not need to show actual possession or occupation of the land to
acquire the right. This is because prescriptive easements are
nonpossessory interests—the right acquired by the successful
easement claimant is not one of possession or occupation. See
Alliant Techsystems, Inc. v. Salt Lake County Board of Equalization,
2012 UT 4, ¶ 22 n.26, 270 P.3d 441 (explaining that “an easement
is a nonpossessory interest in land owned by another person”);
see also Restatement (First) of Property: Easements Introductory
Note (1944) (“The presence or absence of the privilege of
exclusive occupation marks the dividing line between
possessory and nonpossessory interests.”). An easement is an
incorporeal right. See Clawson v. Wallace, 52 P. 9, 10–11 (Utah
1898) (explaining that an easement “is incorporeal” and that it is
a right “incapable of possession or occupancy”); 28A C.J.S.
Easements § 5 (2016) (explaining that one of the “essential
qualities of easements” is that “they are incorporeal” rights
“imposed on corporeal property”). It is a property interest that
consists of the privilege to merely use—rather than occupy or
possess—the land of another for a circumscribed, limited
purpose. See Alliant Techsystems, 2012 UT 4, ¶ 22 n.26 (explaining
that an easement consists of “the right to use the land”); Nyman
v. Anchor Dev., LLC, 2003 UT 27, ¶ 18, 73 P.3d 357 (“[T]he term
‘use’ implies an inherent distinction in the property rights
conferred by an easement, on the one hand, and outright
ownership, on the other.”). “A prescriptive easement does not
result in ownership, but allows only use of property belonging
to another for a limited purpose,” Nyman, 2003 UT 27, ¶ 18
(citation and internal quotation marks omitted), one “that is not
inconsistent with the general use of the property by the owner,”
25 Am. Jur. 2d Easements & Licenses § 1 (2016).
¶42 As a result, a successful prescriptive easement claimant
does not (and, in fact, cannot) gain the right to occupy or possess
the landowner’s property. Indeed, the claimed right to use may
not be “inconsistent with either the [landowner’s] ownership
interest or the general property right of the owner, or the general
20140285-CA 22 2017 UT App 56Judd v. Bowen
use of the property by the owner.” 28A C.J.S. Easements § 1 (2016)
(footnotes omitted). This means, in practical terms, that the
prescriptive easement itself may not be of such a character that,
when exercised, it operates to effectively divest the landowner of
his or her ownership rights in the property—that is, the
easement cannot “create the practical equivalent of an estate.”
See 28A C.J.S. Easements § 32 (2016) (explaining that a “party
must satisfy the elements of an adverse possession rather than a
prescriptive easement where an easement would create the
practical equivalent of an estate”). Rather, the rights of the
easement holder and the landowner must be capable of being
balanced so as to afford each the ability to “use and enjoy” the
rights attendant to use the property for a limited purpose on the
one hand and ownership on the other. See North Union Canal Co.
v. Newell, 550 P.2d 178, 179 (Utah 1976) (explaining that the
easement holder is entitled only to “have the right to use and
enjoy his easement to the fullest extent possible not inconsistent
with” the landowner’s rights while the landowner is entitled to
“have the use and enjoyment of his property to the highest
degree possible,” while accounting for the easement).
¶43 Determining the appropriate boundary between the
rights of a prescriptive easement holder and a landowner is not
an easy task. But a review of cases in which our courts have
awarded or affirmed awards of prescriptive easements suggests
that the balance has been struck by limiting the scope of a
prescriptive easement to the sort of transitory uses which place
relatively minimal burdens on the landowner’s own use of the
property. For example, most prescriptive easements consist of
one version or another of a right merely to pass over another’s
land, such as a right-of-way, for purposes related to access or
ingress and egress. See, e.g., Orton v. Carter, 970 P.2d 1254 (Utah
1998) (concluding that each party owned an easement over a
common lane for access purposes); Crane v. Crane, 683 P.2d 1062(Utah 1984) (affirming the award of an easement to a grazing
association to drive cattle over a limited area of a property twice
a year); Richards v. Pines Ranch, Inc., 559 P.2d 948, 948 (Utah 1977)
20140285-CA 23 2017 UT App 56Judd v. Bowen
(awarding the plaintiffs a prescriptive easement to cross over “a
rough road across defendant’s land”); Richins v. Struhs, 412 P.2d
314 (Utah 1966) (concluding that claimants had established a
prescriptive easement to use a common driveway and bridge
approaching the adjoining properties for access purposes);
Zollinger v. Frank, 175 P.2d 714 (Utah 1946) (affirming the
claimant’s right to use a strip of his neighbor’s land for access to
his land from a public road); Jacob v. Bate, 2015 UT App 206, ¶ 12,
358 P.3d 346 (affirming the trial court’s decision that the
claimants had established an easement “for ingress and egress”
of an alley adjacent to their commercial building “for proper
maintenance of the adjacent buildings” (internal quotation
marks omitted)); Lunt v. Lance, 2008 UT App 192, 186 P.3d 978(affirming the trial court’s award to easement claimant of right to
use a lane to access the rear of his property); Martinez v. Wells,
2004 UT App 43, 88 P.3d 343 (affirming a prescriptive easement
for claimants to use a historic dirt roadway for ingress and
egress purposes); Homer v. Smith, 866 P.2d 622 (Utah Ct. App.
