Clearwater Farms LLC v. Giles , 815 Utah Adv. Rep. 10 ( 2016 )

2016 UT App 126THE UTAH COURT OF APPEALS
CLEARWATER FARMS LLC AND
CLEARWATER HOLDINGS LLC,
Appellants,
v.
SHANE ROBERT GILES, BRANDI LYNN GILES,
JACOB JAY GILES, AND SHARON VICKIE GILES,
Appellees.
Opinion
No. 20140575-CA
Filed June 16, 2016
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 110400951
Cole S. Cannon, Austin J. Hepworth, Robert C.
Fillerup, Clark B. Fetzer, Gregory M. Simonsen, and
Collin R. Simonsen, Attorneys for Appellants
Leslie W. Slaugh, Attorney for Appellees
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
KATE A. TOOMEY and JUSTICE JOHN A. PEARCE concurred.1
ROTH, Judge:
¶1 Plaintiffs Clearwater Farms LLC and Clearwater
Holdings LLC (collectively, Clearwater) appeal the district
court’s ruling in favor of Shane Robert Giles and Brandi Lynn
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).
Clearwater Farms LLC v. Giles
Giles, individually and as co-trustees of the Shane Robert Giles
and Brandi Lynn Giles Family Trust; and Jacob Jay Giles and
Sharon Vickie Giles, individually and as co-trustees of the Giles
Family Trust (collectively, the Gileses). We conclude that the
district court did not err when it considered only historical use
to determine a road’s width. We also conclude that the court did
not err when it ruled that the Gileses did not obstruct or interfere
with Clearwater’s water rights. Accordingly, we affirm.
BACKGROUND2
¶2 Clearwater and the Gileses own adjacent parcels of land
near Lake Shore in an unincorporated area of Utah County. A
farm lane (the Road), which has been in existence since at least
the early twentieth century, runs from south to north and crosses
the Gileses’ land, paralleling the course of the Spanish Fork
River, before turning west and terminating in a dead end on
Clearwater’s property. In 1996, the Gileses purchased the
farmland. Approximately two years later, another individual
named Morley, Clearwater’s predecessor, purchased a twenty-
one-acre parcel of land directly to the north. The following year
the Gileses subdivided their land to create two building lots and
built a house on each. In connection with the subdivision
approval, Utah County required the Gileses to improve a
segment of the Road leading to the northernmost lot and to
dedicate that segment to the county with a fifty-six-foot wide
right-of-way. This dedication left a three-hundred-foot long
section of the Road solely on the Gileses’ property in its original
2. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.‛ Johnson v. Higley, 1999
UT App 278, ¶ 2, 989 P.2d 61 (citation and internal quotation
marks omitted).
20140575-CA 2 2016 UT App 126Clearwater Farms LLC v. Giles
condition, essentially unimproved and with the smaller
historical right-of-way footprint.
¶3 At one time, an irrigation ditch (the Morley ditch) ran
along the west side of the unimproved section of the Road. Prior
to the Gileses’ purchase of their farmland, this ditch provided
irrigation water to the Morley property, but due to flooding of
the Spanish Fork River and a subsequent rise in the farmland’s
elevation from silt deposits, irrigation of the Morley property
from the ditch became impossible. The Gileses agreed to allow
Morley to build a pump house next to side of the Road, complete
with an electric pump attached to a six-inch pipe, thereby
allowing Morley to irrigate his property. Morley buried the six-
inch pipe in the irrigation ditch, leaving only a swale to identify
the location. Morley used this water delivery system until
approximately 2003 when he decided that the cost of electricity
to run the pump made it impracticable to continue. In 2009,
Morley cut the six-inch pipe, left it in the ditch, and built a new
pump house entirely on his own property with a diesel pump to
transport water from a diversion point further north on the
Spanish Fork River at a more affordable cost. The following year
Clearwater purchased the Morley property and several other
parcels of land adjacent to the Gileses’ property ‚to construct a
few homes‛ because, according to Clearwater, the farmland was
‚ripe for ‘subdivision.’‛
¶4 The parties’ dispute arose in 2011 when Clearwater
wanted to remove the six-inch pipe from the Morley ditch and
replace it with a forty-two-inch pipe. The Gileses were
uncooperative. When Clearwater took preliminary steps to
install the larger pipe, the Gileses called local law enforcement to
their property. The parties ultimately came to an agreement in
April 2012 that provided Clearwater with an easement across the
Gileses’ property for utilities and water. But Clearwater claimed
that, because of the delay in reaching this agreement, it was
unable to irrigate for the 2011 growing season. In addition, the
dispute over the width of the right-of-way continued between
20140575-CA 3 2016 UT App 126Clearwater Farms LLC v. Giles
the parties. Clearwater eventually filed this action in an attempt
to establish a fifty-six-foot wide right-of-way on the remaining
three-hundred-foot long section of the Road located on the
Gileses’ property and to seek damages for lost crop revenue that
allegedly resulted from the Gileses’ interference with, and
obstruction of, Clearwater’s rights to transport water through
the Morley ditch during the 2011 growing season.
¶5 Following a bench trial, the district court rejected
Clearwater’s claims. The court determined that Clearwater was
not entitled to a fifty-six-foot wide right-of-way on the
remaining three-hundred foot section of the Road located on the
Gileses’ property. The court reasoned that the Road had already
been dedicated as a public highway through usage over the
years (something the parties had stipulated to), thereby
requiring the court to look at the ‚historical use of the road to
determine its width‛ and not its ‚potential future use‛ as
Clearwater argued. The court found that the width ‚reasonable
and necessary for a farm lane‛ to ensure safe travel was thirty
feet.3 The court also concluded that Clearwater was not entitled
to damages for lost crop revenue, because the Gileses had not
obstructed Clearwater’s water rights. Clearwater timely
appealed.
