SRB Investment v. Spencer

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 23
IN THE
SUPREME COURT OF THE STATE OF UTAH
SRB INVESTMENT CO., LTD and GARY TOOKE,
Appellants,
v.
DALE ORSON SPENCER, et al.,1
Appellees.
No. 20190034
Heard December 11, 2019
Filed May 8, 2020
On Direct Appeal
Sixth District, Kanab
The Honorable Paul D. Lyman
No. 120600113
Attorneys:
V. Lowry Snow, W. Devin Snow, St. George, for appellants
Clifford V. Dunn, Michael C. Dunn, St. George, for appellees
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
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1 MARY ELLEN SPENCER; MARK D. SPENCER; CHARLENE SPENCER;
DALE and MARY ELLEN SPENCER, trustees of THE DALE AND MARY
ELLEN SPENCER FAMILY TRUST; SPENCER RANCH INC.; KOB PROPERTIES,
LLC; and THE GOOD DAY RANCH, LLC are also appellees.
SRB INVESTMENT CO. v. SPENCER
Opinion of the Court
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 SRB Investment Company2 sought access to its property
through a prescriptive easement crossing land owned by the Spencer
family. The district court determined that SRB had established this
easement. But the court prohibited SRB from using the easement for
any reason other than to access the SRB property for the purposes of
ranching or farming. Because the court improperly focused on the
purposes for which SRB’s land would be used, rather than on the
purpose for which the relevant portion of the Spencer property
would be used, we reverse its determination and remand for a new
determination regarding the scope of the easement. On remand, the
court should take a flexible approach to determining the scope of the
prescriptive easement—an approach that permits changes in the use
of the parties’ respective property rights so long as those changes do
not materially increase the burden imposed on either party.
Background
¶2 For well over twenty years, Norman Carroll used a road
crossing real property owned by the Spencer family to access his
own property. But in 2005, Mr. Carroll sold his property to SRB
Investment Company. Although Mr. Carroll had principally used his
property only for ranching and farming, SRB purchased the property
with the intent to use it as a cabin vacation spot for its members.
¶3 Some time after SRB purchased the property, the Spencers
objected to SRB’s continued use of the portion of the road crossing
the Spencer property. In response, SRB filed this action in order to
regain access to the property.
¶4 After a one-day bench trial, the district court determined
that SRB had acquired a prescriptive easement across the Spencer
property. And, citing Utah case law, it held that the scope of the
easement needed to be limited to its historical usage. In determining
the easement’s historical usage, the court found that “almost all of
the relevant evidence” came from Mr. Carroll’s deposition
testimony.
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2 We refer to appellants SRB Investment Company and Gary
Tooke collectively as SRB. And we refer to appellees collectively as
the Spencers or the Spencer family.
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Opinion of the Court
¶5 Based on Mr. Carroll’s testimony, the court held the
following: (1) the easement was limited to “vehicular travel in daily
uses for farming and ranching purposes, and uses at random times
for random reasons” and (2) “[m]ultiple house buildings on the SRB
Parcel are outside the scope of the prescriptive easement’s
historic[al] usage, but a camp or other [temporary] building or
vehicle that is ancillary to farming and ranching used on the SRB
Property would not be outside the scope.” SRB appealed this
determination. We have jurisdiction pursuant to Utah Code section
78A-3-102(3)(j).
Standard of Review
¶6 In determining whether a prescriptive easement exists, a
district court must make a number of factual findings regarding the
duration and nature of the easement’s use. The court must also
correctly identify the legal standard governing the creation of a
prescriptive easement. And it must correctly apply that legal
standard to its factual findings. In reviewing these determinations on
appeal, we review the district court’s conclusions regarding the legal
standard for correctness.3 And we review the court’s factual
findings, including how the court applied those findings to the
correct legal standard, for an abuse of discretion.4
Analysis
¶7 SRB argues the district court erred in defining the scope of
the easement based on how SRB used its own property during the
prescriptive period. Instead, SRB argues that the court should have
defined the scope of the easement based on how SRB used the
Spencer’s property during that period. We agree and remand this
case to the district court for a new determination, consistent with the
legal principles outlined in this opinion, regarding the easement’s
scope.
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3 See Schroeder v. Utah Atty. Gen.’s Office, 2015 UT 77, ¶ 17, 358
P.3d 1075.
4 Judd v. Bowen, 2018 UT 47, ¶ 8, 428 P.3d 1032 (explaining that
“such a determination 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”(citations omitted) (internal
quotation marks omitted)).