1993) (affirming a prescriptive easement for the claimant’s use of
a right-of-way across the front and rear parking areas of an
adjacent landowner’s property to reach his building).
¶44 And we have been unable to find any case affirming the
establishment of a prescriptive easement where the right sought
involved more than a transitory, occasional intrusion on the
landowner’s property. Cf. Nyman, 2003 UT 27, ¶ 18 (noting that
“no prior Utah case recognize[s] a prescriptive easement right to
maintain a permanent structure on someone else’s property”).
Indeed, in Nyman, our supreme court reiterated the limited
character of the easement right. The plaintiff claimed a
prescriptive right to occupy a small portion of the landowner’s
property for an encroaching garage. Id. ¶ 17. Our supreme court
rejected the claimant’s argument that the small size of the
portion of the lot occupied by the garage made it legally
insignificant. Instead, it concluded that the “the garage’s
intrusion onto [the lot] is not so small as to be truly
inconsequential” and held that the plaintiff was “not entitled to a
20140285-CA 24 2017 UT App 56Judd v. Bowen
prescriptive easement because the property right that he claims
would effectively deprive [the landowner] of all rights to which,
as record owner, he is entitled.” Id. ¶ 18. It reasoned that “[a]
prescriptive easement . . . allows only use of property belonging
to another for a limited purpose” and that “[w]henever there is
ownership of property subject to an easement there is a
dichotomy of interests, both of which must be respected and
kept in balance.” Id. (citations and internal quotation marks
omitted). It determined that “a balance between the rights of the
fee title owner and a purported easement holder becomes
impossible where the latter asserts a right to permanent
exclusive occupancy of the fee title owner’s land.” Id.
¶45 In sum, then, the defining difference between adverse
possession and prescriptive easement is the character of the
interest sought—whether the interest may be characterized as
possessory or nonpossessory. If the character of the interest
sought is essentially possessory, it moves into the realm of
adverse possession, not prescriptive easement. We acknowledge
that the line between possession and use is not always easily
discernible. Cf. Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah
1998) (plurality opinion) (“The finding that an easement exists is
a conclusion of law. Such a finding is, however, the type of
highly fact-dependent question, with numerous potential fact
patterns, which accords the trial judge a broad measure of
discretion[.]”). Indeed, our courts have repeatedly recognized
that the particular circumstances of a case determine the
character of the use and, in the end, whether the property rights
sought by a claimant may be established. E.g., Allred ex rel. Jensen
v. Allred, 2008 UT 22, ¶ 21, 182 P.3d 337 (noting that the
possession necessary in adverse possession is “a flexible term”
and that “the use of property necessary to establish it will vary
with the character of the property”); Lunt v. Lance, 2008 UT App
192, ¶ 9, 186 P.3d 978 (noting that the conclusion that a
prescriptive easement exists, while a question of law, “is so fact-
dependent that trial courts are generally accorded ‘a broad
measure of discretion when applying the correct legal standard
20140285-CA 25 2017 UT App 56Judd v. Bowen
to the given set of facts’” (quoting Valcarce, 961 P.2d at 311)).
Nonetheless, the doctrines of prescriptive easement and adverse
possession each have their conceptual limits, as we have
discussed above, and it is helpful to visualize the uses that may
constitute possession or easement by prescription as falling
along a spectrum, with outright ownership on the one end and
very limited uses, such as passage twice a year over another’s
property, see Crane, 683 P.2d at 1064, 1068, on the other. The
question before us is where on that spectrum the right the Judds
sought fell and ultimately whether that use was consistent, as a
matter of law, with the nature of the right asserted. See Valcarce,
961 P.2d at 311 (clarifying that we afford significant discretion to
the trial judge in making the finding that an easement has been
established when the trial judge “appl[ies] the correct legal
standard”).
¶46 Accordingly, for us to determine if the parking right
sought in this case is consistent with the concept of prescriptive
easement, we must determine whether, under the particular
circumstances, the character of the parking right sought was
more similar to possession or transitory use, keeping in mind
that, as discussed, an easement by prescription may not intrude
so far into the landowner’s rights so as to effectively deprive him
or her of meaningful exercise of either use or ownership of the
property at issue. See Nyman v. Anchor Dev., LLC, 2003 UT 27,
¶ 18, 73 P.3d 357.
