Jacob v. Bate

2015 UT App 206

THE UTAH COURT OF APPEALS

WILLIAM T. JACOB AND JANEANE W. JACOB,
Plaintiffs and Appellants,
v.
HELEN T. BATE, ROBERT T. BATE, AND BRAD TAYSOM,
Defendants and Appellees.

Opinion
No. 20130868-CA
Filed August 13, 2015

Fourth District Court, Provo Department
The Honorable Steven L. Hansen
No. 100404120

Randall K. Spencer and Kara H. North, Attorneys
for Appellants
Robert L. Jeffs, Attorney for Appellees

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 Appellants William T. Jacob and JaNeane W. Jacob appeal
from the trial court’s decision that Appellees Helen T. Bate,
Robert T. Bate, and Brad Taysom obtained a limited prescriptive
easement in the Jacobs’ open alleyway. We affirm.

BACKGROUND

¶2 Appellants filed this action seeking to quiet title to real
property located on Main Street in American Fork, Utah. 1

1. On appeal from a bench trial, we recite the facts in the light
most favorable to the trial court’s factual findings. Bel Courtyard
Invs., Inc. v. Wolfe, 2013 UT App 217, ¶ 2 n.1, 310 P.3d 747.
 Jacob v. Bate

Appellants own a commercial building located at 76 West Main
Street and an adjacent alley (the Jacob Property). The Bates own
the property immediately to the west of the Jacob Property,
consisting of two apartment buildings connected by a carport
and an “L” shaped commercial building (the Bate Property).
Taysom is the Bates’ tenant on the Bate Property. 2 The dispute in
this case centers on Appellees’ right to use an alley on the Jacob
Property—a “10 foot by 130 foot alley” that runs north to south
along the west edge of the Jacob Property and abutting the Bate
Property (the Alleyway). A three-foot wide alley on the
Bate Property connects to the Alleyway between the Bates’
apartment buildings and their commercial building. The
apartment buildings’ carport also includes a doorway providing
access to the Alleyway.

2. Our review of the record indicates that Taysom agreed to
purchase the Bate Property from the Bates in 2006. But it does
(continued…)

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 Jacob v. Bate

¶3 In 1913, an investment company owned both the Bate
Property and the Alleyway. Due to unpaid property taxes, Utah
County took title to the Alleyway in January 1935. Reva Beck
Bosone, 3 the Jacobs’ predecessor-in-interest, acquired the Jacob
Property, including the Alleyway, between 1939 and 1940.

¶4 In 1936, William Preston and Elmer Bate, Robert Bate’s
grandfather, purchased the Bate Property. The real estate
contract for the sale purported to grant a perpetual right-of-way
over the Alleyway. At the time of the sale, however, the owner
of the Bate Property no longer owned the Alleyway as a result of
the tax sale. The seller of the Bate Property therefore lacked the
legal authority to transfer any interest in the Alleyway. In 1951,
Elmer Bate conveyed the Bate Property to Robert Bate’s father.
The deed also purported to convey the right-of-way over the
Alleyway.

¶5 In approximately 1945, the Bate family began to operate a
hardware store out of the commercial building located on the
Bate Property. Robert Bate’s father used the Alleyway for
loading and unloading, picking up and dropping off goods
transported to and from another store in Salt Lake City, and
parking cars occasionally. Robert Bate’s father would also use

(…continued)
not appear that a deed conveying the Bate Property to Taysom
has ever been recorded, as the Bates remain the record title
holders. We therefore consider Taysom the Bates’ tenant for
purposes of this decision. This distinction does not, however,
substantively affect our analysis.

3. Reva Beck Bosone has considerable significance beyond her
minor role in one of the relevant title chains in this case. Well
known in Utah legal circles, Bosone was Utah’s first female
judge and first female congressional delegate. Reva Beck Bosone:
A “First” for Utah, United States Capitol Historical Society
(Mar. 8, 2012), http://uschs.wordpress.com/2012/03/08/reva-beck-
bosone-a-first-for-utah/.

