Hall v. Peterson

2017 UT App 226

THE UTAH COURT OF APPEALS

KYLE R. HALL,
Appellee,
v.
DAVID L. PETERSON,
Appellant.

Opinion
No. 20150459-CA
Filed December 7, 2017

Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 120600065

Kasey L. Wright and Cherylyn Egner, Attorneys
for Appellant
Troy L. Booher, Clemens A. Landau, and Russell A.
Cline, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 Since 1965, David L. Peterson, individually and through
his trust, has owned a large tract of recreational mountain
property east of Mount Pleasant in Sanpete County. 1 Part of the
property is known as Buckhorn Flats. Between 2010 and 2013,
Kyle R. Hall purchased four lots near Buckhorn Flats. A dirt

1. Peterson passed away in June 2014. However, he is still listed
as the appellant in this matter as the trustee of the David L.
Peterson Trust. Appellant refers to the current trustees of the
Peterson estate as “Appellant” or “Peterson.” We follow this
pattern for consistency.
 Hall v. Peterson

road (the Peterson Road) crosses Buckhorn Flats and is the only
access to another road (the Spur Road) that leads to Hall’s four
lots. When Peterson would not allow access across Buckhorn
Flats using the Peterson Road, Hall sued. At trial, the jury found
that the evidence established an easement by estoppel, allowing
Hall to use the Peterson Road. On appeal, Peterson argues that
the evidence at trial was insufficient to support an easement by
estoppel and that his motion for a directed verdict should have
been granted. 2 Peterson also argues that the trial court erred in
not defining the scope of the easement and in its determination
of the prevailing party and award of costs. We reverse the trial
court’s denial of Peterson’s motion for a directed verdict.

BACKGROUND 3

¶2 Peterson owned Buckhorn Flats beginning sometime
prior to 1965. Peterson conveyed that property to the David L.

2. Although the jury accepted only the easement by estoppel
theory, Hall also brought claims for prescriptive easement,
easement by necessity, public road, recorded easement, and
wrongful denial of access. Only prescriptive easement, easement
by estoppel, and public road were submitted to the jury by way
of a special verdict form. The jury found against Hall on the
claims for prescriptive easement and public road.

3. “When reviewing any challenge to a trial court’s denial of a
motion for directed verdict, we review the evidence and all
reasonable inferences that may fairly be drawn therefrom in the
light most favorable to the party moved against[.]” Mahmood v.
Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (citation and internal
quotation marks omitted). The facts stated herein have been
construed in a light most favorable to Hall—the party moved
against. However, where evidence was lacking, we have noted
that absence in our factual recitation.

20150459-CA 2 2017 UT App 226
 Hall v. Peterson

Peterson Trust in 2006. Adjacent to Buckhorn Flats is land that
has been variously owned by other entities. Hall now owns four
lots of that adjacent property. The Peterson Road, going across
Buckhorn Flats, is the only way to access those lots by vehicle.

¶3 Sometime around 1996 Peterson built a gate that blocked
access to the Peterson Road. Hall’s family obtained a key to the
gate,4 but Peterson changed the locks around 2008. Hall first
personally asked Peterson for a key to the gate in 2010, after he
purchased property beyond Buckhorn Flats. Peterson refused,
despite Hall showing Peterson proof of ownership of property
beyond the gate. Hall then purchased other parcels even though
Peterson had denied him a key. Hall eventually brought this
action seeking access along the Peterson Road.

¶4 One theory Hall advanced at trial, and upon which he
ultimately prevailed, was that through the predecessors in
interest to his properties Hall could establish an easement by
estoppel across Buckhorn Flats to access those properties.
Therefore, the manner in which Hall’s predecessors in interest
used the Peterson Road over the many years was at issue during
trial.

Hall’s Predecessors in Interest

¶5 Hall purchased his four lots between 2010 and 2013—one
from Lula Jean Thomas in 2010, two from David Gobel in 2011,
and one from Alice Smith in 2013. Alice Smith had acquired her
property from her son, Ronald Smith (Smith). 5 Both Thomas and

4. Hall did not personally own property at the time, but his
family has owned property nearby for some time.

5. The record does not establish when Smith sold the property to
his mother. In any case, Alice Smith did not testify at trial, and
her use of the Peterson Road, if any, is not in evidence.

20150459-CA 3 2017 UT App 226
 Hall v. Peterson

Smith acquired their properties from Diversified Marketing
(Diversified) in the 1970s. At trial, Gobel did not testify and there
was no evidence presented showing the historical ownership of
the Gobel lots.

Predecessors’ Use of the Peterson Road

¶6 Although Thomas and Smith only visited their respective
properties a few times over a period of many years, on the rare
occasion that they would travel to their properties, they drove to
their lots by use of a dirt road.6 Smith drove with an unidentified
Diversified representative “to what they said was [his] piece of
property” shortly after Smith agreed to buy the property. Smith
subsequently drove to his property two more times, but he had
not been to the property in roughly thirty years. Thomas visited
her lots “three, maybe four” times from the time she acquired
them in the “late ’60s, early ’70s” until she sold one of her lots to
Hall. Thomas never asked for or received permission to use the
Peterson Road.