ISSUES AND STANDARDS OF REVIEW
¶6 Clearwater raises two issues on appeal, both involving
questions of statutory interpretation. First, Clearwater asserts
that the district court erred when it found that the Road was
3. The district court described the thirty-foot width as ‚26 feet for
the traveled surface and a two foot graded shoulder on either
side.‛ The Gileses stipulated that the width of the Road ‚may
consist of 26 feet of pavement with side grades of two feet, or not
more than 30 feet.‛
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limited to a width of thirty feet, because the court ‚expressly
refused to consider any factors other than historical use‛ after
the parties agreed that the Road was a public highway.
Clearwater argues that the phrase ‚facts and circumstances‛ as
used in section 72-5-104 of the Utah Code includes ‚future use of
a public right-of-way.‛ We review for correctness the district
court’s decision regarding whether the statute required the court
to consider historical use ‚but grant the court significant
discretion in its application of the law to the facts.‛ See Haynes
Land & Livestock Co. v. Jacob Family Chalk Creek, LLC, 2010 UT
App 112, ¶ 7, 233 P.3d 529 (citing Utah County v. Butler, 2008 UT
12, ¶ 9, 179 P.3d 775). ‚Additionally, we review the district
court’s factual findings only for clear error.‛ Id. ¶ 7 (citing
Wasatch County v. Okelberry, 2008 UT 10, ¶ 8, 179 P.3d 768).
¶7 Clearwater next asserts that the district court erred by not
awarding damages for lost crops due to the Gileses’ obstruction,
or alternatively, due to their interference with Clearwater’s
water rights under Utah Code sections 73-1-7 or 73-1-15. ‚The
proper interpretation and application of a statute is a question of
law which we review for correctness, affording no deference to
the district court’s legal conclusion*s+.‛ Id. ¶ 9 (alteration in
original) (citation and internal quotation marks omitted).
ANALYSIS
¶8 Clearwater describes the ‚main premise‛ of its argument
with regard to both issues as follows: ‚*E+asements can, and
should be expanded to meet the needs of the dominant estate’s
reasonable and necessary use of the easements.‛ Clearwater
‚maintains that the court erred in not allowing the reasonable
expansion and alteration of *the+ existing easements‛ for road
access and water delivery over the Gileses’ property. We first
address Clearwater’s arguments regarding the width of the
public right-of-way. We then consider Clearwater’s claim for
damages due to lost crops.
20140575-CA 5 2016 UT App 126Clearwater Farms LLC v. Giles
I. Width of the Road
¶9 The district court found that, prior to trial, the parties had
stipulated that the Road ‚has been continuously used by the
public for a period of at least ten years and therefore [the Road]
is a public right-of-way held by the State of Utah in accordance
with section 72-5-104 [of the Utah Code],‛ but it also found that
the parties had not agreed on the width of the Road. The court
then determined that, ‚*o+nce a road has been dedicated by
public use, the Court must look to the historical use of the
road to determine its width‛ and concluded that, based on
historic use, ‚the width of the 300 foot section at 30 feet . . . is
more than reasonable and necessary for a farm lane for two
passing vehicles with the limited traditional uses‛ found in
rural, less-developed areas. Clearwater argues on appeal that the
district court erred in determining the width of the Road by
‚expressly refus[ing] to consider any factors other than historical
use.‛ According to Clearwater, section 72-5-104(9) of the Utah
Code states that a court should consider ‚that which is reasonable
and necessary to ensure safe travel according to the facts and
circumstances,‛ which include ‚potential future use,‛ ‚current
situations,‛ and ‚future uses of the dominant estate, of the
public, and of the easement.‛ (Emphases in original.)
¶10 Utah’s Rights-of-way Act, Utah Code section 72-5-101 to
-406,4 provides that private property may be dedicated to the
public’s use. See Utah Code Ann. § 72-5-104 (LexisNexis Supp.
2015); Wasatch County v. Okelberry, 2008 UT 10, ¶ 9, 179 P.3d 768(stating that the Rights-of-way Act ‚allows property to be
transferred from private to public use without compensation‛).
4. Because the statutory provisions in effect at the relevant times
do not differ materially from the statutory provisions now in
effect, we cite the current version of the Utah Code Annotated
for convenience, except where otherwise noted.
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The Act provides that ‚*a+ highway[5] is dedicated and
abandoned to the use of the public when it has been
continuously used as a public thoroughfare for a period of 10
years.‛ Utah Code Ann. § 72-5-104(2)(a). ‚The requirement of
continuous use . . . is satisfied if the use is as frequent as the
public finds convenient or necessary and may be seasonal or
follow some other pattern.‛ Id. § 72-5-104(3); see also Okelberry,
2008 UT 10, ¶ 14 (interpreting the meaning of ‚continuously‛ in
the Rights-of-way Act as ‚without interruption‛ (citation and
internal quotation marks omitted)). ‚The scope of the right-of-
way is that which is reasonable and necessary to ensure safe
travel according to the facts and circumstances.‛ Utah Code
Ann. § 72-5-104(9); see also Memmott v. Anderson, 642 P.2d 750,
754 (Utah 1982) (‚Generally, the width of a public road is
determined according to what is reasonable and necessary under
all the facts and circumstances.‛ (citation omitted)).
¶11 According to Clearwater, the ‚facts and circumstances‛
mentioned in this section ‚are not limited . . . to just historical
facts and circumstances‛; rather, this language is ‚meant to be all
inclusive [and] to consider current situations and future uses.‛
Clearwater asserts that the court erred by ‚look*ing+ only to
historical uses of the Road‛ and by ‚refusing to evaluate future
uses and the [right-of-way width] requirements imposed by the
County,‛ which Clearwater considers necessary ‚to enjoy the
reasonable use of *its+ propert*y+.‛ According to Clearwater, the
5. ‚‘Highway’ means any public road, street, alley, lane, court,
place, viaduct, tunnel, culvert, bridge, or structure laid out or
erected for public use, or dedicated or abandoned to the public,
or made public in an action for the partition of real property,
including the entire area within the right-of-way.‛ Utah Code
Ann. § 72-1-102(7) (LexisNexis 2009). There appears to be no
dispute that the Road, though a farm lane, is a ‚highway‛ under
the statute.