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 Jacob v. Bate

the Alleyway to access or perform maintenance on the
apartment buildings on the Bate Property. The Bate family
continuously used the Alleyway for these purposes until
sometime in 1977, when Robert Bate’s brother purchased the
Jacob Property, took over operation of the family’s hardware
store, and moved it next door to the commercial building located
on the Jacob Property.

¶6 In the 1950s, a grocery store operated out of the Jacob
Property. The grocery store took deliveries through the Alleyway.
During the time that both the hardware store and the grocery
store operated, the two businesses accommodated each other’s
use of the Alleyway.

¶7 The Jacob Property was deeded several times without any
reference to a right-of-way until 1987. In July 1987, Appellants
acquired the Jacob Property, including the Alleyway, by
warranty deed. The conveyance to Appellants provided that the
Jacob Property was “SUBJECT to a Right of Way” over the
Alleyway in favor of the Bate Property. At that time, there was
an unlocked chain placed across the Alleyway between two
concrete posts. While it is unclear who originally placed the
chain across the Alleyway, how long the chain had been there, or
the purpose of the chain, William Jacob placed a lock on the
chain in July 1987 after Appellants purchased the Jacob Property.

¶8 In 2001, Taysom began to rent part of the commercial
building located on the Bate Property for his automotive
business. During his time as a tenant, Taysom would perform
maintenance on the Bate Property. When he needed to access the
Alleyway for maintenance, Taysom would “go over” the chain
or “walk through” if the chain was not in place. In November
2006, Taysom agreed to purchase the Bate Property.

¶9 In November 2006, Appellees’ attorney sent a letter to
Appellants objecting to the lock on the chain as it interfered with
Appellees’ use of the Alleyway. William Jacob responded to the
letter and acknowledged that Appellees had a “reasonable right
to pass over a portion of [the] land” and that “[d]uring the past
twenty years the chain has been positioned in such a manner

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 Jacob v. Bate

that can be stepped over and your client has enjoyed additional
access through an adjoining door to pass over a portion of [the]
land.” William Jacob also stated that “from time-to-time, and
based upon reasonable request, I have opened the chain to
provide reasonable access to [Appellees], various workmen,
utility companies, and others.” William Jacob concluded his
letter, stating that he hoped “[Appellees] will continue to use the
right to pass over my land in accordance with the same
reasonable and usual enjoyment standard, as established during
the past 20 years.”

¶10 During the summer of 2007, Taysom requested a key to
the lock on the chain across the Alleyway. When he did not
receive a key to remove the lock, Taysom began breaking the
chain to access the Alleyway. Taysom also admitted to cutting
the concrete posts and the loop connecting the chain to the posts.
The Jacobs called the police on about twenty separate occasions
in response to Taysom’s cutting of the chain and posts.

¶11 Several years later, Appellants filed this action seeking to
quiet title to the Alleyway after William Jacob discovered the
defect in the 1935 deed’s ultra vires grant of a right-of-way. In
the alternative, Appellants sought “to establish title through
adverse possession” and requested “damages for civil trespass
and injunctive relief.” Appellants filed a motion for summary
judgment on their claims. The trial court granted Appellants’
motion with respect to the quiet-title claim, stating that there
was no express easement or right-of-way over the Alleyway, but
denied Appellants’ motion as to the claims of trespass and
adverse possession.

¶12 After a bench trial, the court issued a written decision
concluding that a prescriptive easement in favor of the Bate
Property had developed for “ingress and egress of the
[Alleyway] for proper maintenance of the adjacent buildings.”
The court also concluded that Appellants “were one year short
of the required twenty years” to extinguish the prescriptive
easement. The court declined to award damages for trespass.
Appellants now appeal.