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Opinion of the Court
¶8 We have long held that “the extent of a prescriptive
easement is measured and limited by its historic[al] use during the
prescriptive period.”5 The district court cited this rule in limiting the
scope of the easement across the Spencer property. But, in so doing,
the court limited the use of the easement to “vehicular travel in daily
uses for farming and ranching purposes, and uses at random times
for random reasons.” It also appeared to limit SRB’s use of SRB’s
own property by stating that “[m]ultiple house buildings on the SRB
Parcel are outside the scope of the prescriptive easement’s
historic[al] usage, but a camp or other [temporary] building or
vehicle that is ancillary to farming and ranching uses on the SRB
Property would not be outside the scope.” By limiting the scope of
the easement in this way, the district court erred.
¶9 The district court erred because it erroneously equated the
“purpose” for which SRB’s property—the dominant estate—was
used with the “extent” of the easement’s historical use over the
Spencer property—the servient estate. This is inconsistent with basic
principles underlying the prescriptive easement doctrine.
¶10 When the principles underlying the prescriptive easement
doctrine are considered, together with our case law, an important
distinction between a prescriptive easement’s “type” (or “purpose”)
and a prescriptive easement’s “scope” emerges. Under this
distinction, a prescriptive easement’s type should be categorized
broadly based on the general purpose for which the easement over
the servient estate has historically been used. And a prescriptive
easement’s scope should be defined with particularity based on the
nature, or extent, of that historical use. We discuss this distinction in
greater detail before applying it to the facts of this case.
I. There is an Important Distinction Between a Prescriptive
Easement’s Type and Its Scope
¶11 “It is elementary that the use of an easement must be as
reasonable and as little burdensome to the servient estate as the
nature of the easement and its purpose will permit.”6 Although our
case law has never explicitly distinguished between a prescriptive
easement’s type—as defined by its historical purpose—and its
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5 Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998).
6Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah
1946) (emphasis added) (internal quotation marks omitted).
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Opinion of the Court
scope—as defined by the nature of its historical use—such a
distinction is implicit in our previous prescriptive easement cases
and is consistent with well-established prescriptive easement
principles.
¶12 Our case law clearly establishes that there are different types
of prescriptive easements.7 The most common type of prescriptive
easement is an access easement, or, in other words, an easement for
ingress or egress across the servient estate.8 But we have also
recognized other types of easements, such as easements for the
purposes of recreation,9 logging,10 and irrigation.11 And we have
explained that an easement “for one purpose gained by user cannot
be turned into a[n] [easement] for another purpose if the latter adds
materially to the burden of the servient estate.”12 For this reason, the
“first step in determining whether the holder of an easement is
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7 See, e.g., Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah
1977) (distinguishing between an easement established for access
and an easement for recreational purposes).
8 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, 559 P.2d at 948
(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, 715 (Utah 1946) (affirming the claimant’s right to use a strip of
his neighbor’s land for “the purpose of traveling” to his land from a
public road); Judd v. Bowen, 2017 UT App 56, ¶ 43, 397 P.3d 686
(explaining that “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”).
9 Richards, 559 P.2d at 949.
10 Id.
11 Big Cottonwood Tanner Ditch Co., 174 P.2d at 158.
12Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (internal
quotation marks omitted).
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Opinion of the Court
entitled to make a particular use challenged by the owner of the
servient estate is to determine whether the use falls within the
purposes for which the [prescriptive easement] was created.”13
¶13 But the purpose for which a prescriptive easement was
created is not the only limiting factor in defining the easement. We
have also explained that the extent of a prescriptive easement is
measured and limited by the nature of the use made during the
prescriptive period.14 Utah courts often refer to this second form of
limitation as the “scope” of the easement.15
¶14 Thus our case law establishes that a prescriptive easement
should be defined generally by type—based on the purpose for
which it was acquired—as well as specifically by scope—based on
the nature and extent of the easement’s historical use. But even
though an easement’s type and scope both work to define the extent
of the rights enjoyed through a prescriptive easement, the limitations
imposed by the type and scope should be analyzed separately.
II. The Type of a Prescriptive Easement Should be Defined Broadly
Based on the Purpose for Which the Servient Estate was Used
¶15 Because a prescriptive easement acquired “for one purpose
. . . cannot be turned into a[n] [easement] for another purpose if the
latter adds materially to the burden of the servient estate,”16 the
“outcome in any particular case” may hinge on “the level of
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13RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. d (AM.
LAW INST. 2000) (emphasis added).
14 See Crane, 683 P.2d at 1068 (approving the district court’s
decision in which it limited “the nature and extent of the use by
which it was acquired”); McBride v. McBride, 581 P.2d 996, 997 (Utah
1978).
