Van Denburgh v. Sweeney Land Co. ( 2013 )

2013 UT App 265_________________________________________________________
THE UTAH COURT OF APPEALS
DAVID S. VAN DENBURGH ,
Plaintiff and Appellant,
v.
SWEENEY LAND COMPANY AND PARK CITY II, LLC,
Defendants, Third-party Plaintiffs, and Appellees,
Memorandum Decision
No. 20120030-CA
Filed November 7, 2013
Third District Court, Silver Summit Department
The Honorable Keith A. Kelly
No. 100500569
Jason D. Boren, Melanie J. Vartabedian, and
Tesia N. Stanley, Attorneys for Appellant
Paul D. Veasy and David K. Heinhold, Attorneys
for Appellee Sweeney Land Company
J. Craig Smith and Matthew E. Jensen, Attorneys
for Appellee Park City II, LLC
JUDGE JAMES Z. DAVIS authored this Memorandum Decision, in
which JUDGES CAROLYN B. MC HUGH and STEPHEN L. ROTH
concurred.
DAVIS, Judge:
¶1 David S. Van Denburgh, individually and in his capacity as
the trustee of the David S. Van Denburgh Revocable Living Trust,
appeal the trial court’s summary judgment ruling rejecting his claim
to a prescriptive easement over a strip of land located on property
jointly owned by Sweeney Land Company and Park City II, LLC
(collectively, Sweeney). We affirm.
Van Denburgh v. Sweeney Land
¶2 Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Utah R. Civ. P. 56(c). We review a
trial court’s grant of summary judgment for correctness, affording
no deference to the trial court’s legal conclusions. Basic Research,
LLC v. Admiral Ins. Co., 2013 UT 6, ¶ 5, 297 P.3d 578.
¶3 “[T]he question of whether or not an easement exists is a
conclusion of law.” Potter v. Chadaz, 1999 UT App 95, ¶ 7, 977 P.2d
533. To establish a prescriptive easement, a party must show, “by
clear and convincing evidence,” Buckley v. Cox, 247 P.2d 277, 279
(Utah 1952), that its use of the area in question has been “(1) open,
(2) notorious, (3) adverse, and (4) continuous for at least 20 years,”
Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990). “[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.” Valcarce v. Fitzgerald, 961 P.2d
305, 311 (Utah 1998). The burden then shifts to the landowner
opposing the easement to “establish[] that the use was initially
permissive.” Id. at 311–12; cf. Buckley, 247 P.2d at 279; Harkness v.
Woodmansee, 26 P. 291, 293 (Utah 1891) (“Where a person opens a
way for the use of his own premises, and another person uses it also
without causing damage, the presumption is, in the absence of
evidence to the contrary, th[at] such use by the latter was
permissive, and not under a claim of right.”). Additionally, “[t]he
use by individual persons in common with the public generally is
regarded as permissive, and by such common use no individual
person can acquire a right by prescription as against the owner of
the fee.” Thurman v. Byram, 626 P.2d 447, 450 (Utah 1981) (citation
and internal quotation marks omitted); accord Kohler v. Martin, 916
P.2d 910, 914 (Utah Ct. App. 1996).
¶4 Sweeney owns approximately sixty-four acres of “open,
unenclosed, undeveloped mountain terrain” (the Sweeney
Property). Sweeney has permitted the public to access its property
20120030-CA 2 2013 UT App 265Van Denburgh v. Sweeney Land
“for recreational use . . . since 1979” and has constructed
“switchback trails” on the property to facilitate the public’s
recreational access. Sweeney granted the Greater Park City
Company an express, non-exclusive easement over a specified
portion of its sixty-four acre parcel that allows Greater Park City
Company to maintain and operate the Creole Ski Run at Park City
Mountain Resort (the Ski Lift Easement). The Ski Lift Easement
bisects the Sweeney Property. Van Denburgh’s vacation home abuts
the Sweeney Property near the Creole Ski Run. His prescriptive
easement claim is “over a small portion of the Sweeney Property
extending from the Van Denburgh Property to the Creole Ski Run”
(the Path).