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 Jacob v. Bate

ISSUES AND STANDARDS OF REVIEW

¶13 First, Appellants argue that the trial court’s conclusion
that Appellees had obtained a prescriptive easement in the
Alleyway was erroneous because (1) the court incorrectly
applied a presumption of adverse use rather than a presumption
of permissive use and (2) the finding that a prescriptive
easement existed was not supported by sufficient evidence.
“[W]hether the trial court applied the proper legal standard is a
question of law that is reviewed for correctness.” Chen v. Stewart,
2004 UT 82, ¶ 19, 100 P.3d 1177. While the conclusion that a
prescriptive easement exists is a question of law, see Valcarce v.
Fitzgerald, 961 P.2d 305, 311 (Utah 1998), “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, 186 P.3d 978 (quoting Valcarce, 961 P.2d at 311).
“An appellate court will reverse a trial court’s decision that clear
and convincing evidence was presented only if that decision is
clearly erroneous,” notwithstanding the clear and convincing
standard of proof below. Id. ¶ 18. “To qualify as clearly
erroneous a trial court’s findings [must be] either against the
clear weight of the evidence or [must] induce a definite and firm
conviction that a mistake has been made.” Id. (alterations in
original) (citation and internal quotation marks omitted). But a
finding is not clearly erroneous if, viewing the evidence in the
light most favorable to the trial court’s findings, the evidence is
legally sufficient to support the finding. Jouflas v. Fox Television
Stations, Inc., 927 P.2d 170, 174 (Utah 1996).

¶14 Second, Appellants claim that the trial court erred in
failing to find that the prescriptive easement was extinguished.
They specifically challenge the trial court’s finding that the
prescriptive period for extinguishment began to run in 1987,
rather than 1982 as they had argued. Whether specific actions
constitute adverse use sufficient to extinguish an easement is a
question of fact. See Public Storage, Inc. v. Eliot St. Ltd. P’ship, 567
A.2d 389, 381 (Conn. App. Ct. 1989). “[W]e review the factual

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 Jacob v. Bate

findings of a trial court under the clearly erroneous standard.”
Jouflas, 927 P.2d at 174.

¶15 Last, Appellants argue that the trial court should have
awarded them damages for trespass based on Taysom’s cutting
the concrete blocks and chains in the Alleyway. The owner of
property subject to an easement may recover damages if the use
of the easement is so “‘unreasonable in that it will unnecessarily
damage the servient estate.’” Farmers New World Life Ins. Co. v.
Bountiful City, 803 P.2d 1241, 1249 (Utah 1990) (quoting Big
Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 160 (Utah
1946)). Whether Taysom’s actions in accessing the Alleyway
were reasonable is a question of fact, and we will not overturn
the trial court’s factual finding unless it is clearly erroneous or
against the clear weight of the evidence. See id.

ANALYSIS

I. The Trial Court Correctly Determined That Appellees
Obtained a Prescriptive Easement.

¶16 To establish a prescriptive easement, the claimant must
show, “by clear and convincing evidence,” Buckley v. Cox, 247
P.2d 277, 279–80 (Utah 1952), that its “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). Appellants contend that the trial court erred by presuming
adverse use and that the evidence adduced at trial was
insufficient to support the trial court’s findings.

A. Presumption of Adverse Use

¶17 Appellants first argue that the trial court erred by
presuming adverse use and that the court should have instead
presumed permissive use. “[O]nce a claimant has shown an
open and continuous use of the land under claim of right for the
twenty-year prescriptive period, the use will be presumed to
have been adverse.” Valcarce, 961 P.2d at 311; see also Richins v.
Struhs, 412 P.2d 314, 315 (Utah 1966) (holding that “when a

20130868-CA 7 2015 UT App 206
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claimant has shown that such a use has existed peaceably and
without interference for the prescriptive period of 20 years, the
law presumes that the use is adverse to the owner[] and that it
had a legitimate origin” (footnotes omitted)); Lunt v. Kitchens,
260 P.2d 535, 537 (Utah 1953) (“The fact that the grantor with
knowledge of such use, makes no protest against it is proof of his
recognition of a claim of right in the grantee. In other words, it is
conclusively presumed from the landowner’s acquiescence for
the defined period of time in the other’s use[] of his land, he
having the right and power to stop such user, that it is a rightful
user.”).