2. The Parking Right
¶47 The trial court awarded the Judds a prescriptive easement
to park on the Bowens’ property according to their “historic
use,” which it found included parking “on or near the Circular
Driveway” as well as “in the center portion” of the Driveway. In
other words, the court did not limit parking to the track of the
Driveway itself. Rather, the court established in favor of the
Judds a right to park on, around, or in the center of a narrow
driveway situated on a “small area,” which currently “is wide
enough for only one vehicle,” “in close proximity to each cabin,”
20140285-CA 26 2017 UT App 56Judd v. Bowen
where historic use has required the parties to “cooperate in a
neighborly and amicable fashion” to accommodate both parties’
needs. We conclude that the right to park in favor of the Judds
intrudes too far into the Bowens’ ownership rights to fit within
the limited scope of a prescriptive easement. In particular,
because the Judds sought to establish a right to park on
essentially a first-come, first-served basis, where their own
parking may continue open-endedly and their right to park may
not be prevented or interrupted by the Bowens, we conclude
that the right sought is not limited to mere use but extends
beyond the concept of an easement and into the realm of
occupation and possession.
¶48 To begin with, the trial court found that there is very
limited land available on or immediately adjacent to the
Driveway, that the parties had historically parked all around
and in the center of the Driveway, and that the parties have had
to accommodate each other’s parking use. These findings were
corroborated at trial by evidence that the parties’ need for the
land overlapped; the Bowens and the Judds testified that there
were times when the Bowens requested that the Judds move a
parked vehicle that was impeding Bowen use and that
occasionally the Judds had to “work around” times that a Bowen
user was parked on the Driveway upon their arrival. Judd users
also testified that they would park anywhere there was space on
or around the Driveway when they arrived, which included the
available land on, in the center of, and around the Driveway’s
track. In other words, given the limited available land, the
parties’ need for parking at times overlapped and brought them
into competition for the limited space available, which not only
required accommodation but seemed to extend at times to a
first-come, first-served occupation.
¶49 As a consequence, the parking right sought by the Judds
more closely resembles occupation and possession, because it
permits the Judds to physically exclude and prevent the Bowens
from using a portion of their property for the indeterminate time
20140285-CA 27 2017 UT App 56Judd v. Bowen
during which the Judds occupy it. It also requires the Bowens
during times of Judd occupation to cede to the Judds their own
competing right as the landowner to use the implicated land in
any way, even in the same manner as the Judds. See Cohen v.
Quarry Estates LLC, 6 Pa. D. & C. 5th 388, 397 (Pa. Ct. Com. Pl.
2006) (explaining that the plaintiffs’ claim for an easement to
park on the landowner’s property was “in actuality a claim for
adverse possession of the [landowner’s] property,” because the
plaintiffs were requesting the court “to prevent [the
landowner] . . . from exercising its rights to the property”); 28A
C.J.S. Easements § 4 (2016) (“An easement is a right to use the
land burdened by the easement rather than a right to occupy and
possess the land as does an estate owner.”). The Judds sought
the right to park either on or adjacent to the Driveway on the
Bowens’ property without limit as to time frame or location
within the affected property, essentially on a first-come, first-
served basis, without interruption or prevention by the Bowens.
But such a right gives the Judds the ability to wholly exclude the
Bowens from that portion of the already limited land available
for the Bowens’ own parking, access, and general enjoyment as
owners, so long as the Judds occupy the space before the Bowens
do and for as long as their stay at the Judd cabin may last. The
only constraint on the Judds’ use, other than the court’s
admonition to refrain from generally blocking and interfering
with the Bowens’ use of their own cabin, appears to be the
practical limits that come from the fact that Judd users are not
necessarily in residence on a permanent basis and a Bowen user
may be there first. Compare Nyman, 2003 UT 27, ¶ 18 (explaining
that physical occupation is inconsistent with the limited use
permitted through prescriptive easements), with Crane v. Crane,
683 P.2d 1062, 1068 (Utah 1984) (affirming a prescriptive right for
grazing association claimants to pass over a portion of the
landowner’s property twice a year as part of a cattle drive).
¶50 We acknowledge that intermittent parking is a more
limited intrusion than, for example, the permanent structure in
Nyman. But here the property at issue has very limited space
20140285-CA 28 2017 UT App 56Judd v. Bowen
available for parking, and the court’s findings and record
evidence portray a history of overlapping demand for use of the
affected property by both the Judds and the Bowens, which
would inevitably continue under the court’s easement
determination. Indeed, a prescriptive parking right in favor of
the Judds essentially permits them to exclude the landowner
from the same property during the period of occupation, a
period seemingly limited only by the Judds’ discretion as to the
timing and duration of their cabin stays. In these circumstances,
the parking right seems further along the spectrum toward
adverse possession than toward prescriptive easement, which
involves more limited and transitory uses than are present here.
See Nyman, 2003 UT 27, ¶ 18 (noting that even seemingly small
occupation intrusions are generally inconsistent with the rights
created by prescriptive easements).