15 See, e.g., Judd, 2017 UT App 56, ¶ 43 (“[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.”).
16Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (internal
quotation marks omitted).
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Opinion of the Court
generality with which the purpose is defined.”17 So, for example, the
purpose of the easement in this case could be broadly defined as an
easement to access the dominant estate. Or, as the district court’s
order illustrates, it could be narrowly defined as an easement to
access the dominant estate for farming and ranching activities. But
our case law suggests that the type, or purpose, of a prescriptive
easement should be defined broadly.
¶16 For example, in describing the purpose of an access
easement, we typically characterize the purpose as being to access
another property without further identifying the purpose for which
that property was being accessed.18 Likewise, we have defined
easements used for “recreational purposes” without specifically
identifying the types of recreation.19 And we have discussed an
easement for “the purpose of discharging” water “across the
premises of the plaintiffs” without discussing the purpose for which
the water would be used.20 So our case law suggests that when
describing the easement’s purpose we need only do so in broad
terms.
¶17 Accordingly, courts should construe the general purpose of
a prescriptive easement broadly. And once this general purpose is
determined, any use of the servient estate that is for another purpose
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17RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. d (AM.
LAW INST. 2000) (emphasis added).
18 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); 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, 715 (Utah 1946)
(affirming the claimant’s right to use a strip of his neighbor’s land for
“the purpose of traveling” to his land from a public road); Judd v.
Bowen, 2017 UT App 56, ¶ 43, 397 P.3d 686 (explaining that “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”).
19 See Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977).
20Hubble v. Cache Cty. Drainage Dist. No. 3, 259 P.2d 893, 895 (Utah
1953).
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Opinion of the Court
is impermissible unless the burden imposed on the servient estate by
the change is immaterial.
¶18 In applying this rule to this case, the factual findings of the
district court suggest that the purpose of the prescriptive easement at
issue is to provide access to SRB’s property. The court held that “the
essentially unrefuted testimony of Norman H. Carroll clearly and
convincingly establish[ed] that a prescriptive easement was created”
to access “the SRB Parcel.” Accordingly, the general purpose of the
easement should be defined broadly as being for access to SRB’s
property, and any use of the servient estate, other than for access to
the SRB property, should be deemed permissible only if it does not
materially add to the burden imposed by the access easement.
III. The Extent, or Scope of Permissible Use, of a Prescriptive
Easement Should be Limited by the Nature of its Historical Use
¶19 In contrast to the broad characterization of a prescriptive
easement’s purpose, our case law suggests that we must define the
specific nature, or scope, of the easement’s historical use with
particularity. This is so because “the extent of a prescriptive [right] is
measured and limited by its historic[al] use during the prescriptive
period.”21 And that right “cannot be enlarged to place a greater
burden or servitude” on the servient estate.22 In other words, the
extent of a prescriptive easement is measured by the burden
historically imposed on the servient estate during the prescriptive
period. Because the ultimate aim in determining the extent (or scope)
of a prescriptive easement is to limit the burden on the servient
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21 Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998); see also
Nyman v. Anchor Dev., L.L.C., 2003 UT 27, ¶ 18, 73 P.3d 357 (“Here,
the 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.’” (citation omitted)).
22Valcarce, 961 P.2d at 312 (internal quotation marks omitted); see
also Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (“The use
during the prescriptive period is the only indication of the nature
and extent of the right acquired. The servient estate can only be
subjected to the easement to the extent to which the easement was
acquired, and the easement owner cannot change this use so as to
put any greater burden upon the servient estate.” (citation omitted)).
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estate to what had been imposed historically, courts should consider
only those factors that are helpful in determining the nature of the
historical burden imposed on the servient estate.23
A. The scope of a prescriptive easement must be limited by the burdens
imposed by its historical use
¶20 There are a number of factors that courts consistently
consider in determining the scope of a prescriptive easement. As
discussed above, the purpose of considering these factors is to
determine the burden that has historically been placed on the
servient estate. With this purpose in mind, courts almost always
consider the physical dimensions of the historical use of the servient
estate. They also consider the frequency and intensity of the use, as
well as the effect of the use on the aesthetic and economic value of
the property.24
¶21 For example, in Crane v. Crane,25 we considered the
appropriate scope of a prescriptive easement for access. The
prescriptive easement in question had been used historically to
transport approximately 150 cattle each spring, and 400 cattle each
fall, across the property.26 Based on this historical use, the district
court held that the easement could be used “one day in the spring of
each year and up to ten days in the fall of each year.”27 And the court
limited the use to “up to 350 head of cattle during the 10 days in the
fall.”28 In reviewing this decision, we held that the district court
“appropriately limit[ed] the easement in gross to the nature and
extent of the use by which it was acquired.”29 But we noted that even
though the district court limited the number of cattle in the fall, it
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23Hubble v. Cache Cty. Drainage Dist. No. 3, 259 P.2d 893, 895 (Utah
1953) (explaining that all of the alleged errors in the case focused on
“substantially the same point”: “the burden on the servient estate”).