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Road easement should be ‚adaptable to the current demands
and requirements associated with the purpose of the easement.‛
Clearwater asserts that ‚a court is limited to historical factors
only in considering the type of use of the easement, and is not
limited by historical factors in establishing the breadth or width
of the easement necessary to accommodate that same type of use
today and in the future.‛ (Emphases in original.) Clearwater also
contends that under ‚current *county+ regulations, it is necessary
to have an access road of fifty-six feet‛ and that ‚it is reasonable,
necessary, and proper to have the three hundred foot section
match the existing roadway‛ on the Gileses’ property. We
disagree.
A. The County Ordinance Did Not Require a Fifty-Six-Foot
Right-of-way.
¶12 Utah Code section 72-5-104(8) provides that the right-of-
way is ‚held by the state in accordance with Sections 72-3-102
[class A roads], 72-3-104 [class C roads], 72-3-105 [class D roads],
and 72-5-103 [title to property acquired by the Rights-of-way
Act].‛ Utah Code Ann. § 72-5-104(8). The Road at issue here is a
class D road. See id. § 72-3-105 (2009) (defining a ‚class D road‛
as ‚any road, way, or other land surface route that has been or is
established by use . . . and has been maintained to provide for
usage by the public for vehicles with four or more wheels that is
not a class A . . . or class C road‛); cf. id. § 72-3-102(2) (‚State
highways are class A roads.‛); id. § 72-3-104(2) (‚City streets are
class C roads.‛). Because the Road accommodates four-wheeled
vehicles, which is a basic requirement of class D roads, and does
not meet the definition of either a class A state highway or a
class C city street, the Road falls into the category of class D
roads under section 72-3-105(1) of the Utah Code. Accordingly,
‚*t+he county governing body exercises sole jurisdiction and
control‛ over the Road. Id. § 72-3-105(4). Clearwater argues that,
as a consequence, the Utah County ordinances must govern the
Road’s width. Utah County Code section 17-6-1-2(b) defines
‚Right-of-way‛ as ‚the width of the road set aside for travel and
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road purposes, including the travel way, shoulders, borrow pit,
curbs, gutters, sidewalks, safety islands, walk offsets and planter
strips.‛ The subsection that follows defines ‚Standard rights-of-
way‛ as ‚the road rights-of-way which are wide enough to meet
minimum Utah County standards, including local roads, fifty-six
(56) feet; collector roads, sixty-six (66) feet; arterial roads, eighty
(80) and one hundred (100) feet.‛ Utah County Code § 17-6-1-
2(c) (2011) (emphasis added). But the county ordinances provide
no definition of ‚local roads‛ or any indication that the
categories of roads actually listed in the ordinance include every
possible road right-of-way. Cf. Utah Code Ann. § 68-3-12(1)(f)
(LexisNexis 2014) (providing that the words ‚‘*i+nclude,’
‘includes,’ or ‘including’ mean[] that the terms listed are not an
exclusive list, unless the word ‘only’ or similar language is used
to expressly indicate that the list is an exclusive list‛ (emphasis
added)). Thus, the ordinance itself does not definitively establish
that the Road at issue here is subject to a specific right-of-way
width requirement.
¶13 Further, applicable precedent suggests that it is
inappropriate to rely solely on a county ordinance to determine
the width of a dedicated right-of-way established by public use.
For example, in Schaer v. State, 657 P.2d 1337 (Utah 1983), the
Utah Supreme Court reversed a district court’s grant of
summary judgment because ‚the width of *a+ highway
*dedicated to the public+ presents a question of fact‛ and the
court’s reliance on a city ordinance as determinative of the issue
‚was misplaced.‛ Id. at 1342. The Schaer court concluded that the
city ordinance ‚merely set[] forth the minimum standards and
requirements regarding the widths of streets in a proposed
subdivision plan‛ but that the ordinance ‚*did+ not address the
reasonable and necessary width of a highway dedicated to the
public.‛ Id. Accordingly, on remand the district court was to
consider the ordinance ‚as evidence of what is considered
reasonable and necessary under the circumstances‛ but not
controlling as to ‚what is reasonable and necessary under all the
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facts and circumstances.‛ Id. (citation and internal quotation
marks omitted). Similarly, in Haynes Land & Livestock Co. v. Jacob
Family Chalk Creek, LLC, 2010 UT App 112, 233 P.3d 529, this
court ‚determine*d+ that the district court erred when it deferred
or delegated the road width determination to the County.‛ Id.
¶ 24. In remanding the issue to the district court, we stated that
‚if the issue was to be addressed at all, it needed to be
determined by the district court according to what is reasonable
and necessary under all the facts and circumstances.‛ Id. (citation
and internal quotation marks omitted). Accordingly, we agree
with the district court’s interpretation here that section 72-5-104
of the Rights-of-way Act, even considered in light of the county
ordinances, does not require the Road to have a fifty-six-foot
right-of-way.6
6. The district court’s conclusion also appears to be supported by
Clearwater’s own witness, a long-time director of the Utah
County engineering division responsible for county roads.
Clearwater apparently expected its county-employed witness to
agree with its assertion at trial (and on appeal) that because the
Road is a county road, the county can specify the width of the
road and that Utah County Code section 17-6-1-2(b) establishes
an absolute minimum road width of fifty-six feet. But the
witness stated that there is no ‚specific width‛ for ‚a publically-
acquired thoroughfare,‛ and that a county road can, in fact, have
‚varying widths,‛ including ‚whatever *the public has+ been
using‛ the road for, i.e., a width determined by the public’s
historic use. Further, the engineering director stated that the
width ‚can be what the road currently is‛ at the time of
dedication—which can be less than fifty-six feet. The district
court found that the engineering director’s interpretation of the
county ordinance was ‚reasonable,‛ even though the witness
interpreted the ordinance ‚in a different way than Clearwater
anticipated.‛
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B. The District Court Did Not Abuse Its Discretion.