¶51 Indeed, in light of the limited land available and the
parties’ competing needs, the prescriptive parking easement
awarded by the trial court seems to create a type of time-share
interest in the Driveway and the surrounding land that more
closely resembles a shared ownership interest in favor of the
Judds than the transitory use typical of an easement or right-of-
way. See South Ridge Homeowners’ Ass’n v. Brown, 2010 UT App
23, ¶ 3, 226 P.3d 758 (defining “timeshare” as a “‘joint ownership
or rental of a vacation lodging (such as a condominium) by
several persons with each occupying the premises in turn
for short periods’” (quoting Timeshare, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/timeshare) [https://
perma.cc/X3ZR-4BA2]; NTS Am. Jur. 2d Real Estate Time-Sharing
§ 1 (2016) (explaining that “time-sharing involves the division of
ownership of resort property into a number of fixed time periods
during which each purchaser has the exclusive right of use and
occupation”). In effect, the court’s order permits the Judds, as
with a timeshare, to treat the Driveway and surrounding
property as their own and to entirely exclude the Bowens from
use or occupation of that property for the duration of a
particular stay. See NTS Am. Jur. 2d Real Estate Time-Sharing § 1
20140285-CA 29 2017 UT App 56Judd v. Bowen
(2016); see also Alliant Techsystems, Inc. v. Salt Lake County Board of
Equalization, 2012 UT 4, ¶ 28, 270 P.3d 441 (defining “exclusive
possession” as a state where “the user or possessor must have
this right over a definite space for a definite time”); cf. Gillmor v.
Gillmor, 694 P.2d 1037, 1040 (Utah 1984) (defining “exclusive
use” in the context of cotenancy as “mean[ing] more than one
cotenant using the entire property; it requires either an act of
exclusion or use of such a nature that it necessarily prevents
another cotenant from exercising his rights in the property”).
The court’s order also grants the Judds a level of control over the
Driveway and the surrounding area more indicative of the
exclusivity inherent in a time-share interest than that in a
transitory use. See Alliant, 2012 UT 4, ¶ 28 (explaining that an
“example[] of the type of control needed for exclusive possession
[is] . . . the general power to admit or exclude others, including
the property owner, from any present occupation of the
property”). In particular, other than the admonition against
blocking and inappropriate interference with the Bowens’ use,
the order leaves it up to the Judds’ discretion to determine the
timing, duration, and location of a particular parking stay. Based
upon their historic parking patterns, the Judds apparently may
park at any location on, near, or in the center of the Driveway so
long as it is not already occupied by the Bowens. And the Judds’
arguments on appeal certainly imply that they have earned by
prescription the right to park and remain parked on the portions
of the Bowens’ land implicated by their historic use whenever
they choose and for whatever length of time they or their guests
choose, without interruption or prevention by the Bowens.
¶52 Further, even if the parking is itself only intermittent, the
parking right granted seems to require that the Driveway and
adjacent land be reserved for the Judds’ exclusive use for
whenever they may be in a position to occupy it. This excludes
the Bowens from the land in a way that is conceptually
inconsistent with the limited intrusions on the landowner’s
rights which are typical of a prescriptive easement. See id. This is
illustrated best by the trial court’s general admonition to the
20140285-CA 30 2017 UT App 56Judd v. Bowen
parties to cooperate to avoid conflict in the exercise of their
competing rights of occupation. The admonition to cooperate
indicates that both parties have a near-equal right to occupy
portions of the Driveway or the surrounding property for
parking purposes as co-owners would. See Coowner, Black’s Law
Dictionary (10th ed. 2014) (“Someone who is in concurrent
ownership, possession, and enjoyment of property with one or
more others,” such as a “tenant in common” or a “joint tenant”).
In other words, the admonition to cooperate seems to elevate the
Judds’ property interest to a level equivalent to the landowner’s
because it requires the Bowens not to interfere with the Judds’
right to occupy the property—whether the Driveway track itself
or the land near or at the center of it—at their will, subject only
to an obligation to cooperate that seems to be imposed equally
on both parties. Put another way, the parking right requires the
Bowens to preserve the entirety of the affected land for use by a
co-occupant with essentially equivalent rights. This burden
seems different in kind from the sort of minor accommodation
that might be necessary in the case of a prescriptive right-of-way,
where the landowner’s conceptual exclusion is limited only to
refraining from general use and enjoyment that unreasonably
restricts or interferes with the easement holder’s limited
privilege of use. 5 See McBride v. McBride, 581 P.2d 996, 997 (Utah
5. We also note that the parking right the Judds sought to
establish—one that permits them to park without interruption
by the Bowens—does not seem to be entirely consistent with the
evidence regarding the more recent parking patterns between
the parties. From the evidence presented at trial, it appears that
on the occasions when a Bowen user requested that a Judd user
move a parked vehicle to permit the Bowens’ own parking, the
Judd user complied (at least until the incident in 2008 that
seemed to spark this litigation, where a Judd user for the first
time refused to move a parked vehicle at the Bowens’ request).