24 See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. f
(AM. LAW INST. 2000) (describing the nature of use as the “manner,
frequency, and intensity of the use”).
25 683 P.2d 1062 (Utah 1984).
26 Id. at 1064.
27 Id. at 1064 n.1.
28 Id.
29 Id. at 1068.
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Opinion of the Court
failed to do so in the spring.30 Accordingly, we modified the district
court’s order to include this additional limitation.31 In this way, we
ensured that the burden—stated in terms of the frequency and
intensity of the use—imposed on the servient estate by the judicially
recognized prescriptive easement did not exceed the burden that had
historically been imposed.32
¶22 Even though courts will almost always consider the physical
dimensions of the land used, as well as the frequency and intensity
of that use, the “ultimate criterion” in determining the scope of a
prescriptive easement is that of avoiding increased burdens on the
servient estate.33 So courts should consider any and all factors that
may contribute to that burden.
¶23 For instance, in determining the scope of access easements,
courts often consider the mode of transportation that has historically
been used for access. But, importantly, this factor is considered only
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30 Id.
31 Id.
32 The focus on the burdens imposed by a prescriptive use is
consistent with equitable principles. This is because, by permitting a
prescriptive use to continue uninterrupted for twenty years, the
landowner has demonstrated that the burden imposed by the
prescriptive use is not too onerous to be born. But the same cannot
be said about any change in use that materially increases the burden
imposed on the servient estate. See Harvey v. Haights Bench Irr. Co.,
318 P.2d 343, 349 (Utah 1957) (“Since the right has its inception in the
use during that time, its extent and limitations, its burdens and
benefits are determined by the nature of that use and the
understandings of the parties thereto. Thus any use which would
have probably been interrupted by the owner of the servient estate
had the owner of the dominant estate attempted such use prior to
the expiration of the prescriptive period[] is a use which places a
greater burden on the servient estate and therefore is beyond the
prescriptive right acquired by the dominant estate.” (emphasis
omitted) (citation omitted)).
3328A C.J.S. Easements § 194 (“The ultimate criterion determining
the scope of a prescriptive easement is that of avoiding increased
burdens on the servient tenement while allowing some flexibility in
the use of the dominant tenement.”).
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where the mode of transportation affects the burden placed on the
servient estate. For example, in Gillmor v. Carter, the district court
reserved for trial the question of whether the defendant “had
obtained a prescriptive right to personally travel over [an easement]
by jeep, passenger car or panel truck,” but it enjoined him from
using a road “for the purpose of hauling salt or other minerals from
the Great Salt Lake.”34 The defendant appealed this determination.
On appeal, we explained that although the defendant had testified
that he had used the road for over twenty years, his use of the road
“did not include use of trucks for hauling heavy tonnage.”35 Because
“hauling salt in heavy tonnages” would have imposed an additional
“burden” on the servient estate than what was imposed by his use of
smaller vehicles, we affirmed the district court’s decision.36 Thus our
decision in Gillmor confirms that courts should consider any factors
that may contribute to the overall burden imposed on the servient
estate by the easement.37
B. The subjective purpose in using an easement is relevant only to the
extent it sheds light on the nature of the historical burden imposed on the
servient estate
¶24 Although, in determining the scope of a prescriptive
easement, courts may consider a wide variety of factors, the
subjective purpose for which a prescriptive easement is used should
be considered only to the extent it is helpful in determining the
nature of the burden historically placed on the servient estate. This is
so because the purpose for which an easement holder uses the
servient estate does not, in and of itself, burden the servient estate.
¶25 For example, in Jesurum v. WBTSCC Limited Partnership, the
New Hampshire Supreme Court determined the scope of an
easement providing access to a public beach across a private golf
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34 391 P.2d 426, 426 (Utah 1964).
35 Id. at 427.
36 Id. at 428.
37See also Williams v. Slate, 415 S.W.2d 616, 618 (Ky. 1966) (“The
easement acquired by prescription was for normal rural
transportation purposes. Converting the passway to a haul-road for
heavy coal trucks was an entirely new and heavily burdensome use
unrelated to that which had theretofore existed.”).