¶7 Diversified, the previous owner of the Smith and Thomas
lots, purchased those lots sometime prior to 1974 as part of
roughly 1,550 acres of property to the south of Buckhorn Flats. 7

6. Although the witnesses did not testify that they specifically
used the Peterson Road to access their properties (most, it seems,
were unaware that they were crossing another’s property and
assumed they were on a public road), the evidence established
that the only road that provides driving access to the witnesses’
respective properties is the Peterson Road.

7. The date Diversified acquired the property south of Buckhorn
Flats is not mentioned in the briefs. The testimony at trial from
the previous land owner, Neil Jorgensen, was that he at one time
(but not at the same time) owned both Buckhorn Flats and the
(continued…)

20150459-CA 4 2017 UT App 226
 Hall v. Peterson

Diversified began selling “little parcels” of that property. A
“spur road” was built off of the Peterson Road and provided
access to some of the lots Diversified sold, including Hall’s lots.
Hall provided the only testimony at trial about who built the
Spur Road, testifying that Diversified built it. Hall also testified,
however, that he neither saw Diversified build the Spur Road
nor had any supporting documentation as a basis for his
testimony.

¶8 Three witnesses testified about the possible use or
presence of construction machinery on Diversified’s property,
which presumably could only have been brought there through
use of the Peterson Road. An excavating contractor, testifying as
an expert witness, opined that the Spur Road “was maybe 15 feet
across or so, and . . . [that it] would take a machine to build the
road that wide, that significant.” A second expert, a general
contractor, agreed. These witnesses did not testify about how
many machines would have been necessary or how long it
would have taken to grade the road. The third witness, Smith,
testified that after he purchased the property in the 1970s, but
before 1980, on one occasion he “saw a bulldozer south of [his]
property” where Diversified “said there would be a clubhouse”
and that Diversified had “bulldozed a short section of an area
south of [his] property[] . . . in an area which [Diversified] said
was what they were selling.” When asked about the bulldozer’s
exact location, Smith stated, “I can’t tell you how far south, but it
was south of the property.” Smith did not testify that the
bulldozer was on the Peterson Road or that it was being used for
making a road or any other improvement.

(…continued)
property to the south. Jorgensen testified that he owned and sold
Buckhorn Flats before he owned the property to the south.

20150459-CA 5 2017 UT App 226
 Hall v. Peterson

Other Use of the Peterson Road

¶9 The jury heard testimony from other witnesses—
Johansen, Vincent, Seely, Sorensen, R. Hall, C. Hall, and
Matthews—that the Peterson Road had been used on isolated
instances over a period of decades without obstruction or
restriction.

¶10 Johansen, a person familiar with the area, gave deposition
testimony that he drove on the Peterson Road in the 1970s for
hunting but at trial testified that he did not ever remember using
a vehicle while on the Peterson Road. Johansen acknowledged
that when he was deposed he had stated that he saw people
from out of state use vehicles on the Peterson Road, but at trial
he testified he did not “know of” any other vehicles using the
road back in the 1970s. An affidavit signed by Johansen was read
at trial stating that the “south roads have been used as [a] public
thoroughfare,” but Johansen did not remember asserting that
when questioned at trial. Johansen did not testify that Peterson
was present on any of these occasions.

¶11 Vincent, a property owner in the area, testified that she
had asked Peterson for permission to use the Peterson Road, and
that from 1991 to 1996 she had “free access” to her property by
use of the road. She also testified that she saw people using
ATVs on the road during this time. Vincent in no way quantified
whether this was a single occurrence or whether she observed
ATVs frequently. Vincent did not testify that Peterson was
present on any of these occasions. Vincent did not testify one
way or the other whether the ATV riders had sought permission
to ride on the road. Peterson eventually limited her access to the
Peterson Road and she has not had access to her property since
2009.

¶12 Seely, an owner of nearby property and a person “[v]ery
familiar” with the area, testified that, in the 1950s through 1962,
“a lot of people” used vehicles on the Peterson Road to “hunt

20150459-CA 6 2017 UT App 226
 Hall v. Peterson

deer up there on Buckhorn Flat” and that “[t]he competition was
pretty great up there . . . [during] the deer hunt.” While Seely
testified of many other times hunting “potguts” and “plant[ing]
potatoes for [Peterson]” on other sections of Peterson’s property,
none of those other instances included use of the Peterson Road
on Buckhorn Flats. Seely reiterated that he was not in the area in
the 1970s and 1980s.

¶13 Sorensen, another property owner in the area, testified
about his use of the Peterson Road. The first time Sorensen
visited his property, he and a real estate agent “drove as far as
[they] could, and then [they] hiked in.” After he purchased his
property in 1976, he “just drove right to” the property on “the
only [road] that [he was] aware of” “at least once a summer” for
“[t]en, twelve years or so.” Sorensen never asked permission to
use the Peterson Road and no one ever objected to him using it.
Sorensen did not testify that Peterson was present on any of
these occasions. Sorensen has been unable to access his property
since the “early to mid- ’90s” because of a “chain” or a “gate”
blocking the Peterson Road.