See supra ¶¶ 4–5. But the trial court’s decision granted a parking
right to the Judds which now requires the Bowens to
(continued…)
20140285-CA 31 2017 UT App 56Judd v. Bowen
1978); North Union Canal Co. v. Newell, 550 P.2d 178, 179 (Utah
1976); see also Nyman v. Anchor Dev., LLC, 2003 UT 27, ¶ 18, 73
P.3d 357 (suggesting that the concept of a prescriptive easement
is inconsistent with a right of exclusive occupation); 28A C.J.S.
Easements § 1 (2016) (“An easement is the right to use the land of
another for a specific purpose that is not inconsistent with either
the other’s ownership interest or the general property right of
the owner, or the general use of the property by the owner.”
(footnotes omitted)). It also necessarily makes impossible a
balancing between the landowner’s right to use and enjoy his
property to the “highest degree possible” against an easement
holder’s right to enjoy only his easement to the “fullest extent
possible not inconsistent with the rights of the fee owner.” See
Newell, 550 P.2d at 179. If the easement holder’s rights are on a
level near-equal to the landowner’s, they are directly competing
with the landowner’s rights, and striking the proper balance
between the interests of the parties cannot be accomplished. Cf.
Nyman, 2003 UT 27, ¶ 18 (noting that “[m]aintaining . . . a
balance between the rights of the fee title owner and a purported
easement holder becomes impossible where the latter asserts a
right to permanent exclusive occupancy of the fee title owner’s
land”).
¶53 In this regard, as urged by the Bowens, we find the
court’s reasoning in Cohen v. Quarry Estates LLC, 6 Pa. D. & C. 5th
388 (Pa. Ct. Com. Pl. 2006), to be persuasive. In Cohen, the
plaintiffs were several homeowners who claimed that they had
established an easement to park in a lot located to the rear of
their residential street. Id. at 389. The court determined that the
(…continued)
accommodate the Judds’ parking in a way that is more
consistent with joint ownership than with the more limited
concept of a prescriptive easement and seems to depart from the
balance the parties themselves seemed to observe, at least in
more recent times.
20140285-CA 32 2017 UT App 56Judd v. Bowen
various plaintiffs had not proven their prescriptive right with
“clear and positive” evidence, and therefore they were unable to
establish that they and their predecessors had parked on the lot
for the required twenty-one-year period or that their use was
adverse. Id. at 394–97. The court went on to explain, however,
that even if the evidence had established that the plaintiffs’ use
met the required elements, their request for a prescriptive
easement to park on the defendants’ property was “in actuality a
claim for adverse possession of the defendant’s property.” Id. at
397. The court explained that “[b]y claiming that they have
established their right to park on the lot, plaintiffs are in effect
asking for a court to prevent defendant, the property owner,
from exercising its rights to the property,” which included the
right to build on and improve it, as the landowner desired to do.
Id. The court then compared a prescriptive easement to adverse
possession, stating that a “prescriptive easement differs from
adverse possession in that with an easement the claimant has
made some use of the owner’s land, while adverse possession
requires exclusivity and possession or occupation.” Id. The court
found that the plaintiffs had not asserted “that they used the
property in question to the exclusion of the owner,” and it
ultimately determined that the plaintiffs “are not entitled to
exclusive possession of the lot without establishing that they
have met the requirements for a claim of adverse possession.” Id.Similarly, in the circumstances here involving limited land
inherently subject to the parties’ overlapping and competing
needs, the Judds’ parking claim is in essence a claim to prevent
the Bowens from exercising the rights inherent in their
ownership, such as the rights to exclude and generally use and
enjoy their property.
¶54 Finally, while the potential for conflict between the parties
does not alone preclude the establishment of a prescriptive
easement, the apparent impracticability in this case of managing
the competing needs and desires of both parties to park in the
same space given the physical constraints of the Driveway and
surrounding areas underscores how unsuitable the legal concept
20140285-CA 33 2017 UT App 56Judd v. Bowen
of a prescriptive parking easement is to the circumstances here.
Significantly, the parties themselves have struggled to find a
workable accommodation that would allow both sides to
amicably use the Driveway for reasonable access and parking.
They returned to the trial court to resolve recurring disputes,
which resulted in ever greater constraints on the Bowens’ use of
a significant portion of their property, but even those constraints
apparently have not managed to fully resolve the conflicts
despite the court’s best efforts. In essence, the intractability of the
continuing conflicts between the parties arises from the attempt
to impose a parking right that seems inherently incompatible
with the Bowens’ ownership rights in the underlying land and
therefore beyond the proper scope of a prescriptive easement.
¶55 In sum, the rights inhering in the trial court’s awarding of
a parking easement in favor of the Judds effectively elevate the
Judds’ interest to one that more closely resembles a possessory
interest rather than a simple right of temporary use. In
particular, the parking right appears to grant the Judds a right to
exclude both physically and conceptually the Bowens from use
or enjoyment of the property at issue—a right that is typically
only associated with possession. Cf. Hill v. Superior Prop. Mgmt.