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course.38 The owner of the golf course argued that the easement
“should be limited in scope to digging for worms and searching for
shellfish because the first recorded use of [the easement across the
golf course] was limited to those purposes.”39 But the court
explained that this “argument confuse[d] the public use made of [the
golf course] with the public use made of [the beach].” 40 Because the
subjective purpose the prescriptive users may have had in using the
easement was “irrelevant” to the burden imposed by the easement,
the court correctly held that that purpose was “not germane to the
determination of the scope of the easement.”41 So the decision in
Jesurum illustrates that in many cases, the purpose for which a
prescriptive easement is used will not materially contribute to the
burden imposed by that use.
¶26 But there may be instances where the purpose for which an
easement is used provides the best evidence of the burden imposed
on the servient estate. For example, in Bolton v. Murphy we
considered the “nature or character of the use” of an access easement
in a rural farming community.42 In that case, a large number of
plaintiffs claimed a prescriptive easement across the land of a
neighbor to access a public highway.43 The group of plaintiffs had
used the easement for roughly fifty years to access their respective
farms and homes.44 Because the easement had been used so widely
and for so long, the court was forced to articulate the scope of the
easement in broad terms. It held that the easement could be used
“for the purposes that roads are ordinarily used for by farmers in the
vicinity.”45 In other words, in the absence of evidence of more
specific limiting factors, the court in Bolton properly considered the
purposes for which roads in the area were typically used as the best
evidence of the burden imposed on the servient estate.
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38 151 A.3d 949, 958 (N.H. 2016).
39 Id.
40 Id.
41 Id.
42 127 P. 335, 339 (Utah 1912).
43 Id. at 336–37.
44 Id.
45 Id. at 339.
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¶27 Accordingly, in determining what the historical burden has
been on a servient estate, courts may consider the subjective purpose
for which an easement is used, but only to the extent it provides
relevant evidence of the scope of that burden.
C. The use of the dominant estate is likewise relevant only to the extent it
sheds light on the nature of the historical burden imposed on the servient
estate
¶28 Similarly, an easement holder’s use of the dominant estate
may be considered in determining the scope of an easement, but
only to the extent it provides information regarding the nature of the
burden on the servient estate. Our decision in Robins v. Roberts
illustrates this point.46
¶29 In Robins, the owner of the dominant estate replaced an
earthen dam on his own property with a larger cement dam.47
Although the owner of the dominant estate had previously acquired
a prescriptive easement to flood a portion of the servient estate by
using his dam, the owner of the servient estate attempted to restrain
the owner of the dominant estate “from maintaining” the new
cement dam.48 Because the new cement dam was “five or six inches
higher than the old one,” the owner of the servient estate argued that
its construction had enlarged the flooding easement on the servient
estate.49 But we disagreed. Although we acknowledged that the new
dam was “five or six inches higher than the earthen dam it
replaced,” we explained that “it matters not that the dam itself is
larger or occupies more ground” because the dam was not on the
servient estate.50 The only thing that was relevant, we explained, was
whether the water flooding the servient estate exceeded the extent of
the flooding “that was done by use of the old dam.”51 Because the
evidence indicated that “[s]ubstantially the same amount of land
[was] irrigated as was irrigated theretofore,” we refused to order the
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46 15 P.2d 340, 340 (Utah 1932).
47 Id.
48 Id.
49 Id. at 342.
50 Id.
51 Id.
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owner of the dominant estate to remove his new dam. 52 So our
decision in Robins illustrates that the nature of the usage of the
dominant estate is irrelevant except to the extent it provides
information that would be helpful in determining the burden placed
on the servient estate.
¶30 The reasoning in Robins is consistent with the approach
followed in other jurisdictions. For example, in Gaither v. Gaither, a
California court of appeals held that a prescriptive easement that had
formerly been used to access the dominant estate, which had
historically been used “for farming purposes,” could also be used to
access recently constructed rental units on the property.53 In so
holding, the court explained that the change did not increase the
burden on the servient estate because the change did not affect “the
physical objects [(vehicles)] passing over the driveway.54 In other
words, the court found that the purpose for which the dominant
estate was being used was irrelevant to a determination of the
burden that had historically been imposed on the servient estate. As
the decision in Gaither illustrates, our case law is consistent with the
approach generally followed in other jurisdictions.
¶31 Accordingly, the purposes for which the dominant estate is
used is relevant to a determination of the permitted uses of a
prescriptive easement only to the extent it provides information
regarding the nature of the burden imposed on the servient estate. In
other words, where a change in the purpose for which a dominant
estate is used does not increase the burden imposed on the servient
estate, that change is irrelevant in determining the scope of a
prescriptive easement.55
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52 Id.