¶14 Because we have concluded that the county ordinance did
not require the width of the Road to be fifty-six feet, as
Clearwater contends, we now consider whether the district court
abused its discretion when it determined the Road’s right-of-
way to be thirty feet in width. ‚Utah case law has long
established that the determination of the width of a roadway
dedicated to the public is to be performed by the district court.‛
Id. ¶ 21. ‚Once the district court has made a determination *of
width], it will not be disturbed if [supported] by substantial
evidence.‛ Memmott v. Anderson, 642 P.2d 750, 754 (Utah 1982).
¶15 There was substantial evidence in this case to support the
district court’s determination that a thirty-foot right-of-way met
the statutory width requirement: ‚that which is reasonable and
necessary to ensure safe travel according to the facts and
circumstances.‛ See Utah Code Ann. § 72-5-104(9) (LexisNexis
Supp. 2015). In arriving at a thirty-foot width for the publicly
dedicated road, the district court appropriately considered the
evidence before it regarding the Road’s history, which included
‚aerial photographs taken over the years‛ and ‚testimony of
area residents.‛ The court found that ‚according to long-time
residents,‛ ‚the historical width of the road varied‛ but that it
‚was generally less than 30 feet‛ and ‚just wide enough for two
vehicles to pass.‛ It also noted that there was ‚no evidence of
accidents or injuries involving the general public on the road.‛
The court further found that because the Road is ‚bounded
by . . . [the Gileses’+ fence line and the river bank,‛ ‚the use of
the road was confined and could not go outside the range of
30 feet.‛
¶16 In making these findings, the court recognized that
although ‚*t+he width is not limited to the actual ‘beaten track,’‛
the width of a publicly dedicated roadway ‚is determined based
on what is reasonable and necessary to accommodate ‘the uses
which were made of the road.’‛ (Emphasis in original) (quoting
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Jeremy v. Bertagnole, 116 P.2d 420, 423 (Utah 1941)). It noted that
‚*t]here is no authority for the Court to take into account
potential future use in setting the width.‛ The district court
focused on wording from a Utah Supreme Court case upholding
the lower court’s ruling because the width of the road was based
on the ‚‘uses which were made of the road’‛ and what was
‚reasonable and necessary for the purposes for which the road
was used.‛ (Emphases added) (quoting Lindsay Land & Livestock
Co. v. Churnos, 285 P. 646, 649 (Utah 1929)). The district court
found that this language ‚impl[ied] that future use is not
considered in determining the width of a road dedicated by
public use.‛ And with no evidence from Clearwater that the
public right-of-way on the Road was ever fifty-six feet wide, the
court ‚determine*d+ the limited use of the road as a farm lane in
the past 70 years or so of its history more than justifies the 30
foot width as reasonable and necessary for the public use and
safety.‛
¶17 Clearwater does not dispute that the historical evidence of
use supported the court’s decision; rather, as noted above,
Clearwater contends that the court erred by considering only
historical use. Clearwater contends that the district court erred in
looking to only the historical factors, because ‚a court is limited
to historical factors only in considering the type of use of the
easement, and is not limited by historical factors in establishing
the breadth or width of the easement necessary to accommodate
that same type of use today and in the future.‛ (Emphases in
original.) We disagree.
¶18 The Rights-of-way Act provides that ‚*t+he scope of the
right-of-way is that which is reasonable and necessary to ensure
safe travel according to the facts and circumstances.‛ Utah Code
Ann. § 72-5-104(9). ‚In interpreting a statute, our goal is to
ascertain the Legislature’s intent. We do so by first evaluating
the best evidence of legislative intent, namely, the plain
language of the statute itself.‛ Wasatch County v. Okelberry, 2008
UT 10, ¶ 13, 179 P.3d 768 (citations and internal quotation marks
20140575-CA 12 2016 UT App 126Clearwater Farms LLC v. Giles
omitted). And in performing that task, ‚*w+e give the words of a
statute their plain, natural, ordinary, and commonly understood
meaning, in the absence of any statutory or well-established
technical meaning, unless it is plain from the statute that a
different meaning is intended.‛ Id. (citation and internal
quotation marks omitted).
¶19 Prior cases appear to have interpreted the Rights-of-way
Act to focus on ‚the facts and circumstances‛ that attended the
dedication, i.e., the sort of use that was made of the road during
the period that established its status as a public way. In Lindsay
Land & Livestock the Utah Supreme Court approved the lower
court’s findings regarding the width of a road dedicated as a
public highway. Id. at 649. The supreme court concluded that
‚*u+nder all of the evidence‛ the lower court had before it—
including the testimony of witnesses estimating varying road
widths over the years—‚the court was justified in fixing the
width of the road at one hundred feet.‛ Id. The court recognized
that ‚*t]here was evidence that more than this width had been
actually used‛ but it determined that the lower court’s decision
was ‚a legitimate conclusion from all of the evidence.‛ Id. The
court determined that ‚*i+t was proper and necessary for the
court in defining the road to determine its width, and to fix the
same according to what was reasonable and necessary, under all
the facts and circumstances, for the uses which were made of the
road.‛ Id. Accordingly, the supreme court concluded that the
width of the public highway that the lower court set was
properly based on that which was ‚reasonable and necessary for
the purposes for which the road was used,‛ implying that future
use is not considered in determining the width of a road
dedicated to public use. See id.
¶20 Following Lindsay Land & Livestock, the Utah Supreme
Court again looked to the historical uses of a road dedicated to
the public when determining its width. In Jeremy v. Bertagnole,
116 P.2d 420 (Utah 1941), the court was asked to consider
whether the width of a road dedicated to the public was limited
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to the ‚beaten track,‛ i.e., the ‚width as has actually been used
by [the public].‛ Id. at 423. But the court declined to take such a
narrow view and instead considered the ‚evidence adduced as
to the use of the road‛ as found by the lower court to conclude
that ‚the width . . . is not to be . . . measured by the boundaries
of the beaten track‛ but that ‚*i+t was proper and necessary for
the [lower] court in defining the road to determine its width, and
to fix the same according to what was reasonable and necessary,
under all the facts and circumstances, for the uses which were
made of the road.‛ Id. (quoting Lindsay Land & Livestock, 285 P. at
649). Thus, although the established footprint of the dedicated
road was not controlling, in determining the reasonably
necessary width for safe travel, the court looked to how the
dedicated roadway had been used by the public. Jeremy, 116 P.2d
at 423–24.