Servs., Inc., 2013 UT 60, ¶ 24, 321 P.3d 1054 (explaining that,
among the rights associated with those who have “the control of
a landowner in actual occupation of property,” is “the right to
exclude others from the property altogether”). The Judds’
parking right therefore seems to create an imbalance in the
proper weighing of interests between the two parties. See Newell,
550 P.2d at 179 (“Whenever there is ownership of property
subject to an easement there is a dichotomy of interests, both of
which must be respected and kept in balance.”). As a result, we
conclude that the trial court erred when it granted the Judds a
prescriptive easement to park on, in the center of, and
immediately around the Driveway.
¶56 Thus, the Judds may use the Driveway pursuant to the
access easement the trial court awarded below, and the Bowens
20140285-CA 34 2017 UT App 56Judd v. Bowen
must accommodate this use. But the Judds have not established
a right to a prescriptive easement to park on the Bowens’ land.
II. Scope of the Prescriptive Easement
¶57 The Bowens also argue that the trial court exceeded its
discretion regarding the scope of the easement it awarded.
Because we have concluded that the Judds are not entitled to a
parking easement, we address the question of scope only in
relation to the Judds’ prescriptive access easement.
¶58 “The general rule is that the extent of a prescriptive
easement is measured and limited by its historic use during the
prescriptive period.” Valcarce v. Fitzgerald, 961 P.2d 305, 312
(Utah 1998) (plurality opinion); accord Kunzler v. O’Dell, 855 P.2d
270, 275 (Utah Ct. App. 1993). This means that the “purpose for
which the easement was acquired” limits both the extent of the
easement right granted as well as the physical boundaries of the
easement itself. Whitesides v. Green, 44 P. 1032, 1033 (Utah 1896);
accord Lunt v. Lance, 2008 UT App 192, ¶¶ 30–32, 186 P.3d 978.
The easement holder may not be granted a right “which places a
greater burden on the [landowner]” than during the prescriptive
period. Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148,
164 (Utah 1946)). The physical extent of the 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”).
And what is reasonably necessary to effectuate the prescriptive
right “must be determined from a consideration of the facts and
circumstances peculiar to the case.” Whitesides, 44 P. at 1033;
accord Lance, 2008 UT App 192, ¶¶ 30–32.
¶59 The Bowens argue that the trial court’s orders relating to
the access easement are inconsistent with the Judds’ historic use
and that the orders relating to the decorative border, the
walkway, and the foliage exceeded its discretion.
20140285-CA 35 2017 UT App 56Judd v. Bowen
A. Access
¶60 In its order, the trial court ruled that the Judds had
“proven their entitlement to a Prescriptive Easement for use of
the Circular Driveway” and that the Judds and their visitors
“hold a Prescriptive Easement to use the Circular Driveway for
reasonable access . . . purposes associated with their usage of the
Judd Property.” In the same ruling, the court ordered that
“[b]oth parties are . . . to refrain from blocking any users of the
Judd Property and the Bowen property from ingress and egress
on the Circular Driveway.” The Bowens contend that these
orders are inconsistent with the evidence presented at trial,
which they characterize as indicating that the Judds used the
Driveway only for access when the Bowens were not already
parked on it and that, in recent years at least, the Bowens had
“interrupted the Judds’ use of the driveway whenever the Judds’
use conflicted with their own,” not the other way around.
Accordingly, the Bowens argue that “at most, the Judds’
easement is limited to using the Bowens’ driveway for access to
the Judd cabin when it does not interfere with the Bowens’ use.”
¶61 We disagree. Rather than address the scope of permissible
use of the easement, the Bowens’ argument seems to implicate
the court’s legal conclusion that the Judds’ use of the Driveway
for access purposes met the prescriptive easement element that
the prior use had been continuous. But, as we explained above,
supra ¶ 21, although there was some evidence that some Judd
users on rare occasions were unable to use the Driveway for
access purposes because a Bowen user was parked on it, there
were other Judd users who testified that they used the Driveway
for access every time they had need to. This was a conflict in the
evidence the trial court was entitled to resolve, and the Bowens
have not demonstrated that the trial court’s findings that
support its continuity conclusion were inadequate or clearly
erroneous. And, as explained, the contentions regarding the
Bowens’ interruption of the Judds’ parking do not implicate the
access right, which is the only prescriptive easement the Judds
20140285-CA 36 2017 UT App 56Judd v. Bowen
have acquired. Furthermore, because we have concluded that
the Judds are not entitled to a parking easement, the only party
whose use of the Driveway for access is at risk of hindrance by
parking is the Judds, not the Bowens. The Judds are entitled only
to use the Driveway as a temporary passage to reach and exit
their property as they have in the past, which may, at times,
require some accommodation on the part of the Bowens to
ensure that the Judds are able to use and enjoy their access
easement “to the fullest extent possible not inconsistent with the
rights of [the Bowens].” See North Union Canal Co. v. Newell, 550
P.2d 178, 179 (Utah 1976).