53 332 P.2d 436, 438 (Cal. Dist. Ct. App. 1958).
54 Id.
55 See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. f
(AM. LAW INST. 2000) (“If the change in use of the dominant estate, or
enterprise benefited by the easement, brings no change in the
physical use of the easement, the dominant owner may continue to
use the easement.”).
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D. Utah follows the majority rule that the nature of a use can be altered
reasonably
¶32 Although the ultimate criterion in determining the scope of
a prescriptive easement is to limit the burden imposed on the
servient estate to what has been imposed historically, Utah allows
reasonable changes to be made by both the easement holder and the
owner of the servient estate so long as it does not materially increase
the burden imposed on either party.
¶33 We have held that a “right of way for one purpose gained
by user cannot be turned into a right of way for another purpose if
the latter adds materially to the burden of the servient estate.”56 We
have also held that “an alteration in the easement requires the
consent of the other party unless it can be considered to be of such an
immaterial character as would not interfere with the reasonable
enjoyment of the easement.”57 And we have held that the “right of
the easement owner and the right of the land-owner are not absolute,
irrelative, and uncontrolled, but are so limited, each by the other,
that there may be a due and reasonable enjoyment of both.”58 As
these holdings indicate, in considering changes to the use of an
easement or the servient estate, we apply a flexible rule that seeks to
accommodate reasonable changes in use.
¶34 This rule was applied in our 1976 decision in North Union
Canal Co. v. Newell.59 In that case a canal company sought to enjoin
the owners of the servient estate from maintaining a fence around
their property because it placed a burden on the canal company’s
easement right to enter the property for the purpose of performing
maintenance on its canal.60 In considering this argument, we
observed that whenever “there is ownership of property subject to
an easement there is a dichotomy of interests, both of which must be
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Nielson, 141 P.2d at 701 (citation omitted) (internal quotation
56
marks omitted).
57McBride v. McBride, 581 P.2d 996, 998 (Utah 1978) (emphasis
added) (footnotes omitted).
58Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158
(Utah 1946).
59 550 P.2d 178 (Utah 1976).
60 Id. at 179.
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Opinion of the Court
respected and kept in balance.”61 We then noted that the fence
constructed on the servient estate “would interfere with the [canal
company’s] use and enjoyment of its easement.”62 “From this,” we
explained, “the logical conclusion would seem to be that the fence
should be removed.”63 But we declined to order the fence’s removal.
¶35 In declining to order “such a stringent measure,” we
explained that “the object to be desired [in easement cases] is to find
some accommodation of those conflicting interests, to the maximum
advantage and to the minimum disadvantage[] of both parties.”64 So
with this object in mind, we declined to order the removal of the
fence, but we ordered the owners of the servient estate to maintain
gates “at reasonable intervals in the fence along the canal bank to
allow the [canal company] access thereto as its needs may arise.”65
Accordingly, our decision in North Union Canal Co. confirms that, in
considering changes to the use of an easement or the servient estate,
we apply a flexible rule that seeks to accommodate reasonable
changes in use. And our case law suggests that a reasonable change
in use is any change that does not materially increase the burden on
the servient estate or materially restrict the use of the easement.
¶36 This flexible approach is consistent with the approach
followed in a majority of jurisdictions.66 For example, the Alaska
Supreme Court has held that “the use made of a prescriptive
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61 Id.
62 Id.
63 Id.
64 Id. at 179–80.
65 Id. at 180.
66 See RESTATEMENT (FIRST) OF PROPERTY § 477 cmt. b (AM. LAW
INST. 1944) (“Yet, no use can ever be exactly duplicated. If any
practically useful easement is ever to arise by prescription, the use
permitted under it must vary in some degree from the use by which
it was created. Hence, the use under which a prescriptive interest
arises determines the general outlines rather than the minute details
of the interest.”); RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10
(AM. LAW INST. 2000) (“The manner, frequency, and intensity of the
use may change over time to take advantage of developments in
technology and to accommodate normal development of the
dominant estate or enterprise benefited by the servitude.”).
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Opinion of the Court
easement may evolve beyond the original prescriptive uses, [but]
new uses cannot substantially increase the burden on the servient
estate.”67 And a Connecticut appellate court has explained that one
“who has an easement by prescription has the right to do such acts
that are reasonable and necessary to effectuate that party’s
enjoyment of the easement unless it unreasonably increases the
burden on the servient tenement.”68
¶37 According to the Maine Supreme Judicial Court, this flexible
approach is essential to preserve the usefulness of a prescriptive
right over time.69 And we endorsed a similar rationale in our Big
Cottonwood Tanner Ditch Co. case.70 In that case we cited the rule that
“the extent of an easement acquired by prescription is measured and
limited by the use made during the prescriptive period.”71 But we
cautioned against applying this rule “with absolute strictness”
because doing so would render the prescriptive right “of no utility
whatsoever.”72 Accordingly, our decision in Big Cottonwood Tanner
Ditch Co. suggests that prescriptive rights, where established, should
be construed to preserve their usefulness over time.