¶5 Here, the trial court assumed, without deciding, that Van
Denburgh’s use of the Path “was open and notorious for a
continuous period of twenty years, and therefore, presumptively
adverse” but determined that Sweeney defeated the presumption
of adverse use with evidence that Van Denburgh’s use was
permissive.1 Sweeney contended that it has permitted the public to
use the entirety of its property since 1979 and, at the very latest,
1. Van Denburgh also argues that the trial court was required to
address the elements of a prescriptive easement claim in a
particular order—first determining whether the use was open and
notorious for a continuous period of twenty years before analyzing
the adverse versus permissive element. We disagree that the
elements of a prescriptive easement claim need to be addressed in
a particular order. Each element of a prescriptive easement claim
is required; failure to satisfy any one of the four elements is fatal to
a prescriptive easement claim. See Morris v. Blunt, 161 P. 1127, 1131
(Utah 1916) (explaining that under Utah law, “[t]he right by
prescription can only arise by adverse use and enjoyment under
claim of right uninterrupted and continuous for a period of 20
years” (emphasis added)); see also 68 Am. Jur. Proof of Facts 3d 239,
§ 13 (2002) (“In the absence of any of these elements, the claimant
cannot acquire an easement by prescription over the lands of
another.” (footnote omitted)).
20120030-CA 3 2013 UT App 265Van Denburgh v. Sweeney Land
since 1990 or 1991, when it constructed four miles of switchback
trails on the property and placed signs along various access points
of the property to inform the public that they were permitted to use
its land for recreational purposes (the Public License).2 Additionally,
Sweeney submitted deposition evidence from Dr. Patrick Sweeney
of Sweeney Land Company, characterizing the Public License as “a
goodwill public accommodation” that has been described as
permissive “in countless meetings, countless interviews on the
radio, countless TV interviews, [and] countless newspaper articles.”
Dr. Sweeney testified that the company’s “philosophy” since at least
1979 has been to be “very neighborly and let people use [the]
property generously to have fun,” which in practice has meant
allowing the public to access “every square foot of [the] property”
and even to bushwhack paths on the property, “as long as [the
paths] don’t become a big erosion problem” and people do not cut
down trees or install permanent fixtures along the paths like
sprinklers, signs, or lights. Sweeney also offered affidavit testimony
from two landowners whose properties are located near the Van
Denburgh property and are similarly adjacent to the Sweeney
Property. Like Van Denburgh, these landowners “accessed the
Sweeney Property directly from [their] backyard[s]” in order to use
the property—including the Creole Ski Run—for hiking, skiing,
biking, and other recreational purposes. These owners indicated
that they have “always” considered their “use of the Sweeney
Property [to be] with the permission of Sweeney Land as a
neighborly accommodation” based on the unenclosed nature of the
property, the fact that Sweeney had never attempted to prevent
them from using the property, and their observations of the general
public’s “extensive use” of the property over the years. Both
landowners indicated that Dr. Sweeney personally confirmed that
their access of the Sweeney Property from their backyards for
recreational purposes was permitted.
¶6 Van Denburgh argues that summary judgment was
inappropriate because he adequately disputed Sweeney’s evidence
2. The Path is not on or contiguous to the switchback trails.
20120030-CA 4 2013 UT App 265Van Denburgh v. Sweeney Land
of permissiveness. Van Denburgh relies on an overlay map and
county records to support his claim that Sweeney granted various
“easements to the Greater Park City Company for use by the
general public” that encompass “a majority of the Sweeney
Property” but not the portion of the property containing the Path,
which Van Denburgh calls the “Creole Development Site.”
Essentially, Van Denburgh draws the lines around the areas that
Sweeney, the trial court, and this decision refer to as the Public
License area and the Ski Lift Easement area differently and in a
manner that subdivides the Sweeney Property into additional
segments. Though Van Denburgh did not present any evidence that
Sweeney actually prevented the public from accessing the Path or
the Creole Ski Run (via the “Creole Development Site”), he
contends that the presence of a “CLOSED” sign and rope fencing
along part of the Creole Development Site, the reference in the
switchback signs informing people of the Public License to the trail
system, and the absence of any of those signs in the Creole
Development Site reasonably imply such a restriction. Van
Denburgh also relies on a letter Sweeney Land Company sent him
in 2009, which he contends proves, in Sweeney Land’s “own
words,” that the Path is not a part of the “public easement” that
Van Denburgh considers the Ski Lift Easement to grant.
Accordingly, Van Denburgh argues that the letter demonstrates
that his use of the Path was never permissive. Additionally, Van
Denburgh contends that the permissive nature of his use was also
disputed by evidence demonstrating that his use of the Path was
different from the public’s use and that he and his predecessors in
interest used the Path under a claim of right. See Harkness, 26 P. at
293.