¶14 R. Hall, Hall’s father and an owner of nearby property
accessible from an alternate road, testified that, from around
1977 until around 2006, he would “go up there at least once a
year, sometimes more” and drive trucks and ATVs on the
Peterson Road for recreational purposes. R. Hall testified that the
Peterson Road was “just an open road. People up there driving
around, hunting, doing activities. People from town coming up
on four-wheelers. It was just . . . open. There was no gate[], no
trespassing signs. It was always open.” C. Hall, Hall’s mother
and a person familiar with nearby property, testified about her
personal use of the road and seeing others use the Peterson Road
in a similar manner described by R. Hall.

¶15 The deposition of Matthews, another property owner in
the area, was read into evidence during trial. Matthews had

20150459-CA 7 2017 UT App 226
 Hall v. Peterson

driven to his property once “back in . . . 1974.” Matthews’s
deposition reads:

Q. Who did you go with? Who did you drive
up there with?

A. As I remember there was a group of us that
were owners . . . . And I remember going with, you
know, five or six other owners, Sherm Clowder
and Arden Kitchen for sure.

Q. Did a real estate—

A. And probably Paul Richards.

Q. I apologize.

A. Yeah, and probably Paul Richards too.[8]

Matthews tried to go back to the property “a couple of times,”
but was unable to reach it because “[t]here [were] fences there,
and it was a little more snowy and muddy, and [they] couldn’t
get up there because of those two problems.”

Motion for Directed Verdict

¶16 After Hall had presented his evidence, Peterson moved
for a directed verdict, arguing that there was insufficient
evidence to support Hall’s claim for easement by estoppel. The
following argument about easement by estoppel was made on
the motion:

8. Hall later argued that a reasonable juror could infer from this
testimony that real estate agents frequently used the Peterson
Road. Paul Richards is another property owner.

20150459-CA 8 2017 UT App 226
 Hall v. Peterson

[Attorney for Hall]: Mr. Peterson[] permitted
another to use his land under the circumstances in
which it was reasonable to foresee that the user
would substantially change position believing that
the permission would not be revoked.

[The Court]: So is it enough that [an owner] went
there and looked at it and then bought it? Is that
enough?

[Attorney for Hall]: Yes. . . .

[The Court]: Just because he drove to it and looked
at the property.

[Attorney for Hall]: Well, Diversified—the
Petersons knew that Diversified was crossing . . . .

¶17 The trial court denied Peterson’s motion after reviewing
the evidence relevant to the elements of easement by estoppel.
Specifically, the court examined whether Peterson gave
permission to Hall or his predecessors in interest to use the
Peterson Road, whether it was foreseeable to Peterson that
others would rely on that permission, and whether Hall or his
predecessors in interest substantially changed position based on
a belief that permission would not be revoked. The trial court
ultimately concluded that there was sufficient evidence for the
jury to determine that there was an easement by estoppel.

Verdict

¶18 After the conclusion of the presentation of evidence, the
jury answered the special verdict form and found that the
elements of easement by estoppel were met. The trial court
entered judgment granting Hall an easement by estoppel based
on the jury’s answers. The trial court also awarded costs to Hall,
determining that Hall was the prevailing party. Peterson filed a

20150459-CA 9 2017 UT App 226
 Hall v. Peterson

motion for judgment notwithstanding the verdict, which the trial
court denied. Peterson appeals the denial of his motion for
directed verdict.

ISSUE AND STANDARD OF REVIEW

¶19 We review whether there was sufficient evidence for the
trial court to deny Peterson’s motion for a directed verdict.

When reviewing any challenge to a trial court’s
denial of a motion for directed verdict, we review
the evidence and all reasonable inferences that may
fairly be drawn therefrom in the light most
favorable to the party moved against, and will
sustain the denial if reasonable minds could
disagree with the ground asserted for directing a
verdict. As this Court’s standard of review of a
directed verdict is the same as that imposed upon
the trial court, we review the trial court’s decision
to determine if the evidence at trial raised a
question of material fact which precluded
judgment as a matter of law.

Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (brackets,
citations, and internal quotation marks omitted); see also Merino
v. Albertsons, Inc., 1999 UT 14, ¶¶ 3, 8, 975 P.2d 467 (reversing the
denial of a directed verdict motion); Salt Lake City v. Gallegos,
2015 UT App 78, ¶ 5, 347 P.3d 842 (same).

ANALYSIS

I. Preservation

¶20 As a preliminary matter, we address Hall’s argument that
most of Peterson’s arguments on appeal are unpreserved. An
issue is preserved when the issue is “presented to the trial court

20150459-CA 10 2017 UT App 226
 Hall v. Peterson

in such a way that the trial court has an opportunity to rule on
that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (citation and internal quotation marks omitted). This
court generally will not review issues that are not preserved in
the trial court unless there is a showing of plain error or
exceptional circumstances. See York v. Shulsen, 875 P.2d 590, 594
(Utah Ct. App. 1994).

¶21 Peterson does not argue plain error or exceptional
circumstances. We therefore must only determine if the issue—
whether there was sufficient evidence to support a verdict
establishing an easement by estoppel—was presented at trial in a
way that the trial court could rule on all of the elements of
easement by estoppel.