¶18 The Utah Supreme Court has stated that for a use to be
adverse, “the use must be against the owner as distinguished
from under the owner.” Zollinger v. Frank, 175 P.2d 714, 715 (Utah
1946) (emphasis in original). 4 With this distinction in mind, our
supreme court affirmatively established a presumption of
adverse use: “where a claimant has shown an open and
continuous use of the land for the prescriptive period (20 years
in Utah) the use will be presumed to have been against the
owner.” Id. at 716. Thus, “to prevent the prescriptive easement
from arising,” “the owner of the servient estate . . . has the
burden of showing that the use was under him instead of against
him.” Id.; see also Crane v. Crane, 683 P.2d 1062, 1065 (Utah 1984).
To be adverse or “against” the servient estate, “the use must
have been such that it is plainly apparent that the claimant is
asserting a right so the servient owner either knows or should
know that his property is being so used.” Richins, 412 P.2d at
316. Even though it is sometimes referred to as a hostile use, it is

4. The Zollinger court also grappled with courts’ sometimes
inconsistent terminology used to describe this element of a
prescriptive easement. Zollinger v. Frank, 175 P.2d 714, 715–16
(Utah 1946). The court explained that “[r]egardless of the words
used to characterize this element of the nature of the use
necessary to give rise to a prescriptive easement,” the element is
established if the use is “against the owner” of the servient
estate. Id. at 715.

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 Jacob v. Bate

not necessary that there be any open hostility “in the use of force
or any overt physical or verbal opposition.” Id. The fact that the
parties or their predecessors were sociable, “or even cordial with
each other,” does not prevent a prescriptive right from arising
under the presumption of adverse use. See id.; see also Orton, 970
P.2d at 1259 (ruling that a party’s use of a common lane was
adverse even when the common lane was created through an
amicable agreement and both parties jointly used the common
area for decades).

¶19 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.” Valcarce, 961 P.2d at 311–12. If the owner of the
servient estate “sustains that burden and overcomes the
presumption by proof that the use was initially permissive, then
the burden of going forward with evidence and of ultimate
persuasion shifts back to the claimant to show that the use
[again] became adverse and continued for the prescriptive
period.” Richins, 412 P.2d at 316.

¶20 Appellants claim that the court erred by applying the
presumption of adverse use. They argue that, under Lunt v.
Kitchens, 260 P.2d 535 (Utah 1953), the trial court was required to
apply a presumption of permissive use. They rely on Kitchens for
the proposition that “[w]here a person opens the way for use of
his own premises and another uses it without interfering with
the landowner’s use or causing him damage, the presumption is
that the use was permissive and in absence of proof to the
contrary, the person so using it does not acquire a right of way
by prescription.” Id. at 538.

¶21 However, when viewed in context, it is apparent that the
presumption of permissive use applies to cases where there is
evidence of a special relationship, such as a license. In Kitchens, a
landowner brought suit to enjoin the defendants from using a
driveway on her property. Id. at 536. The court held that
beginning in 1920, the landowner’s predecessors-in-interest
granted a license, or at the very least, consent, to the defendants’
predecessors-in-interest to use the driveway on the landowner’s

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property. Id. at 537–38. The court explained that if “the
landowner consents to the use of his land, then the right created
is a license and a prescriptive right cannot arise from a license
unless the licensee renounces openly his claim under the
license.” Id. at 537. Because of this distinction, Utah courts have
differentiated between consent or license and mere acquiescence.
See Zollinger, 175 P.2d at 715.