¶38 In sum, when asked to determine the scope of a prescriptive
easement, or whether a particular use is permitted under that
easement, courts should consider any and all factors that are helpful
in determining the extent of the historical burden on the servient
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67 Price v. Eastham, 75 P.3d 1051, 1058 (Alaska 2003).
68Hoffman Fuel Co. of Danbury v. Elliott, 789 A.2d 1149, 1158
(Conn. App. Ct. 2002) (citation omitted).
69 Gutcheon v. Becton, 585 A.2d 818, 822 (Me. 1991) (“In order to
remain useful to the dominant estate it serves, a prescriptive right of
way must encompass some flexibility of use, and adapt to natural
and foreseeable developments in the use of the surrounding land.
When presented with an alleged overburdening of a prescriptive
easement, the factfinder must balance the prior use of the right of
way established during the prescriptive period against any later
changes in the method of use that unreasonably or unforeseeably
interfere with the enjoyment of the servient estate by its current
owner.”).
70 174 P.2d at 157.
71 Id.
72 Id.
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Opinion of the Court
estate. Factors that courts should consider in almost every case are
the physical dimensions of the prescriptive use, the frequency and
intensity of the use, and the effect of the use on the aesthetic and
economic value of the property. Additionally, courts may also
consider the subjective purpose for using the easement, as well as
the nature of the use of the dominant estate, but only to the extent
those factors are helpful in determining the nature of the burden on
the servient estate. Finally, in determining the scope of a prescriptive
right, courts should take a flexible approach that permits changes of
use so long as those changes do not materially burden the servient
estate or materially interfere with the prescriptive right.
IV. We Reverse the Judgment of the District Court and Remand for a
New Determination Regarding the Scope of the Prescriptive
Easement in this Case
¶39 With the correct approach to prescriptive easements in
mind, we now consider the district court’s determination in this case.
In determining the easement’s historical usage, the court found that
“almost all of the relevant evidence” came from Mr. Carroll’s
deposition testimony. Based on this testimony, the court found that
Mr. Carroll’s uses had “almost all been farming or ranching related
uses, along with trips to and from the SRB Parcel at random times
and for random reasons.” And after defining the purpose of the
easement in this way, the court held the following: (1) the easement
was limited to “vehicular travel in daily uses for farming and
ranching purposes, and uses at random times for random reasons”
and (2) “[m]ultiple house buildings on the SRB Parcel are outside the
scope of the prescriptive easement’s historic[al] usage, but a camp or
other [temporary] building or vehicle that is ancillary to farming and
ranching uses on the SRB Property would not be outside the scope.”
The court erred in making both of these determinations.
A. The district court incorrectly limited the use of the access easement to
only those people who would use it with the subjective purpose to farm or
ranch on the SRB property
¶40 First, the court erred by limiting the use of the access
easement to only those people who would use it with the subjective
purpose to farm or ranch on the SRB property. As we discussed
above, the subjective purpose for which an easement is used is
relevant only to the extent it provides evidence regarding the nature
of the burden imposed on the servient estate. Thus the court erred in
focusing on that fact to the exclusion of all other factors regarding
the historical burden on the servient estate.
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Opinion of the Court
¶41 To be clear, we are not suggesting that, on remand, the court
cannot consider the prescriptive users’ subjective purpose in using
the easement. The fact that the easement was historically used for
ranching and farming could be helpful in establishing certain aspects
of the burden imposed. For example, evidence related to farming or
ranching activities on the SRB property could suggest that,
historically, the physical dimensions of the easement were wide
enough to allow large trucks, loaded with tractors or crops, to pass
through. And, in the absence of better evidence, the fact that the SRB
property was used for ranching or farming could also suggest that
the nature of the use of the easement was seasonal and that the
frequency of the use was less than that of a road leading to a
residential or commercial area.73
¶42 But the fact that the easement was used to access the SRB
property by people having the subjective purpose to ranch or farm
does not, in and of itself, burden the Spencer property. And for this
reason, the district court erred in limiting SRB’s future use of the
easement to those who use it intending to farm or ranch.