¶22 The trial court instructed the jury as follows on the
elements of easement by estoppel:

An easement by estoppel can only be granted if it
is established by a preponderance of the evidence
that: (1) the owner or occupier permitted another to
use that land under circumstances in which it was
reasonable to foresee that the user would
substantially change position believing that the
permission would not be revoked; (2) the user did
substantially change position in reasonable reliance
on that belief; and (3) granting the user an
easement is necessary to avoid injustice.[9]

9. Peterson did not object to this instruction nor does he claim on
appeal that the instruction misstates the law. Our attention has
been directed to no Utah appellate court decision recognizing
easement by estoppel. The trial moved forward under this
theory and Peterson does not challenge its existence in Utah.
Accordingly, like the parties, we assume its existence. Easement
(continued…)

20150459-CA 11 2017 UT App 226
 Hall v. Peterson

¶23 Hall argues that the issues presented on appeal are only
partially preserved because Peterson “moved for directed
verdict with respect to only . . . reasonable reliance.” Thus, Hall
argues, Peterson is barred from challenging the sufficiency of the
evidence on any other element of easement by estoppel—
“permission by the owner, . . . reasonable foreseeability by the
owner, . . . and substantial change by [the] user.”

¶24 The record does not support Hall’s position. The parties
argued permission by the landowner, the landowner’s
foreseeability of reasonable reliance, and substantial change of
position during the motion. See supra ¶¶ 16–17. Peterson never
conceded that any of the elements were supported by the
evidence, and the trial court made specific conclusions going to
the elements Hall claims are unpreserved.

¶25 As to Peterson’s knowledge and implied permission to
use the road, the court determined that “it’s reasonable to
believe that [Peterson] would have known that the . . . spur road
was being built.” The court also made conclusions in its ruling
addressing reasonable foreseeability by the landowner, saying,
“It would be reasonable for him to foresee or to believe that
others intended to use [the Peterson Road] to access that spur
road that was being built.” Likewise, substantial change by the
user was also discussed extensively during argument on the
motion. Hall argued, “Peterson knew or he should have known
that Diversified and buyers and prospective buyers were coming
across his property and changing their position by building new
roads, changing their position by selling property, [and]
changing their position by buying property based on an

(…continued)
by estoppel has been recognized in a federal court action in
Utah. Intermountain Resources, LLC v. Jorgensen, No. 2:08–CV–80
TS, 2010 WL 4237313, at *4 (D. Utah Oct. 21, 2010).

20150459-CA 12 2017 UT App 226
 Hall v. Peterson

assumption.” Thus, the record demonstrates that all of the
elements of easement by estoppel that Peterson challenges on
appeal 10 were “presented to the trial court in such a way that the
trial court ha[d] an opportunity to rule on that issue.” See 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation
and internal quotation marks omitted). Therefore, we address all
of Peterson’s arguments.

II. Sufficiency of the Evidence

¶26 We next review whether the evidence at trial was
sufficient to support an easement by estoppel.

Under Utah law, a party who moves for a directed
verdict has the very difficult burden of showing
that no evidence exists that raises a question of
material fact. If there is any evidence raising a
question of material fact, judgment as a matter of
law is improper. Thus, a motion for a directed
verdict is only appropriate when the court is able
to conclude, as a matter of law, that reasonable
minds would not differ on the facts to be
determined from the evidence presented.

Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933 (citations and
internal quotation marks omitted). “[T]he court is not free to
weigh the evidence and thus invade the province of the jury,
whose prerogative it is to judge the facts.” Id.

¶27 However, even where evidence exists, that evidence must
be material and sufficiently probative to enable a factfinder to do
more than speculate before a directed verdict motion should be

10. The third element in the jury instruction, “granting the user
an easement is necessary to avoid injustice,” is not challenged on
appeal.

20150459-CA 13 2017 UT App 226
 Hall v. Peterson

denied. Salt Lake City v. Gallegos, 2015 UT App 78, ¶ 11, 347 P.3d
842 (reversing the denial of a directed verdict motion where the
jury’s verdict required speculation). For example, in Mahmood,
after the denial of a motion for a directed verdict, a jury had
returned a verdict in favor of a plaintiff on the issues of
causation and mitigation of damages. In reversing, our supreme
court explained:

Proximate cause is generally determined by an
examination of the facts, and questions of fact are
to be decided by the jury. Thus, courts should
refuse to grant a directed verdict on issues of
causation if there is any evidence which might lead
a reasonable jury to find a causal connection
between a breach and a subsequent injury.
However, this does not mean that a jury is free to
find a causal connection between a breach and
some subsequent injury by relying on unsupported
speculation. Although juries may make deductions
based on reasonable probabilities, the evidence
must do more than merely raise a conjecture or
show a probability. Where there are probabilities
the other way equally or more potent the
deductions are mere guesses and the jury should
not be permitted to speculate. The rule is well
established in this jurisdiction that where the
proximate cause of the injury is left to conjecture,
the plaintiff must fail as a matter of law.

Mahmood, 1999 UT 104, ¶ 22 (citations and internal quotation
marks omitted). After reviewing the evidence, the court in
Mahmood concluded there was insufficient evidence of causation
and held that the issue of causation should not have been
submitted to the jury. Id. ¶ 29. The Mahmood court then similarly
reviewed the evidence and found it insufficient to submit the

20150459-CA 14 2017 UT App 226
 Hall v. Peterson

issue of mitigation of damages to the jury and held that the
directed verdict should have been granted. Id. ¶¶ 37, 39.