¶7 The trial court rejected Van Denburgh’s categorization of the
Ski Lift Easement as a public easement and held that the easement
does not otherwise “contradict or dispute” Sweeney’s evidence that
Van Denburgh’s use was permissive. The court ultimately
determined that “[t]he Ski Lift Easement is . . . not related” to Van
Denburgh’s claim. We agree. The Ski Lift Easement involves
Sweeney Land Company and several other grantors each agreeing
20120030-CA 5 2013 UT App 265Van Denburgh v. Sweeney Land
to grant Greater Park City Company a non-exclusive easement to
“construct, maintain, operate, use, repair, replace, and relocate”
certain identified ski lift facilities and ski runs and the equipment,
signs, fencing, etc. associated therewith. Likewise, the “CLOSED”
sign and rope fencing Van Denburgh referenced were placed along
the boundaries of the Creole Ski Run, not the Path specifically. And
the sign and fencing do not indicate that the area was excluded
from the Public License. Rather, the sign and fencing along the ski
run direct skiers down the mountain in a manner that prevents
them from getting lost or hitting a dead-end.
¶8 Next, the letter Van Denburgh relies on was sent to him by
an attorney on behalf of Sweeney after “a representative of
Sweeney Land Company noticed that an individual apparently
employed by [Van Denburgh] was cutting a path leading from [Van
Denburgh’s] property into and trespassing on Sweeney . . .
Property.” The Sweeney representative also noticed a sprinkler
system and gate, the latter of which consisted of two wooden posts
with a chain strung between the two and a “No Trespassing” sign
hanging from the chain, both erected by Van Denburgh on Sweeney
land. The letter states,
To be clear, you have no legal right to trespass on
Sweeney Land Company property or place your
“gate” or sprinkling system on such property. This
includes the fact that you have no legal right to access the
ski trail easement running over the Sweeney Land
Company property, since the only way you can get to
the ski trail is to cross the Sweeney Land Company
property which is not subject to the easement.
(Emphasis added.) Van Denburgh contends that the letter,
particularly the emphasized text, differentiates the Ski Lift
Easement area from the Path and the Path from the Public License
area. He interprets this language as an admission by Sweeney that
the Ski Lift Easement area is not subject to the Public License and
20120030-CA 6 2013 UT App 265Van Denburgh v. Sweeney Land
that “Van Denburgh did not have and never [did have] permission
to use the [Path area].”
¶9 As discussed, the Ski Lift Easement is not a public easement,
is not properly subdivided in the manner Van Denburgh describes,
and has nothing to do with whether Van Denburgh’s use of the
Path was permissive or adverse. Accordingly, the trial court
properly disregarded the letter as evidence that the Ski Lift
Easement was exempt from the Public License, the relevance of
which is explained supra ¶ 7.
¶10 Similarly, the letter does not indicate that Van Denburgh
never had permission to access the Path as a member of the public
under the Public License.3 Rather, the letter correctly states that he
has no “legal right” to use the Path. Instead, his use is permissive
and subject to revocation at any time. Van Denburgh received the
letter shortly after a Sweeney representative discovered his
trespasses. The letter describes those trespasses and then explains
that Sweeney would nonetheless continue to permit Van Denburgh
to access its property via the Path, and even keep his gate and
sprinkler system in place, if Van Denburgh signed an agreement
acknowledging that his ongoing use is permissive and revocable
and indemnifying Sweeney, the ski resort, and other relevant
parties. Van Denburgh would not be permitted to continue using
the Path without signing such an agreement. As explained by Dr.
Sweeney in his deposition, “Mr. Van Denburgh has other options”
by which he can access skiing, such as “walking down the street,
walking up another way or driving down [to] the resort.” This
3. Interestingly, in his written response to the letter, Van Denburgh
was essentially apologetic, explaining that the Path area was weed
whacked for “fire suppression and safety reasons” and the gate
was erected to prevent skiers, some of whom have vandalized his
property and gotten into confrontations with him, from dead-
ending in his backyard. Van Denburgh did not mention his use of
the Path for recreational purposes, nor did he claim any right to do
so.
20120030-CA 7 2013 UT App 265Van Denburgh v. Sweeney Land
statement also reiterates the notion that Van Denburgh was still
permitted to use the Sweeney Property and the Ski Lift Easement
area but that he had no legally protectable right to do so.4
Moreover, that permissive use did not grant Van Denburgh the
right to make improvements on the Sweeney Property, particularly
in light of Dr. Sweeney’s concern here that the “hard
improvements” Van Denburgh had already made amounted to a
“violat[ion]” of the terms of the Ski Lift Easement that prohibit
Sweeney from installing “any type of hard improvements in the
open space.” Rather than inferring limitations on the permissive use
of the sixty-four acre property, the letter infers that such use could
even include some improvements, so long as the member of the
public acknowledged that Sweeney could revoke its permission to
use its property at any time.