¶21 Finally, in Memmott v. Anderson, 642 P.2d 750 (Utah 1982),
the Utah Supreme Court remanded the question of the width of
a publicly dedicated highway to the district court for further
findings to support its determination that sixteen feet, and not
twenty-two feet, was the appropriate width of the easement. Id.
at 754. In doing so, the Memmott court approvingly cited both
Lindsay Land & Livestock and Jeremy. Id. (‚Generally, the width of
a public road is determined according to what is reasonable and
necessary under all the facts and circumstances.‛).
¶22 This court has also applied the principle of looking to the
historical uses of a road that has been dedicated to the public
when directing a district court to determine its width. In Haynes
Land & Livestock Co. v. Jacob Family Chalk Creek, LLC, 2010 UT
App 112, 233 P.3d 529, we concluded that the district court erred
when it determined the width of a public highway by
‚defer*ring+ or delegat*ing+‛ that responsibility to the county. Id.
¶ 24 (‚*I+f the issue was to be addressed at all, it needed to be
determined by the district court ‘according to what is reasonable
and necessary under all the facts and circumstances.’‛ (quoting
Memmott, 642 P.2d at 754)). We also provided further guidance
20140575-CA 14 2016 UT App 126Clearwater Farms LLC v. Giles
to the district court by noting, ‚Should the district court elect to
determine the width of the public portions of the Roadway on
remand, it must determine what is reasonable and necessary to
ensure safe travel consistent with the historical uses that resulted in
dedication.‛ Id. ¶ 24 n.8 (emphasis added) (citing Jeremy, 116 P.2d
at 424) (additional citation and internal quotation marks
omitted).
¶23 Based on this case law, it is apparent that the district
court’s interpretation that the dedication statute provides for a
width that is ‚reasonable and necessary‛ for safe travel under
the circumstances that existed during the period of dedication is
supported by the language of the statute itself and by prior
precedent. And Clearwater’s arguments do not require a
different conclusion.
¶24 Clearwater argues that, ‚Case law consistently holds that
the width should be established to be a ‘sufficient width for safe
and convenient use thereof by such traffic.’‛ (Quoting Haynes
Land & Livestock, 2010 UT App 112, ¶ 24 n.8.) Clearwater then
asserts that ‚the thirty feet [width] established by the court
allows for a vehicle to access the farm in a crop-only state, but it
does not allow for reasonable or convenient use of the farms for
all of their normal, typical, and incidental uses as the farms
cannot be divided into smaller parcels with a farmhouse on
each,‛ relying upon a section of the Utah County Code and
testimony from its own witness—a Utah County engineering
director—as being determinative of the issue that the Road’s
minimum width cannot be less than fifty-six feet. But because
the district court’s determination of the width of the Road was
‚[supported] by substantial evidence,‛ we decline to disturb its
ruling. See Memmott, 642 P.2d at 754; see also Blonquist v.
Blonquist, 516 P.2d 343, 344 (Utah 1973) (determining that ‚the
evidence supports the findings of the court‛ that the forty-four
foot width of the roadway dedicated by public use was
‚reasonably safe and convenient for the use to which the road
was put‛); Lindsay Land & Livestock v. Churnos, 285 P. 646, 649
20140575-CA 15 2016 UT App 126Clearwater Farms LLC v. Giles
(Utah 1929) (approving the district court’s conclusion that ‚from
all of the evidence‛ a width of one hundred feet ‚was reasonable
and necessary for the purposes for which the road was used‛).
¶25 Further, Clearwater has not persuaded us that the cases it
cites require a different conclusion. Clearwater argues on appeal
that ‚easements can, and should be expanded to meet the needs
of the dominant estate’s reasonable and necessary use of the
easements‛ and that ‚[c]ase law recognizes that it is appropriate
and proper to allow such use of an easement as is reasonably
necessary to make use of and enjoy the dominant estate,
provided that it does not unduly burden the servient estate.‛
Clearwater then asserts, ‚Utah case law is full of examples of
easements not being set in stone, but being adaptable to the
current demands and requirements associated with the purpose
of the easement.‛ In so arguing, Clearwater cites Stern v.
Metropolitan Water District of Salt Lake & Sandy, 2012 UT 16, 274
P.3d 935. But the Stern court stated, ‚Here, the key contextual
cue is the common law presumption that parties to an easement
anticipate increased future use and reasonable technological
improvements.‛ Id. ¶ 69. In support of its ruling, the Stern court
cited two private prescriptive easement cases—and no case
involving a public right-of-way acquired through public use. Id.And this principle of expansion that Clearwater argues on
appeal seems to have emerged from the realm of private
prescriptive easements rather than easements arising from
public use. Private prescriptive easements have at their core the
concept that there is one property that is benefited by the
easement—the dominant estate—and another burdened by it—
the servient estate. See 25A Am. Jur. 2d Easements and Licenses § 1
(2016) (‚When an easement is for the benefit of another property,
such as an easement to provide access to an adjacent property,
the neighboring property is known as the ‘dominant estate’
while the property subject to the easement is known as the
‘servient estate.’‛ (footnote omitted)); Thompson on Real
Property § 60.02(f)(3) (2006) (‚The property for the benefit of
20140575-CA 16 2016 UT App 126Clearwater Farms LLC v. Giles
which the easement is imposed is called the dominant
tenement. . . . The property upon which the easement is imposed
is called the servient tenement.‛ (footnote omitted)). Thus, it is
natural to consider the reasonably foreseeable changes that may
occur in ‚*t+he manner, frequency, and intensity of the use‛ that
may be necessary ‚to accommodate normal development of the
dominant estate . . . benefited by the servitude.‛ Restatement
(Third) Property: Servitudes § 4.10 (Am. Law Inst. 2000).