¶28 With this standard in mind, we proceed to review the law
of easement by estoppel and the sufficiency of the evidence in
support of that claim in this case. As noted above, supra ¶ 22
note 9, no Utah state court decision has recognized easement by
estoppel, but we assume its existence for purpose of this appeal.
Notwithstanding the lack of recognition for easement by
estoppel, estoppel itself is a well-recognized legal principle.

¶29 The estoppel asserted here is an equitable estoppel
because it arose from the parties’ conduct, not from a record or
contract. See Youngblood v. Auto-Owners Ins. Co., 2005 UT App
154, ¶ 12, 111 P.3d 829 (“Utah courts define equitable estoppel as
conduct by one party which leads another party, in reliance
thereon, to adopt a course of action resulting in detriment or
damage if the first party is permitted to repudiate his conduct.”
(citation and internal quotation marks omitted)); 31 C.J.S.
Estoppel & Waiver § 1 (2017) (defining equitable estoppel as “all
forms of estoppel not arising from a record, from a deed, or from
a written contract”). “The gravity of a judicial means of
acquiring an interest in land of another solely by parol
[evidence] requires that equitable estoppel be strictly
applied, and the estoppel should be certain, precise and clear.”
McClung v. Ayers, 352 S.W.3d 723, 729 (Tex. App. 2011) (footnote,
citations, and internal quotation marks omitted).

To prevail on a claim of equitable estoppel, a party
must establish three elements. First, there must be
a statement, admission, act, or failure to act by one
party inconsistent with a claim later asserted.
Second, estoppel requires reasonable action or
inaction by the other party taken or not taken on
the basis of the first party’s statement, admission,
act or failure to act. Third, there must be injury to
the second party that would result from allowing

20150459-CA 15 2017 UT App 226
 Hall v. Peterson

the first party to contradict or repudiate such
statement, admission, act, or failure to act.

Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, ¶ 41,
258 P.3d 539 (citations and internal quotation marks omitted).

¶30 The parties based the jury instruction outlining the
elements of easement by estoppel on language found in the
Restatement (Third) of Property, generally tracking the
requirements for equitable estoppel outlined above:

If injustice can be avoided only by establishment of
a servitude, the owner or occupier of land is
estopped to deny the existence of a servitude
burdening the land when:

(1) the owner or occupier permitted another to use
that land under circumstances in which it was
reasonable to foresee that the user would
substantially change position believing that the
permission would not be revoked, and the user
did substantially change position in reasonable
reliance on that belief[.]

Restatement (Third) of Prop.: Servitudes § 2.10 (Am. Law Inst.
2000). The three elements argued at trial, and thus the elements
that we review here, are (1) permission granted by the
landowner, (2) reasonable foreseeability by the landowner that
the user would rely on the permission he or she has been
granted, and (3) substantial change of position by the user based
on the permission by the landowner.

¶31 The first element, permission, is a question of fact. See
Home of Economy v. Burlington N. Santa Fe R.R., 2010 ND 49,
¶¶ 21–22, 780 N.W.2d 429 (reviewing the representation
communicated to the promisee as a factual finding). Permission
need not be expressed in writing; but generally some

20150459-CA 16 2017 UT App 226
 Hall v. Peterson

representation must be communicated by the landowner. See
id. ¶ 21 (“To establish a valid claim for an easement by estoppel,
the party claiming the existence of the easement must show a
representation was communicated to the promisee, the
representation was believed, and there was a reliance upon the
communication.” (citation and internal quotation marks
omitted)); S & G Associated Developers, LLC v. Covington Oaks
Condo. Owners Ass'n, 361 S.W.3d 210, 216 (Tex. App. 2012) (“The
elements for an easement by estoppel are: (1) a representation
communicated, either by word or action, to the promisee; (2) the
communication was believed; and (3) the promisee relied on the
communication.”); 25 Am. Jur. 2d Easements & Licenses § 19
(2017) (stating the permissive element of easement by estoppel
as “a representation communicated, either by word or action, to
the promisee”). Permission can take the form of silence.
However, “for silence to work an estoppel, there must be a legal
duty to speak, or there must be something willful or culpable in
the silence which allows another to place himself in an
unfavorable position by reason thereof.” First Inv. Co. v.
Andersen, 621 P.2d 683, 687 (Utah 1980) (citation and internal
quotation marks omitted). “The duty to speak does not arise
until the silent party is himself aware of the facts.” Martin v.
Cockrell, 335 S.W.3d 229, 238 (Tex. App. 2010) (citation and
internal quotation marks omitted).

¶32 The second and third elements, reasonable foreseeability
by the landowner and substantial change by the user, are also
questions of fact. See, e.g., B.R. ex rel. Jeffs v. West, 2012 UT 11,
¶¶ 25–26, 275 P.3d 228 (noting that foreseeability with respect to
proximate cause presents a question of fact); Timothy v. Keetch,
2011 UT App 104, ¶ 10, 251 P.3d 848 (“Reasonable reliance is
generally a factual matter[.]”); Kapp v. Norfolk S. Ry. Co., 350 F.
Supp. 2d 597, 612 (M.D. Pa. 2004) (discussing substantial change
of position as “a factual determination”). Both reasonable
foreseeability and substantial change must be based on the first
element, permission. See Restatement (Third) of Prop.:

20150459-CA 17 2017 UT App 226
 Hall v. Peterson

Servitudes § 2.10 (Am. Law Inst. 2000) (indicating that equitable
estoppel may be invoked “under circumstances in which it was
reasonable to foresee that the user would substantially change
position believing that the permission would not be revoked, and the
user did substantially change position in reasonable reliance on
that belief” (emphases added)).