¶62 As discussed above, prescriptive rights require a balance
between the right of ownership and the limited use right, with
respect to both. Id. The Bowens are therefore entitled to use and
enjoy the Driveway “to the highest degree possible, not
inconsistent with the easement.” See id. This includes being able
to park on the Driveway, but with the understanding that they
will need to do so in a manner that still permits the Judds to
reasonably exercise their right to use it for access, something that
may, for example, require them to move parked vehicles on
request when they block the Judds’ access or otherwise make
arrangements to ensure that they do not render the Judds unable
to make reasonable use of their access easement. See id. at 180(noting that an easement holder is entitled to “have the right to
use and enjoy his easement to the fullest extent possible not
inconsistent with the rights of the fee owner”); see also id.(concluding that a landowner does not need to obtain
permission from the easement holder for installing certain
improvements on land subject to an easement because the
landowner may “use their property in any manner they please
so long as they do not unreasonably restrict or interfere with the
proper use of the plaintiff’s easement”); Utah-Idaho Sugar Co. v.
Stevenson, 97 P. 26, 27 (Utah 1908) (concluding that the easement
holder may be subject to some reasonable inconvenience and
delay in exercising his right of way, such as having to “unhook
the team [of horses] on one side of the fence, drive the team
20140285-CA 37 2017 UT App 56Judd v. Bowen
through the gateway, and rehitch it to the rope on the other side
of the [two] fence[s]” installed by the landowner on the land
subject to an easement located half a mile apart).
B. Foliage, Walkway, and Border
¶63 The trial court found that in the past there had been “less
vegetation” on the Driveway and that while witnesses “testified
that cars historically parked in the center portion” of the
Driveway, users were unable to park in the center any longer. It
also found that, in addition to the Driveway, the Bowens once
had a private driveway they used for parking “that went up the
western side of the cabin,” but that “[a]t some point, the Bowen
Cabin users changed the . . . [private] driveway to a walkway
with decorative rock outlining the path.” At some point, the
Bowens apparently lined the Driveway with a decorative rock
border, as well. In the January 2015 order, the trial court clarified
and added to its March 2014 order in response to disputes that
had arisen between the parties about the scope of the Judds’
prescriptive rights, mostly related to parking issues. The court
ordered (1) that the Bowens “remove the decorative rock border
from the circular driveway and . . . restore the walkway adjacent
to the Bowen cabin to a parking spot as was used historically
prior to 2008,” even though that decorative border was “several
feet back from the edge of [the Driveway]”; and (2) that the
Bowens remove “recently-grown foliage,” apparently referring
to foliage and trees that had grown within the circle
encompassed by the Driveway after the 1950s to 1970s when
there had been “very little tree growth in [the Driveway].”
¶64 The Bowens argue that the orders relating to the
decorative border, the walkway, and the foliage “place
additional, and equally impermissible, burdens on the Bowens’
property” because those orders “all granted the Judds rights in
excess of those they enjoyed during the prescriptive period” and
“prescriptive rights cannot include any right to prevent the
Bowens from marking the outer boundary of the driveway on
their own property” or “the right to force the Bowens to use a
20140285-CA 38 2017 UT App 56Judd v. Bowen
particular part of their own property”—the rock-bordered
walkway—“as a parking spot.” They also argue that “the Judds
cannot enjoy any prescriptive rights in keeping the vegetation on
the Bowens’ property in the same condition it was in the 1950s
and 1970s.”
¶65 We agree. These orders are inconsistent with the usage
that forms the basis of the Judds’ prescriptive right—using the
Driveway for ingress and egress purposes. Rather, the court’s
orders seem to be focused on resolving disputes over parking;
neither the walkway nor the decorative border impedes the
Judds from using the Driveway for access purposes. Indeed, the
trial court made no findings or conclusions to suggest that
removal of the decorative rock border or the walkway
improvements was reasonably necessary to permit the Judds to
use the Driveway for access. See Big Cottonwood Tanner Ditch Co.
v. Moyle, 174 P.2d 148, 158 (Utah 1946) (stating that the standard
for establishing the dimensions of a prescriptive easement is that
which is of “reasonable necessity” to permit the limited use
acquired as a prescriptive right). And the Judds have not
directed us to any evidence that demonstrates such limitations
would be reasonably necessary to enable their limited rights of
access to their cabin. Indeed, it is difficult to see how they could
be, considering that the evidence describes both the rock border
and the walkway as outside of the Driveway’s physical track.