¶26 In contrast, there is no dominant estate associated with a
public right-of-way: ‚In every instance of a private easement,
that is, an easement not enjoyed by the public, there exists the
characteristic feature of two distinct tenements, one dominant
and the other servient; public easements on the other hand are in
gross, and in this class of easements there is no dominant
tenement.‛ 28A C.J.S. Easements § 11 (2008) (footnote omitted);
see also 25A Am. Jur. 2d Easements and Licenses § 6 (2016) (‚A
right of way may be public or private. The use rights of a public
right of way are vested equally in each and every member of the
public while a private right of way relates to that class of
easements in which a particular person . . . , as distinguished
from the general public, has an interest or right.‛ (footnotes
omitted)). And the type of easement at issue here is one acquired
by public use for the benefit of the traveling public; it is not a
private easement, whether prescriptive or otherwise. Thus, the
fact that Clearwater may benefit from the Road is incidental to
the Road’s public nature and does not give Clearwater an
interest different from any other member of the public or afford
Clearwater’s property the status of a dominant estate whose
own potential for expansion can ipso facto dictate an expanded
role for the public’s right-of-way.
¶27 In addition, though it is conceivable that the use of a
public right-of-way may increase in intensity as time goes on,
Clearwater has not established that even in the case of a private
easement, ‚‘a change in the manner, frequency, and intensity of
use’‛ could extend beyond ‚‘the physical boundaries of the
20140575-CA 17 2016 UT App 126Clearwater Farms LLC v. Giles
existing easement.’‛ See Stern, 2012 UT 16, ¶ 69 n.39 (quoting
Parris Props., LLC v. Nichols, 700 S.E.2d 848, 854 (Ga. Ct. App.
2010)) (‚*A+ change in the manner, frequency, and intensity of
use of the easement within the physical boundaries of the existing
easement is permitted without the consent of the other party, so
long as the change is not so substantial as to cause unreasonable
damage to the servient estate or unreasonably interfere with its
enjoyment.‛ (alteration in original)). Consequently, Clearwater
has not persuaded us that the district court was wrong to limit
the width of the Road, a right-of-way acquired through public
use, to thirty feet, the width it determined was reasonable and
necessary for safe travel given the circumstances of its
acquisition and then-current use, rather than the fifty-six-foot
width Clearwater asserted was required to accommodate the
potential future uses of its own private property. Accordingly,
the district court did not abuse its discretion by setting the
Road’s width at thirty feet.
II. Obstruction of the Ditch
¶28 Clearwater next contends that the district court erred in
not awarding damages against the Gileses ‚for obstructing and
restricting Clearwater’s ability to improve *its+ existing water
easement.‛ Clearwater asserts that it lost crop revenue because
of the Gileses’ obstruction and interference, and it brings this
claim under two sections of the Utah Code, specifically section
73-1-15, which prohibits obstructing a watercourse, and 73-1-7,
which allows for expansion of existing canals and ditches. See
Utah Code Ann. § 73-1-7 (LexisNexis 2009); id. § 73-1-15 (2012).
Clearwater asserts that section 73-1-7 ‚creat*es+ its own cause of
action,‛ which is ‚independent‛ of section 73-1-15. Clearwater
has not persuaded us that the district court erred.
¶29 Clearwater’s damages claim is largely based on the
following series of events. Clearwater approached the Gileses
about installing a forty-two-inch pipe in place of the six-inch
pipe in the Morley ditch. The Gileses objected. The parties
20140575-CA 18 2016 UT App 126Clearwater Farms LLC v. Giles
attempted to resolve the issue, but eventually the Gileses
informed Clearwater that there ‚would *be+ no cooperation‛ on
their part. Regardless, Clearwater decided to move forward with
installation of the forty-two-inch pipe. Clearwater arranged for a
gas company contractor to perform a gas line probe before
digging to install the larger pipe. The contractor parked a track
hoe in front of the abandoned pump house near the Road, but
the Gileses mistakenly believed Clearwater owned the track hoe
and that it was there for the purpose of installing the larger pipe
in the Morley ditch. The Gileses called the sheriff—who
previously had told them that contacting the authorities was the
safest path to take if there was a conflict. After arriving at the
location, the sheriff stated that, in his opinion, the larger pipe
should not be installed until the matter was resolved. At that
time, based on the sheriff’s suggestion, the Gileses placed ‚no
trespassing‛ signs on the pump house and told Clearwater not
to enter the pump house or make any improvements to the
water delivery system. In response, Clearwater petitioned for a
temporary restraining order to allow it to proceed with the pipe
installation. But Clearwater did not move the restraining order
petition forward to resolution, because, according to Clearwater,
the assigned judge was unavailable at the time. (Apparently,
Clearwater did not seek another judge to hear the petition.)
¶30 Clearwater argues that the district court erred in rejecting
its claim for damages under Utah Code section 73-1-15 on the
basis that the Gileses did not cause an interference or obstruction
of Clearwater’s water rights. Clearwater contends that section
73-1-15 provides that ‚‘watercourse*s+ shall be protected against
all encroachments,’ and that ‘maintain*ing+ in place any
obstruction’ is a violation of the statute.‛ (Alterations and
emphases in original) (quoting Utah Code § 73-1-15).