¶33 The elements for an easement by estoppel, being
questions of fact, are generally to be determined by a jury. Thus,
courts should refuse to grant a directed verdict on easement by
estoppel if there is any evidence which might lead a reasonable
jury to find the elements are met. Mahmood v. Ross, 1999 UT 104,
¶ 22, 990 P.2d 933. However, a jury may not find such elements
are met by relying on unsupported speculation. Id.

¶34 The trial court denied Peterson’s motion for a directed
verdict on the basis that the jury could make reasonable
inferences based on the evidence to reach its verdict.

[T]he distinction between reasonable inference and
speculation is intensely fact-based. When evidence
supports only one possible conclusion, the quality
of the inference rests on the reasonable probability
that the conclusion flows from the proven facts.
When the evidence supports more than one
possible conclusion, none more likely than the
other, the choice of one possibility over another can
be no more than speculation; while a reasonable
inference arises when the facts can reasonably be
interpreted to support a conclusion that one
possibility is more probable than another.

State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 (citation
and internal quotation marks omitted). While this general
premise is true, it fails to support the verdict here.

20150459-CA 18 2017 UT App 226
 Hall v. Peterson

¶35 We hold that evidence does not exist in the record that
supports the needed inferences to establish an easement by
estoppel through Hall or any of his predecessors in interest.
Because Hall essentially concedes that he cannot personally
establish an easement by estoppel, 11 we examine the
shortcomings of the evidence as they relate to his predecessors in
interest, namely, Diversified, Gobel, Smith, and Thomas. 12

A. Diversified

¶36 Diversified is arguably a predecessor in interest to all of
Hall’s properties. 13 The trial court denied Peterson’s directed
verdict motion based on its conclusion that the evidence showed
that Peterson “would have known” that the Spur Road was
being built and that the Peterson Road was being regularly and
frequently used to facilitate that work. Peterson asserts that
insufficient evidence exists to support such an inference. In

11. Hall cannot individually establish an easement by estoppel
because he purchased all of his parcels after Peterson installed
the gate and changed the locks. Therefore, Hall could not have
substantially changed position on a belief that permission to use
the road would not be revoked because he bought the parcels
knowing he did not have Peterson’s permission to use the
Peterson Road.

12. The trial court concluded that “tacking” applies to easement
by estoppel such that Hall is entitled to an easement if he shows
that one of his predecessors in interest satisfies the requirements
for the easement. Because Peterson does not appeal this
determination, we have no occasion to review it.

13. Hall argues that, although Gobel did not testify and there
was no evidence on the historical ownership of the Gobel
properties, the evidence was enough to allow a jury to infer that
Gobel also received his property from Diversified.

20150459-CA 19 2017 UT App 226
 Hall v. Peterson

support of the trial court’s ruling, Hall claims that the evidence
demonstrates that Peterson “gave express or implied permission
to [Diversified] to use his road to develop hundreds of acres of
otherwise landlocked property to the south of [Peterson’s]
property.” This conclusion is based on the premise that Peterson
“allowed the developer to use [Peterson’s] road to move heavy
machinery to build new roads and facilities, and stood by as the
developer subdivided the property to the south into numerous
small lots and marketed and sold those lots to countless
individual purchasers, all of whom had no access to their
property but for [the Peterson Road].” Hall argues that
permission to Diversified is further supported because “there
was also evidence from which the jury could infer that real estate
agents and prospective purchasers of [Diversified’s] property
frequently used the road.” Hall also argues that reliance by
others was both foreseeable to Peterson and was reasonable.

¶37 We disagree. To begin, there is no evidence anywhere in
the record that Peterson gave Diversified express permission to
use the road and Hall points to none. Instead, Hall relies on
Peterson’s silence, arguing that the use of the road was so
pervasive—Diversified allegedly used the Peterson Road to
“transport heavy machinery, sales staff, and potential buyers to
the property”—that the jury could reasonably infer that Peterson
“would have known” that the Spur Road was being built and
that the Peterson Road was being regularly and frequently used
to facilitate that work.

¶38 Peterson does not argue on appeal, nor did he argue at
trial, that the permission element for an easement by estoppel
cannot exist here because there was no overt act by Peterson
granting implied permission. We therefore have no occasion to
reverse on that particular ground, and we presume for purposes
of this appeal that permission may be granted by silence. See
supra ¶ 31. Even so, the evidence presented at trial does not
show that Peterson “would have known” about Diversified’s

20150459-CA 20 2017 UT App 226
 Hall v. Peterson

use, as the trial court determined, and thus permitted Diversified
to repeatedly use the Peterson Road to develop properties that it
sold to “countless individual purchasers.”