Further, while the conversion of the Bowens’ prior cabin-side
parking strip to a walkway reduced the Bowens’ own dedicated
parking, with the result that Bowen cabin users would more
likely use the Driveway for parking, the Bowens’ ownership
rights permit them to park on the Driveway so long as they do
not unreasonably interfere with the Judds’ right of access to their
property. See Newell, 550 P.2d at 179 (“[I]t is to be realized that
the owner of the fee title, because of his general ownership,
should have the use and enjoyment of his property to the highest
degree possible, not inconsistent with the easement.”). In other
words, the Bowens may choose to retain the walkway and park
on the Driveway under their rights of “general ownership,” so
20140285-CA 39 2017 UT App 56Judd v. Bowen
long as they do not unreasonably interfere with the Judds’
ability to use the Driveway to access their property, as we have
discussed above.
¶66 Finally, the trial court’s order that the foliage in the
vicinity of the Driveway, including within the circle, be returned
to its 1950s to 1970s state seems largely directed at freeing up
additional parking area for the Judds’ use consistent with the
court’s declaration of a parking easement in their favor. Because
we have determined that no prescriptive parking easement
arose, there is no further basis for this order to the extent it
implicates parking concerns. And in this regard, it is not
apparent to what extent, if any, the court’s foliage order may
have been concerned with the Judds’ ability to use their right of
access over the Driveway. There does not seem to be any
evidence, for example, that since the 1970s the growth of foliage
has prevented the Judds from using the Driveway to access their
property; to the contrary, testimony at trial established that both
the Judds and the Bowens have continued to use the Driveway
for access purposes since the 1970s, even with the increased
foliage. Nevertheless, given the way that conflict over the
common use of the Driveway has evolved in more recent
history, it would not be unreasonable for the trial court to
impose some restraints on the growth of foliage aimed at
preventing interference with the Judds’ ability to drive over the
Driveway for purposes of reasonable access to their property, for
example, in order to prevent encroaching foliage that might
damage passing vehicles or interfere with their reasonable
passage. See Lunt v. Lance, 2008 UT App 192, ¶ 31, 186 P.3d 978(noting that the dimensions of a prescriptive right are not limited
to a historic beaten path, but are instead dictated by reasonable
necessity). Rather, some requirement that the Bowens maintain
the foliage bordering the Driveway so that it does not
unreasonably interfere with safe passage could be a basis for
resolution, but we will leave the details to the trial court, which
is better suited to resolve them than we are. Such an order
should be designed to preserve the Judds’ limited right to use
20140285-CA 40 2017 UT App 56Judd v. Bowen
the Driveway for access and balance that limited use against the
Bowens’ superior ownership right.
¶67 Accordingly, we conclude that the trial court exceeded its
discretion in ordering restoration of the walkway on the Bowens’
property to a driveway and removal of any portion of the
decorative border or any foliage that does not impede the Judds’
reasonable access over the Driveway.
CONCLUSION
¶68 We affirm the trial court’s award to the Judds of a
prescriptive easement over the Driveway for the purpose of
access to their cabin. As the trial court ordered, the Bowens must
refrain from actions that would unreasonably interfere with that
easement. However, we reverse the court’s determination that
the Judds are entitled to a prescriptive easement for parking on
the Bowens’ property. Under the circumstances of this case, we
conclude that the doctrine of prescriptive easement is
inconsistent with the parking right asserted by the Judds and
with the Bowens’ ownership rights.
¶69 We also vacate the court’s orders that the Bowens remove
the decorative rock border and the walkway as those orders do
not appear to be reasonably necessary to the Judds’ enjoyment of
their access easement. Finally, we vacate the court’s order to cut
back the foliage to the growth consistent from the 1950s to 1970s.
Rather, the Bowens must keep the foliage trimmed so that it does
not unreasonably interfere with the Judds’ access easement.
¶70 We recognize that there may be some need to further
address in the trial court the details of the parties’ interactions to
take into account the practical implications of our decision, and
we remand the case for further proceedings consistent with this
opinion.
20140285-CA 41 2017 UT App 56Judd v. Bowen
ORME, Judge (concurring in part and dissenting in part):
¶71 I concur in the court's opinion except for its treatment of
parking. Under the circumstances, the Judds’ right to park on the
Driveway was not akin to a possessory or ownership interest in
land. It was, instead, a transitory, occasional intrusion. At least
that is what the evidence established, and to the extent the trial
court gave the Judds a more expanded parking right than was
warranted by their historical usage—i.e., the right to park on the
Driveway so long as it did not impede the Bowens’ use of the
Driveway and to move any obstructing vehicles upon the
Bowens’ request—the court must amend its decree accordingly.
¶72 By the same token, in my view the trial court should
revisit its subsequent decree and scale back its directives to the
Bowens so that the decree requires only the least intrusive
restrictions necessary to preserve the limited parking right
enjoyed over the decades by the Judds. This surely will not
include the mandate to return the Bowens’ decorative walkway
to its prior condition as a parking spot reserved for the Bowens’
use, but it may well include limited directions vis-à-vis foliage
and the rock wall if those effectively deprive the Judds of their
historical ability to park on the Driveway in such a way as to
minimize the Bowens’ need to ask them to move.
20140285-CA 42 2017 UT App 56