¶11 Last, Van Denburgh contends that “in contrast to other areas
of the Sweeney Property,” the Path area “served no public purpose
because it merely led to Van Denburgh’s backyard” and “[t]he fact
that members of the public . . . occasionally [follow the Path] and
end up in Van Denburgh’s backyard does not support a finding that
Sweeney treats the [Path] the same as the [rest] of the Sweeney
Property.” He also asserts that his use of the Path is distinguishable
from the public’s use of the rest of Sweeney’s property in that he
cleared the area that constitutes the Path himself, rather than using
the hiking and biking paths that Sweeney built on the property for
the public’s enjoyment. We are not convinced that this assertion
actually distinguishes Van Denburgh’s recreational use of the Path
from the public’s recreational use of the Path or Sweeney’s property
as a whole. Sweeney presented evidence that the public was
welcome to access every part of its property and to bushwhack new
trails. In fact, Dr. Sweeney recognized that nearly “everybody”
abutting the Sweeney Property has created a path “to their own
4. “The most widely used definition” of the word “right,” “is an
interest or expectation guaranteed by law.” Bryan A. Garner,
Garner’s Dictionary of Legal Usage 787 (3d ed. 2011) (internal
quotation marks omitted).
20120030-CA 8 2013 UT App 265Van Denburgh v. Sweeney Land
homes on [Sweeney] property coming off the trails” and that
Sweeney does not “care as long as people don’t start putting
sprinklers on and signs on and lights on [their bushwhacked paths]
and cutting down trees or claiming [Sweeney’s] rights no longer
exist.” Indeed, two of Van Denburgh’s neighbors provided
affidavits supporting Dr. Sweeney’s testimony and relating his
assurances that the public had permission to travel from their yards
across Sweeney Property and to access the Creole Ski Run within
the Ski Lift Easement area.
¶12 Furthermore, the affidavits of Van Denburgh’s predecessors
in interest indicate that they had used the Path for access to
recreational activities like hiking, skiing, and dog walking, and had
done little more than maintain the Path’s accessibility by clearing
brush, weed whacking, etc., which is explicitly permitted by
Sweeney. Thus, it was Van Denburgh’s installation of the gate,
lights, and sprinklers that departed from the public’s use, which
happened too recently to establish a prescriptive easement—Van
Denburgh did not own the property until 2005, and in his
deposition, he stated that the gate was installed in July 2007.
Further, the influx of “off track skiers and other permitted users of
the Sweeney Property” that would end up in Van Denburgh’s
backyard, driving him to install a gate and a “No Trespassing” sign
along the Path, not only demonstrates that the Path was frequently
and regularly used by the recreating public but also negates Van
Denburgh’s claim that his and his predecessors’ recreational use of
the Path was somehow different from the uses permitted under the
Public License.5
5. Van Denburgh also argues that without Sweeney’s direct or
implied permission to use the Path, which Van Denburgh and his
predecessors claim to have never received, their use of the Path
was necessarily adverse and under a claim of right. Van Denburgh
contends that Sweeney’s construction of four miles of hiking trails
on its land, the signs Sweeney posted, and radio and TV interviews
informing the public of its Public License were not sufficient to
(continued...)
20120030-CA 9 2013 UT App 265Van Denburgh v. Sweeney Land
¶13 In conclusion, Van Denburgh fails to adequately dispute the
evidence supporting Sweeney’s position that the Path was subject
to the Public License, instead relying on unreasonable inferences he
has chosen to draw from otherwise undisputed facts. The
undisputed facts support the trial court’s conclusion that Van
Denburgh’s and his predecessors’ use of the Path was permissive,
thereby disposing of Van Denburgh’s claim to a prescriptive
easement. Affirmed.
5. (...continued)
directly or impliedly communicate that Sweeney’s Public License
extended to the public’s use of the Path in particular, especially
where the Path leads only to Van Denburgh’s backyard. This
assertion, however, is based on the assumption that members of the
public would not be interested in recreating along the Path or any
area of Sweeney’s property that borders private land, simply
because it leads only to private land. In any case, the argument fails
to distinguish Van Denburgh’s and his predecessors’ use of the
Path as adverse or inconsistent with the uses permitted under the
Public License for the requisite amount of time to support Van
Denburgh’s prescriptive easement claim. See Thurman v. Byram, 626
P.2d 447, 450 (Utah 1981); cf. Bass v. Salyer, 923 N.E.2d 961, 967–68
(Ind. Ct. App. 2010) (determining that “[h]aving used the public
easement for its intended purpose, the [plaintiffs] cannot
demonstrate that their use was at the same time under a claim of
right, exclusive, hostile, or adverse to the fee simple title”).
20120030-CA 10 2013 UT App 265