¶22 Thus, the presumption of adverse use applies once the
allegedly adverse user has shown an open and continuous use of
the land under claim of right for the twenty-year prescriptive
period, absent evidence of a license or consent of the servient
landowner. See Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah
1998); see also Kitchens, 260 P.2d at 537–38. Here, Robert Bate
testified that his family’s use of the Alleyway was “ongoing from
at latest 1948” through 1977. Robert Bate testified that he
personally observed his father using the Alleyway continually
for building maintenance through 1959. While attending college
from 1959 through 1963, Robert Bate would visit his parents and
continued to see his parents use the Alleyway. Though Robert
Bate moved to California for a number of years after college, he
testified that he visited his parents a few times a year during
which time he saw no change in their usage of the Alleyway.
When Robert Bate moved back to Utah, he worked part-time for
his father and observed the same use of the Alleyway through
approximately 1966 or 1967, at which time Robert Bate moved to
Colorado. While living in Colorado, Robert Bate returned to
Utah several times a year, and observed no change in his
parents’ operation of the store with respect to the Alleyway.
Robert Bate’s father and mother continued to operate the
hardware store until at least 1977 when his brother purchased
the Jacob Property and moved the hardware store to the Jacob
Property. The court found that there was “no indication of use
restriction against [Appellees’] use during a twenty year period
from 1948 onward,” and the “[u]se appears to have been
unmolested” for at least twenty years.

¶23 To rebut the presumption of adverse use, Appellants
argue that they presented evidence that Appellees’ use of the

20130868-CA 10 2015 UT App 206
 Jacob v. Bate

Alleyway was permissive. During cross-examination, Robert
Bate testified that use of the Alleyway was “kind of a mutual
thing” and each side accommodated the other’s use. Appellants’
attorney asked whether “the supermarket [was] fine with [the
Bates] using the alley” and whether “[t]hey permitted it.” While
Robert Bate answered in the affirmative, the trial court found
that this testimony was not evidence of permission, but of
accommodation. The trial court found that no evidence was
presented that any owner of the Jacob Property ever gave
“permission” to the Bate Property owners or tenants to use the
Alleyway sufficient to “pro[ve] that the use was initially
permissive.” 5 See Richins v. Struhs, 412 P.2d 314, 316 (Utah 1966);
see also Orton v. Carter, 970 P.2d 1254, 1259 (Utah 1998).

¶24 Appellants failed to overcome the presumption of adverse
use by presenting evidence of their predecessors granting Robert
Bate’s parents explicit permission to use the Alleyway. 6 Thus,

5. To the extent that William Jacob’s letter to Appellees’ attorney
recognizing that Appellees had a “reasonable right to pass over a
portion of [the] land” could be construed as evidence that
William Jacob allowed Appellees’ permissive use of the
Alleyway, Appellees’ prescriptive easement arose no later than
1977—before Appellants owned the Jacob Property. Thus, any
evidence that William Jacob gave Appellees permission to use
the Alleyway is irrelevant to the question of whether a
prescriptive easement over the Alleyway arose between 1948 and
1977.

6. And the attempted grant of a right-of-way over the Alleyway
in the 1936 conveyance of the Bate Property also does not
constitute evidence of permissive use. Though the seller in the
1936 transaction is Appellants’ predecessor-in-interest with
respect to the Alleyway, at the time the purported right-of-way
was granted the seller no longer owned the Alleyway. See supra
¶ 4. Thus, this attempt to create a perpetual right-of-way over
the Alleyway is not evidence of consent or permission by the
owner of the Alleyway at the time.

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 Jacob v. Bate

the trial court correctly applied the presumption of adverse use
when it found that Appellees had shown that their use was open
and continuous for the prescriptive period of twenty years, as
discussed below.

B. Sufficiency of the Evidence

¶25 Appellants next argue that the trial court’s finding of a
prescriptive easement was not supported by sufficient evidence
because Appellees presented insufficient evidence to support the
court’s findings about the use of the Alleyway and whether the
use was over the entire length of the Alleyway for the
prescriptive period of twenty years. We will reverse the trial
court’s findings of fact as clearly erroneous only if the evidence
presented at trial is legally insufficient to support those findings.
Jouflas v. Fox Television Stations, Inc., 927 P.2d 170, 174 (Utah
1996).