Additionally, Clearwater quotes the section’s liability provision:
‚a person who violates this section is ‘liable for damages or other
relief and costs in a civil action to any person injured by that
act.’‛ (Quoting Utah Code § 73-1-15.) On appeal, Clearwater
20140575-CA 19 2016 UT App 126Clearwater Farms LLC v. Giles
frames the issue as ‚whether the three factors found by the
[district] court (no cooperation, calling the Sheriff, and posting
‘no trespassing’ signs) constitute an ‘obstruction’ *by the Gileses]
under the statute.‛ Clearwater asserts that these three acts
qualify as obstructions under the statute and that the district
court therefore erred by not ‚determin*ing+ the amount of
damages to be awarded to Clearwater for their crops lost in
2011.‛
¶31 The court found that ‚Clearwater acknowledged [the
Gileses] never physically prevented Clearwater from digging a
ditch or installing a pipe‛ and that the Gileses ‚only verbally
told Clearwater they would resist, would not allow the
installation and would not cooperate.‛ The court found that the
Gileses’ resistance ‚was turning to the Sheriff—not taking the
law into their own hands.‛ After quoting section 73-1-15, the
district court concluded, ‚Simply put, [the Gileses] never placed
any physical obstruction or changed the water flow along any
ditch. There was no water flowing in a ditch to be interfered
with.‛
¶32 We agree with the district court that the Gileses’ actions
do not constitute an obstruction under the statute. See Haynes
Land & Livestock Co. v. Jacob Family Chalk Creek, LLC, 2010 UT
App 112, ¶ 9, 233 P.3d 529 (‚The proper interpretation and
application of a statute is a question of law which we review for
correctness, affording no deference to the district court’s legal
conclusion[s].‛ (alteration in original) (citation and internal
quotation marks omitted)). Section 73-1-15 of the Utah Code
states in relevant part,
Whenever any person has a right-of-way of any
established type or title for any canal or other
watercourse it shall be unlawful for any person to
place or maintain in place any obstruction, or change of
the water flow by fence or otherwise, along or across or
in such canal or watercourse, except as where said
20140575-CA 20 2016 UT App 126Clearwater Farms LLC v. Giles
watercourse inflicts damage to private property,
without first receiving written permission for the
change and providing gates sufficient for the
passage of the owner or owners of such canal or
watercourse. That the vested rights in the
established canals and watercourse shall be
protected against all encroachments.
Utah Code Ann. § 73-1-15(1) (LexisNexis 2012) (emphasis
added). ‚Any person violating this section is guilty of a crime,‛
id. § 73-1-15(2), and is ‚also liable for damages or other relief and
costs in a civil action to any person injured by that act,‛ id. § 73-
1-15(3). In Trujillo v. Jenkins, 840 P.2d 777 (Utah 1992), the Utah
Supreme Court addressed whether the owners of an irrigation
ditch would be ‚subject to criminal liability under *section 73-1-
15] . . . if they constructed a fence along *a+ ditch.‛ Id. at 779.
Although Trujillo is not factually similar to the instant appeal,
the supreme court did shed light on the meaning of this statute:
Section 73-1-15 prohibits changing the water flow
or placing an obstruction along a ditch. Fencing a
ditch would not necessarily violate either
prohibition. First, placing a fence along a ditch
would not change the ditch’s water flow. Second,
fencing a ditch would not necessarily obstruct the
ditch. To obstruct means to block or close up by an
obstacle . . . to hinder from passage, action, or
operation.
Id. (omission in original) (emphasis, citation, and internal
quotation marks omitted). The supreme court stated that an
obstruction would either ‚change the ditch’s water flow‛ or
‚block or close up by an obstacle . . . to hinder from passage.‛ Id.(omission in original) (emphasis, citation, and internal quotation
marks omitted). Both of these meanings imply the use of some
type of a physical barrier that is actually placed in the ditch and
that is in contact with the water thereby changing its flow. See
20140575-CA 21 2016 UT App 126Clearwater Farms LLC v. Giles
Nicholson v. Holloway Planting Co., 216 So. 2d 562, 566 (La. Ct.
App. 1968) (describing an ‚obstacle‛ as something that would
‚impede*+‛ the flow of water in a canal); Malone v. El Paso County
Water Improvement Dist. No. 1, 20 S.W.2d 815, 820 (Tex. Ct. App.
1929) (concluding that improper canal maintenance had caused
an obstruction of the water flow where the canal had become
‚clogged with weeds, grass and other obstacles which impeded,
blocked and retarded the proper flow of water‛ (internal
quotation marks omitted)); Obstruct, Black’s Law Dictionary
(10th ed. 2014) (‚To block or stop up (a road, passageway, etc.);
to close up or close off, esp. by obstacle.‛).
¶33 Here, none of the Gileses’ actions reach the level of an
obstruction under the statute. Regarding the phone call to the
sheriff, we cannot see how this action alone would ‚place or
maintain in place any obstruction, or change of the water
flow . . . along or across‛ the ditch. See Utah Code Ann. § 73-1-
15(1). Further, the Gileses’ phone call to the sheriff and his
subsequent arrival did not ‚change the ditch’s water flow‛ or
‚block or close up by an obstacle . . . to hinder from passage.‛ See
Trujillo, 840 P.2d at 779 (omission in original) (emphasis, citation,
and internal quotation marks omitted). The Gileses merely
asserted their belief that Clearwater had no right to expand the
size of the pipe in the Morley ditch from six inches to forty-two
inches. And although this position was contrary to Clearwater’s
assertion that it could freely exercise its water rights by
expanding the circumference of the pipe, the Gileses’ recourse to
the sheriff (who simply voiced his opinion that the larger pipe
should not be installed until the parties’ dispute was resolved),
and their installation of no-trespassing signs, may have raised a
legal quandary for Clearwater, but those actions do not amount
to an obstruction under the statute. In effect, the Gileses’ actions
seem more like the mere assertion of a contrary legal position.
And neither the sheriff’s opinion nor the signs ‚block or stop
up‛ or ‚close up or close off‛ the waterway. Nor did they
change the waterway’s course or impede Clearwater’s access to
20140575-CA 22 2016 UT App 126Clearwater Farms LLC v. Giles
it. At most, Clearwater was faced with a risk-benefit calculation:
whether to move forward and install the forty-two-inch pipe and
incur the legal risk that the Gileses might be correct, or keep the
six-inch pipe and lose the crops that the larger pipe would have
irrigated. And while the Gileses’ actions posed a dilemma of
some sort for Clearwater, a claim of a contrary legal position
does not amount to an obstruction of the kind contemplated by
the statute. More than that is required to invoke the statute’s
criminal and pecuniary remedies. Furthermore, Clearwater had
a relatively speedy way to resolve this dilemma through an
expedited legal process, which it began through its motion for a
temporary restraining order but failed to follow through to
resolution.