¶39 The evidence going to Diversified’s construction activity
beyond Buckhorn Flats is: (1) the existence of a Spur Road,
which would take a machine to grade, that provides some access
to lots Diversified sold; and (2) Smith’s testimony that, on a
single occasion, he saw a bulldozer in an area where Diversified
said it was selling lots. 14 Neither documentary evidence nor
testimony from any Diversified witness was presented at trial
demonstrating that Diversified built the road or brought a
bulldozer to its property by use of the Peterson Road. No one
testified that they saw construction equipment actually doing
any work. This evidence, viewed in a light most favorable to the
verdict, at best shows that it is likely that Diversified conducted
some activity beyond Buckhorn Flats. And because the only road
access to the area is the Peterson Road, Diversified would likely
have used the Peterson Road to conduct that activity.

¶40 But even assuming, based upon the scant circumstantial
evidence here, that Diversified built the Spur Road and brought
up a bulldozer by using the Peterson Road, an inference that
Peterson gave Diversified implied permission to use the

14. Hall testified that Diversified built the Spur Road. However,
Hall did not “see them build” the Spur Road, nor did Hall have
any documentation showing that Diversified built the Spur
Road. Hall’s testimony is speculative, see Speculation, Black’s Law
Dictionary (10th ed. 2014) (“The act or practice of theorizing
about matters over which there is no certain knowledge.”), and
provides “no competent evidence that would support” an
inference either that Diversified built the road or that Peterson
understood the purpose for which it was built, see Merino v.
Albertsons, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467.

20150459-CA 21 2017 UT App 226
 Hall v. Peterson

Peterson Road is unsupported because the evidence does not
show that Diversified’s alleged use of the road was sufficiently
pervasive to permit an inference that Peterson would have
known about the activity and acquiesced in it. See generally
Martin v. Cockrell, 335 S.W.3d 229, 238–39, 238 n.15 (Tex. App.
2010) (holding that the evidence was insufficient to show that a
landowner had a duty to make any representation, and therefore
was insufficient, as a matter of law, to support an easement by
estoppel where there was no evidence that a landowner was
aware of a user’s reliance on a pasture road to make
improvements to property beyond the road). We acknowledge
that mere silence can constitute implied permission for an
estoppel, but where silence is the basis for implied permission
the circumstances must be compelling, showing either “a legal
duty to speak,” or “something willful or culpable in the
silence.” 15 See First Inv. Co. v. Andersen, 621 P.2d 683, 687 (Utah

15. Several cases have reviewed silence as a basis for estoppel
and held that, as a matter of law, it did not establish estoppel.
See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2003 UT 5,
¶¶ 11–12, 73 P.3d 320 (holding, in a case where a party argued
that IHC should have been estopped from requiring on-time rent
payments, that inaction for one month was insufficient to
establish estoppel because more than inaction or silence is
required); First Inv. Co. v. Andersen, 621 P.2d 683, 687–88 (Utah
1980) (holding that the defendants’ failure to respond to the
plaintiff’s three demand letters and threat of collection services
over roughly one and a half years did not establish a basis to
invoke estoppel); see also Storms v. Tuck, 579 S.W.2d 447, 450–53
(Tex. 1979) (holding that, in the context of an expanded use of an
existing easement, silence did not create an easement by estoppel
where, despite the fact that a landowner saw construction
equipment building a road, evidence did nothing to indicate
whether the landowner understood the planned use of the road);
Ramsey v. Champion, No. 10-12-00394-CV, 2014 WL 1882758, at
(continued…)

20150459-CA 22 2017 UT App 226
 Hall v. Peterson

1980) (citation and internal quotation marks omitted). Again, it is
no small thing to acquire an interest in the land of another
through equitable estoppel, and the circumstances supporting
the estoppel should be certain, precise, and clear. See McClung v.
Ayers, 352 S.W.3d 723, 729 (Tex. App. 2011).

¶41 First, the existence of the Spur Road provides no evidence
about the volume of traffic or pervasiveness of Diversified’s
alleged use. Despite the fact that the excavating contractors
agreed and testified that “it would take a machine” to build the
road, they did not testify that it would take more than a single
machine or more than a single day or even a few hours to cut a
dirt road, much less that it could only have been built by
Diversified as opposed to one or more of its buyers, for example.
It would be crucial for a factfinder to weigh how often machines
were moving across the Peterson Road, whether Peterson
actually observed this activity, or how often Peterson would
have been in a position to notice the construction activity. None
of these facts are in evidence. For all the evidence shows, the
Spur Road may have been a months-long project or may have
been built in a day (or in hours) when Peterson was not there to
object. And while we view the evidence in a light most favorable
to the jury verdict, we do not infer facts unsupported by the
evidence. See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d
1096 (“When the evidence supports more than one possible

(…continued)
*4–5 (Tex. App. May 8, 2014) (holding that facts supporting
easement by estoppel were legally insufficient because, even
though the landowners saw improvements being made beyond
their property by use of a road, a duty to speak did not arise
where the user “has equal access to the facts” regarding rights of
access.); cf. Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d
935, 942 (Utah 1993) (announcing the standard for waiver and
that “the intent to relinquish a right must be distinct”).

20150459-CA 23 2017 UT App 226
 Hall v. Peterson

conclusion, none more likely than the other, the choice of one
possibility over another can be no more than speculation[.]”).