¶26 First, Appellants claim that Robert Bate’s testimony that
the Alleyway was “still being used in the same exact way” from
1963 through 1977 was insufficient to establish continuous use of
the Alleyway for that time period because Robert Bate moved
“away from Utah and the [Alleyway]” and would only visit a
few times a year. Appellants also state that Robert Bate did not
make “any statements as to seeing any loading or unloading
being done while visiting the property after he moved away.”

¶27 However, “[a] use need not be ‘regular’ or ‘constant’ in
order to be ‘continuous.’ All that is necessary is that the use be as
often as required by the nature of the use and the needs of the
claimant.” Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984). Robert
Bate testified that the Alleyway was “used a lot for loading and
unloading” products for his parents’ hardware store and was
also used to perform maintenance on the apartment buildings
“to get on the roof,” to access the boiler room, or to access the
doorway through the carport. He also testified that he observed
deliveries of coal to the hardware store and the apartment
buildings in the Alleyway when the buildings were heated by
coal-fired furnaces. Even after he graduated from high school,
Robert Bate observed that the Alleyway was used for unloading

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 Jacob v. Bate

and loading delivery trucks. Robert Bate testified that when he
would visit the Bate Property after he moved to Colorado from
1967 through 1977, his parents were “[s]till doing the same thing
they’d done for years.”

¶28 Although Robert Bate’s testimony about the use of the
Alleyway was not as detailed as it might have been, the evidence
is nevertheless sufficient to demonstrate that the owners of the
Bate Property in 1948 through at least 1977 used the Alleyway
continuously, acting under the assumption that they had a right-
of-way over the Alleyway. The trial court relied on Robert Bate’s
testimony that the use of the Alleyway was “ongoing from at
least 1948 where [Robert Bate] recall[ed] his parents’ use of the
alley from his personal experience working at Ron’s Paint
& Glass” until at least 1977 when Robert Bate’s brother
purchased the Jacob Property and assumed operation of his
parents’ hardware store on the Jacob Property. The court found
that there was “no indication of use restriction against
[Appellees’] use during a twenty year period from 1948 onward”
and that the “[u]se appears to have been unmolested” for at least
twenty years. Viewing the evidence and the inferences to be
drawn therefrom in the light most favorable to the trial court’s
finding, we conclude that legally sufficient evidence supports
the finding that the owners of the Bate Property used the
Alleyway continuously for the requisite twenty years. Crane, 683
P.2d at 1064; see also Jouflas, 927 P.2d at 174.

¶29 Second, Appellants argue that there was insufficient
evidence to support the trial court’s finding that the owners of
the Bate Property had used the entire length of the Alleyway for
the prescriptive period of twenty years. Appellants claim that
“[u]se of the entire length of the [Alleyway] was only established
for eleven years,” based on Robert Bate’s testimony that “the
Savage Brothers’ coal truck would enter [the Alleyway] and
deliver coal to the coal chute servicing the ‘Bate Property’
apartments [from 1948] until 1959 when the coal boiler was
replaced.”

¶30 But Robert Bate also testified that the Alleyway was used
to perform regular maintenance on the apartment buildings, “to

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 Jacob v. Bate

get on the roof,” access the boiler room, or access the doorway
through the carport. The trial court found that “[t]he buildings
located on the Bate Property that [Appellees] need[ed] to access
for maintenance and repairs extend nearly the full 130 foot
length of the claimed right-of-way.” Robert Bate testified that
between the years of 1947 and 1959, he observed his father
accessing the Alleyway to perform maintenance, “[i]f there was
any maintenance to be done.” Robert Bate testified that even
when he would visit the Bate Property after he had moved away
in 1959, his parents were “[s]till doing the same thing they’d
done for years” and that the Alleyway was “still being used the
exact same way.” Though Robert Bate did not testify to specific
dates on which maintenance occurred, his testimony that his
parents’ use of the Alleyway was continuous from 1948 to 1977
along the entire length of the Alleyway is sufficient to support
the trial court’s findings. Jouflas v. Fox Television Stations, Inc., 927
P.2d 170, 174 (Utah 1996).