B. The district court incorrectly limited SRB’s use of the dominant estate
¶43 Second, the district court erred in limiting SRB’s use of
SRB’s own property. Although the limited scope of a prescriptive
easement could, in practical effect, limit the uses to which SRB’s
property could be used, those limitations are not legally imposed by
nature of SRB’s prescriptive rights in the Spencer property. As we
held in our decision in Robins v. Roberts, “it matters not” to the
Spencers what SRB does on SRB’s property because the Spencers
have no legal right burdening that property.74 And even though
certain uses of the SRB property could lead to incidental increases on
the burden imposed by the easement on the Spencer property, there
is no indication that such an increase has occurred or would occur
were SRB to build a few family cabins on the SRB property.
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73 We note that, consistent with Utah’s flexible approach to
easements—which seeks to resolve disputes to the maximum
advantage and to the minimum disadvantage of both parties—a
party’s use of an easement that has historically been used only
seasonally should be limited to that seasonal use only where more
frequent use would materially increase the burden on the servient
estate.
74 15 P.2d 340, 342 (Utah 1932).
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Opinion of the Court
¶44 The unrefuted deposition testimony of Norman Carroll
informs us that the easement was used “sometimes daily in the
spring and the harvest time.” At another point, he testified that he
traveled to his property “all the time”; that he used the easement
“without any restrictions”; and that there was never a time that he
was not permitted to use the property. And at the end of his
testimony, he again testified that he used the road “unrestricted for
all th[ose] years,” that he “never had to ask for permission,” and that
he “used it for the operation of [the SRB] property.”
¶45 In addition to testimony regarding the frequency of the
easement’s use, there is ample testimony regarding the intensity of
that use. Mr. Carroll testified that he regularly drove “big trucks in”
across the property. He also testified that he used the road to
transport “all the farm equipment,” “harvesting equipment,” and
“the camps.” And that it was used to haul water to the livestock and
to haul off crops, as well as to transport horses in horse trailers.
¶46 So the record contains ample evidence regarding the nature
of the burden imposed on the Spencer property by the historical use
of the easement. Because this evidence speaks more directly to the
burden imposed on the Spencer property than does evidence
regarding the historical use of SRB’s property, the evidentiary value
regarding the use of SRB’s property appears to be minimal. And,
even more importantly, the Spencers have failed to point to any
evidence to suggest that a conversion of the SRB property from a
farming and ranching property to a cabin property, with a few
cabins, would increase the burden on the servient estate. So the
district court erred in imposing restrictions on how SRB may use
SRB’s property.
¶47 In sum, the district court erred by incorrectly limiting the
use of the easement to only those people who would use it for the
purposes of ranching and farming and by limiting SRB’s use of its
own property.
¶48 Because the district court erred in describing the scope of
the prescriptive easement in this case, we remand for a new
determination. On remand, the district court should be careful to
consider only those factors that provide information regarding the
burden that has been imposed historically by the easement on the
Spencer property. Because the physical dimensions of the easement
do not appear to be disputed, this determination should focus on the
frequency and intensity of the use, the effect of the use on the
aesthetic and economic value of the property, as well as any other
factor relevant in determining the burden the use of the easement
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Opinion of the Court
has historically imposed on the servient estate. Additionally, in
making this determination, the district court should employ a
flexible approach that aims “to find some accommodation of [the
parties’] conflicting interests, to the maximum advantage and to the
minimum disadvantage[] of both parties,”75 so that the prescriptive
right retains its “utility”76 for SRB without materially adding to the
burden imposed on the Spencers.77
Conclusion
¶49 When asked to determine the scope of a prescriptive
easement, or whether a particular use is permitted under that
easement, the ultimate aim of courts should be to preserve the utility
of the prescriptive right without materially adding to the burden
imposed on the servient estate. For this reason, the focus in a court’s
analysis should be on the burden historically imposed on the
servient estate by the easement’s use. In conducting this analysis,
courts should almost always consider the physical dimensions of the
prescriptive use, the frequency and intensity of the use, and the
effect of the use on the aesthetic and economic value of the property.
Additionally, courts may consider the subjective purpose for using
the easement, as well as the nature of the use of the dominant estate,
but only to the extent those factors are helpful in determining the
nature of the burden on the servient estate. Finally, in determining
the scope of a prescriptive right, courts should take a flexible
approach that permits changes of use so long as those changes do
not materially burden the servient estate or materially interfere with
the prescriptive right. Because the district court’s determination of
the scope of the prescriptive easement in this case was inconsistent
with these principles, we remand for a new determination.
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75 North Union Canal Co. v. Newell, 550 P.2d 178, 180 (Utah 1976).
76Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 157
(Utah 1946).
77 Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943).
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