To establish a prescriptive easement, a person must show, “by clear and convincing evidence,” Buckley v. Cox, 247 P.2d 277, 279-80 (Utah 1952), that his “use of another’s land was open, continuous, and adverse under a claim of right for a period of twenty years.” Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998); see also Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998). However, “once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse.” Id. The burden then shifts to the property owner who opposes the easement to “establish that the use was initially permissive.” Id. at 311-12. Each of the elements of prescriptive easement must be proven by clear and convincing evidence. Lunt v. Lance, 2008 UT App 192, ¶ 18, 186 P.3d 978.
While the conclusion that a prescriptive easement exists is a question of law, “it is so fact-dependent that trial courts are generally accorded ‘a broad measure of discretion when applying the correct legal standard to the given set of facts’ and are only overturned if the trial court’s decision was in excess of this broad discretion.” Lunt v. Lance, 2008 UT App 192, ¶ 9 (quoting Valcarce, 961 p.2d at 311).
Jacob v. Bate provides helpful analysis. 358 P.3d 346 (Utah App. 2015). The parties owned adjoining properties. Jacob sued Bate for their use of an alley on Jacobs’ property. Initially, an investment company owned both the Bates’ property and the alleyway (right of way). Utah County took title to the alleyway at some point, and then Jacobs’ predecessor acquired the property and alleyway thereafter. Around the same time, Bates’ grandfather and another gentlemen purchased the Bate Property. The real estate contract purported to grant a perpetual right of way over the alleyway. At the time of sale, however, the owner of the Bate Property no longer owned the alleyway, and thus lacked legal authority to transfer the same. For over 30 years, the Bate family operated a hardware store located on the Bate Property, using the alleyway for various purposes. A family member then purchased the Jacob Property, out of which he operated a grocery store for years, also using the alleyway. The Jacob Property was then deeded several times without any reference to a right of way until 1987, when it was deeded to the Jacobs “subject to a right of way” over the alleyway. 358 P.3d 346, ¶ 7. At that time, there was an unlocked chain placed across the alleyway between two concrete posts. After Jacobs’ purchase, the Bates placed a lock on the chain.
The Utah Court of Appeals began with an analysis of the presumption of adverse use, stating that “for a use to be adverse, ‘the use must be against the owner as distinguished from under the owner.'” 2015 UT App 206, ¶ 18 (quoting Zollinger v. Frank, 175 P.2d 714, 715 (Utah 1946) (emphasis in original). Jacob referenced the general rule that “where a claimant has shown an open and continuous use of the land for the prescriptive period . . . the use will be presumed to have been against the owner.” Id. (quoting Zollinger, 175 P.2d at 715). The Jacob Court observed that although it is sometimes referred to as a hostile use, “it is not necessary that there be any open hostility,” such as with use of force, or any overt physical or verbal opposition. Id. The “parties or their predecessors” may even be sociable or cordial with each other-this does not prevent the prescriptive right from arising under the presumption of adverse use. Id.
Elsewhere, in Valcarce v. Fitzgerald, the Utah Supreme Court stated that it had “affirmed findings of adverse use and, thus, prescriptive right in other cases in which the former landowners displayed ‘neighborliness.'” 961 P.2d 305, 312 (Utah 1998). The court continued: “Although each of these factual situations involved acts of neighborly accommodation and cordial relations, we nevertheless upheld the adverse presumption in the absence of sufficient proof that the use was initially permissive. As we stated in Richins, the fact that the parties were initially friendly or cordial with one another does not prevent a prescriptive right from arising.” Id.
The Jacob court explains that once the presumption of adverse use has been established, “only then” does the burden shift to the landowner opposing the easement to establish that the use was “initially permissive.” Id. at ¶ 19.
Lewis P. Reece
Snow Jensen & Reece
Attorneys at Law