¶31 We conclude that Appellees adduced sufficient evidence
at trial to support the trial court’s determination that a
prescriptive easement was established. Accordingly, the trial
court did not clearly err in finding that Appellees presented clear
and convincing evidence of the existence of a prescriptive
easement.

II. The Trial Court Did Not Clearly Err in Finding That the
Prescriptive Easement Was Not Extinguished.

¶32 Appellants argue that the placement of a chain across the
Alleyway from 1982 to 2007 extinguished any prescriptive
easement that may have been established. An easement is
extinguished “where use of [the] property violates a servitude
burdening the property and the use is maintained adversely to a
person entitled to enforce the servitude for the prescriptive
period.” Lunt v. Lance, 2008 UT App 192, ¶ 28, 186 P.3d 978
(alteration in original) (citation and internal quotation marks
omitted). Thus, “adverse use by the servient estate holder . . . for
more than twenty years, without objection by the dominant estate
holder . . . , is sufficient to extinguish the easement.” Id. (emphasis
added). In other words, to show that Appellees’ easement had

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 Jacob v. Bate

been extinguished, Appellants had to prove that they had
interfered with Appellees’ use of the easement for twenty years
without objection. “A claimant’s failure to establish any one of the
elements [to extinguish an easement] will necessarily defeat the
claim . . . .” Creech v. Noyes, 87 S.W.3d 880, 886 (Mo. Ct. App.
2002) (emphasis added).

¶33 The trial court found that “the evidence at trial indicate[d]
that at the time of the purchase of the Jacob Property, the
servient estate, by [Appellants] in 1987 there was an unlocked
chain across the entrance to [the Alleyway].” The trial court
further found that the purpose of the chain was “unknown, but
the unlocked nature indicate[d] no intent to completely deprive
the dominant estate of easement use.” The court found that
Appellants acted to prevent Appellees’ use of the Alleyway
beginning in 1987, when a lock was placed on the chain.

¶34 The evidence supports the trial court’s finding that
Appellants failed to prove the elements necessary to establish
extinguishment of the easement. Appellants argue that a chain,
whether locked or unlocked, is sufficient to show adverse use
and that the evidence that there was a chain across the Alleyway
from at least 1982 is therefore sufficient to establish interference
with Appellees’ use of the easement. Appellants contend that
Lance establishes that a “locked” gate is not required to
communicate a restriction and adverse use. 2008 UT App 192,
¶ 29. However, Lance analyzed only the abandonment of an
easement—not the extinguishment of an easement by
prescription. See id. In Lance, the plaintiff abandoned an easement
through “nonuse” after a gate was built blocking a portion of the
lane containing the easement. Id. This court stated that “the trial
court interpreted the twenty-plus years of adverse use by the
Lances, without objection from Lunt and coupled with non-use by
Lunt, as evidence of Lunt’s intent to abandon the easement west
of the gate.” 7 Id. (emphases added). Lance therefore did not

7. On appeal, Appellants do not argue that Appellees abandoned
the easement in the Alleyway.

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address whether an unlocked gate is sufficient to demonstrate
adverse use capable of extinguishing an easement, and it does
not stand for the proposition advanced by Appellants—that an
unlocked gate or chain is necessarily sufficient to show adverse
use such that the trial court clearly erred in finding otherwise.
See id.

¶35 Appellants also point to a lack of evidence showing that
the gate was not locked from 1982 to 1987 and to a lack of
“testimony about whether [the] previous property owner
removed his lock upon selling the property to Jacob.” Don
Anderson, the only witness who testified about the chain’s
existence and use during this time period, testified that he did
not know whether the chain was locked. And no evidence was
presented to show who placed the chain across the Alleyway.