¶34 Moreover, Clearwater, in its opening brief, has failed to
develop beyond simple assertions its arguments regarding the
statutory significance of the Gileses’ posting of ‚no trespassing
signs‛ and their lack of cooperation with Clearwater’s desire to
install the larger pipe.7 Clearwater has not engaged in the district
7. Clearwater’s entire argument in its opening brief is that an
obstruction under the statute includes the posting of ‚no
trespassing‛ signs consists of the following: ‚Clearwater asserts
that ‘any obstruction’ includes the Giles*es’+ barring Clearwater
from being able to use or expand their water easement by
posting ‘No Trespassing’ signs and utilizing a Sheriff to arrest
Clearwater for going against the ‘No Trespassing signs.’‛ And its
argument that an obstruction under the statute includes a failure
to cooperate is even shorter: ‚the Giles*es+ refused to cooperate
with Clearwater or allow the modifications to be made.‛ And, in
its reply brief, Clearwater again does not analyze the issue, but
simply states, ‚As articulated in Clearwater’s opening
brief, . . . these three facts[, i.e., no cooperation from Giles, calling
the Sheriff, and posting ‘no trespassing’ signs,+ do constitute an
(continued<)
20140575-CA 23 2016 UT App 126Clearwater Farms LLC v. Giles
court’s ruling on these issues, let alone shown how the court
erred. See Utah R. App. P. 24(a)(9).
¶35 Clearwater’s contention that the district court erred in
interpreting section 73-1-7 of the Utah Code suffers from similar
defects and our prior reasoning is equally applicable. Clearwater
argues that it had a statutory right to enlarge the existing six-
inch pipe and that the Gileses ‚did not have any right to prevent
Clearwater from reasonably expanding or modifying the ‘ditch’
or pipe.‛ Clearwater contends that ‚due to the strong public
policy in Utah favoring the ability of a party to obtain water, the
legislature allowed ‘any person’ who desired to use or enlarge
existing ‘canals’ or ‘ditches’ to do so upon proper compensation
to the easement holder.‛ (Quoting Utah Code Annotated
section 73-1-7 (LexisNexis 2009).)8 According to Clearwater, as
(2016 UT App 126Clearwater Farms LLC v. Giles
an ‚easement holder‛ it has ‚the right to make reasonable
upgrades and adjustments,‛ including ‚a reasonable
technological improvement and an effort to reduce waste of
water to have irrigation waters flow through an enclosed pipe.‛
The Gileses retort stating that ‚even if a pipeline is equated with
a ditch, the statute only allows expansion of ‘the ditch,’ not
construction of a new ditch.‛9 The district court found that there
was ‚clearly no canal,‛ because the six-inch pipe had been
buried. The court then employed a statutory interpretation
approach to decide ‚whether the six-inch pipe was a ‘ditch’‛
under section 73-1-7, thereby allowing for damages for lost
crops. The court concluded that ‚Clearwater does not get the
benefit of the statute‛ because the ‚plain meaning‛ of the statute
does not equate a pipe with a ditch.
¶36 ‚When reviewing a decision made on one ground, we
have the discretion to affirm the judgment on an alternative
ground if it is apparent in the record.‛ Madsen v. Washington
Mutual Bank, 2008 UT 69, ¶ 26, 199 P.3d 898 (emphasis in
original); see also Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d 1158(2016 UT App 126Clearwater Farms LLC v. Giles
(‚It is well settled that an appellate court may affirm the
judgment appealed from if it is sustainable on any legal ground
or theory apparent on the record, even though such ground or
theory differs from that stated by the trial court to be the basis of
its ruling or action, and this is true even though such ground or
theory is not urged or argued on appeal . . . , was not raised in
the lower court, and was not considered or passed on by the
lower court.‛ (citation and internal quotation marks omitted)).
Here, the district court determined that the ‚plain meaning‛ of
the statute’s language does not entitle Clearwater to damages,
because the statutory language did not extend the plain meaning
of the term ‚ditch‛ to encompass an enclosed pipe. We agree
with the district court that Clearwater is not entitled to damages,
but we affirm based on the same reasoning that led the court to a
similar conclusion under section 73-1-15: Clearwater has failed to
demonstrate that the Gileses actionably impeded its ability to
use or enlarge the Morley ditch.
¶37 Clearwater argues that it had the affirmative right to
replace the six-inch pipe with a forty-two-inch pipe. But what
Clearwater has not done on appeal is demonstrate how the
Gileses’ actions—refusing to cooperate, calling law enforcement,
or posting a ‘no trespassing’ sign on the pump house—impeded
it in some way from exercising ‚the right to use or enlarge *a+
canal or ditch already constructed.‛ As previously discussed, the
Gileses merely asserted their belief that Clearwater had no right
to expand the existing pipe in the Morley ditch to forty-two
inches. Although the Gileses’ position was contrary to
Clearwater’s, the simple assertion of a position that is at odds
with Clearwater’s did not stop Clearwater from asserting and
exercising its rights. Certainly Clearwater could have moved
forward and exercised what it believed it had the right to do, i.e.,
enlarge the six-inch pipe to forty-two inches. But as previously
discussed, Clearwater was faced with a risk-benefit calculation.
See supra ¶ 33. And Clearwater has not persuaded us that the
actions taken by the Gileses impeded it from exercising what it
20140575-CA 26 2016 UT App 126Clearwater Farms LLC v. Giles
claims to be its right to enlarge the six-inch pipe in the Morley
ditch. Therefore, we affirm the district court’s ruling.
CONCLUSION
¶38 Because the district court did not err in interpreting the
statute and because its determination of the width of the Road
was based on substantial evidence, we decline to disturb its
ruling. We also affirm the district court’s determination that the
Gileses did not obstruct Clearwater’s water rights or impede its
right to enlarge the ditch. Accordingly, we affirm in all respects.
20140575-CA 27 2016 UT App 126