¶36 But Appellants cannot meet their burden by showing that
there was no evidence that the gate was not locked. The party
claiming that the easement was extinguished bears the burden of
proof. See, e.g., Hamouda v. Harris, 845 N.E.2d 374, 377 n.1 (Mass.
App. Ct. 2006). The trial court relied on William Jacob’s
testimony that he placed a lock on the chain in 1987 when he
purchased the Jacob Property. Contrary to Appellants’ claim, the
absence of any evidence establishing that there was a lock on the
chain between 1982 and 1987 militates against a finding that the
chain was locked during that period and supports the trial
court’s finding that the placement of a lock in 1987 began the
prescriptive period for extinguishing the easement.

¶37 Appellants have failed to demonstrate that the trial court
clearly erred by finding that the prescriptive period for
Appellants’ extinguishment claim began to run only in July 1987,
when William Jacob locked the chain across the Alleyway, and
ended in November 2006 when Appellees’ counsel objected to
the locked chain. As the trial court stated, even in this “best-case
scenario” for Appellants, the adverse use occurred for only
nineteen years and the prescriptive period was not met. Because
Appellants failed to establish that the prescriptive period was
met, their claim for extinguishment of Appellees’ easement fails.
See Creech v. Noyes, 87 S.W.3d 880, 886 (Mo. Ct. App. 2002).

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Accordingly, the trial court did not clearly err in finding that the
prescriptive easement was not extinguished.

III. Appellants Are Not Entitled to Damages for Appellees’
Removal of the Obstructions.

¶38 Appellants also challenge the trial court’s decision not to
award them damages for trespass by Appellees. The trial court
ruled against Appellants on their trespass claim, finding that
Taysom’s severance of the chain to access the Alleyway was
reasonable. Appellants contend that even if Taysom had a right
to access the Alleyway, the trial court should still have awarded
damages because “Taysom [did not] present evidence that
vandalizing [Appellants’] property was necessary for any lawful
use.” But Appellants fail to cite any case to support the
proposition that a defendant to a trespass action must prove that
his damage to property was necessary to rightfully access the
easement, rather than only reasonable.

¶39 As stated by the trial court, Utah law provides that the
rights of the dominant owner of an easement are impliedly
limited by the rights of the servient owner. See Big Cottonwood
Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946). “[T]he
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.” Id. (emphasis omitted) (citation and
internal quotation marks omitted). To recover damages, “the
record must show that the dominant owner’s exercise of
theeasement is ‘unreasonable in that it will unnecessarily
damage the servient estate.’” Farmers New World Life Ins. Co. v.
Bountiful City, 803 P.2d 1241, 1249 (Utah 1990) (quoting Big
Cottonwood Tanner Ditch, 174 P.2d at 160).

¶40 Here, Appellees could exercise their right to use the
prescriptive easement in the Alleyway so long as the exercise of
their right was not “so unusual and so obviously unreasonable
that it would be clearly apparent to the court merely from
learning what the proposed method was that other methods
must be practicably available.” Big Cottonwood Tanner Ditch, 174
P.2d at 160. The trial court expressly concluded that breaking the

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chain and removing the concrete barricade was, under the
circumstances, Taysom’s only reasonable method to gain access
to the easement he had a right to use. Appellants have failed to
show that this finding was not supported by legally sufficient
evidence. Accordingly, the trial court’s finding that Taysom’s
actions were reasonable is not clearly erroneous.

CONCLUSION

¶41 We conclude that Appellants have failed to demonstrate
any error in the trial court’s determination that Appellees have a
prescriptive easement over the Alleyway and that this easement
has not been extinguished. We also conclude that the trial court
did not clearly err in finding that Taysom’s actions to access the
Alleyway were reasonable under the circumstances, and
consequently Appellants were not entitled to trespass damages.
We therefore affirm the trial court’s ruling in all respects.

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