¶42 We next examine the evidence of a bulldozer on
Diversified’s property. Even assuming that Diversified used the
Peterson Road to deliver a bulldozer to the lots it was selling,
there is no evidence that Peterson was aware of it. And because
Hall relies on implied knowledge, there must be a showing that
Diversified’s use of the Peterson Road was so significant or
pervasive that Peterson would have known about it and
therefore implicitly granted permission by his silence. This
single bulldozer sighting, even in light of the existence of the
Spur Road, does not demonstrate pervasive use such that it can
be inferred that Peterson gave Diversified permission to use the
Peterson Road. On the contrary, it is equally likely that
Diversified simply used the road without permission.

¶43 Next, the record does not support a finding that “real
estate agents and prospective purchasers of [Diversified’s]
property frequently used the road.” Smith testified that he had
an unidentified representative from Diversified drive him to his
property one time. Aside from that testimony, there are only two
possible references to real estate agents in evidence, neither of
which support the proposition Hall asserts.

¶44 The first is from Sorensen, who testified that the first time
he visited his property with his real estate agent, he “hiked in,”
not that he drove directly to his property. Because he “hiked in”
to the property, there is no basis to conclude that he must have
used the Peterson Road. Therefore, Sorensen’s testimony does
not support an inference that sales staff and real estate agents
frequently used the Peterson Road.

¶45 The second possible reference to a real estate agent is
from the deposition testimony of Matthews that was read at
trial. There, the questioning attorney interjected “Did a real
estate” during Matthews’s answer to a question about who was

20150459-CA 24 2017 UT App 226
 Hall v. Peterson

present on a trip to visit property beyond the Peterson Road.
Even assuming that the attorney was asking whether a real
estate agent accompanied Matthews when he visited his
property, Matthews’s response was not an affirmative response
to that question because it did not include the name of a real
estate agent but the name of another property owner. Matthews
was simply remembering which owners were present.

¶46 Thus, only Smith testified of a single instance where a
representative from Diversified drove him to the property, and
that testimony does not support Hall’s assertion that
Diversified’s real estate agents and sales staff frequently used the
road, much less that they did so with Peterson’s knowledge and
tacit permission. Smith’s testimony never mentioned seeing
Peterson, and therefore establishes nothing about the likelihood
that Peterson ever knew, or “would have known,” that a
representative from Diversified drove Smith to his property once
in the 1970s.

¶47 Finally, no other testimony about the use of the Peterson
Road supports an inference of Diversified’s “extensive
development and sales campaign,” as Hall asserts. The
testimony at trial showed that other people—not Diversified—
used trucks or ATVs on the road for recreational purposes, for
the deer hunt back in the 1950s, and for sporadic visits to access
property beyond the Peterson Road. There is no testimony from
which a jury could reasonably infer that the Peterson Road was
regularly used by Diversified’s sales staff and potential buyers.

¶48 The mere showing that the Spur Road exists and appears
to provide access to some of the lots that Diversified sold, that a
bulldozer was seen one time south of Peterson’s property, and
that a Diversified representative drove Smith to his property
once does not support an inference that Peterson permitted
Diversified to use the Peterson Road to build the Spur Road as

20150459-CA 25 2017 UT App 226
 Hall v. Peterson

well as other “facilities” 16 as part of a new development.
Accordingly, there was insufficient evidence that Peterson gave
permission, implied or otherwise, for Diversified to use the
Peterson Road. Because all three elements of an easement by
estoppel must be proven, the claim fails for this reason alone and
the directed verdict should have been granted. However,
because the trial court addressed all three elements of easement
by estoppel, and in the event of further review, we proceed to
review the sufficiency of the evidence on the other elements as
well.

¶49 Hall relies on the above arguments not only to show
implied permission by Peterson, but also to establish that
Peterson could foresee that Diversified would reasonably rely on
the purported permission and that Diversified would
substantially change its position reasonably believing that
permission would not be revoked.

¶50 Consistent with the analysis above, we are similarly
unconvinced that the evidence shows circumstances where it is
foreseeable by Peterson that Diversified would substantially
change circumstances, believing that permission would not be
revoked.

¶51 Hall does not argue that Peterson had a duty to notify
Diversified (or anyone else) that they could not use the Peterson
Road. Where, as here, a party relies on permission by silence, an
analysis of the reasonableness of that reliance must take into
account that it is silence, not an express grant oral or otherwise,

16. There was no evidence adduced at trial of any facilities
whatsoever beyond Buckhorn Flats. The testimony at trial was
that whatever dirt road exists beyond Buckhorn Flats is a
mountain road, overgrown by trees and brush. In particular, no
witness testified that the Spur Road showed evidence of frequent
use.

20150459-CA 26 2017 UT App 226
 Hall v. Peterson

being relied upon. Because Peterson had no apparent duty to
restrict access to his land, it was unreasonable for Diversified to
rely on Peterson’s silence. See RJW Media, Inc. v. CIT
Group/Consumer Fin., Inc., 2008 UT App 476, ¶ 34, 202 P.3d 291
(“Because CIT had no duty to inform RJW of a possible
procedural defect, not only was it unreasonable for RJW to rely
on CIT’s silence, but CIT’s silence cannot be construed as an
inconsistent act sufficient to establish an equitable estoppel
claim.”). Consequently, the trial court erred in concluding that it
would be reasonable to foresee that Diversified would rely on
Peterson’s failure to restrict use of the Peterson Road, because
Peterson was under no obligation to act.

¶52 Also, no one from Diversified, through hearsay or
otherwise, testified that it relied on the Peterson Road for access.
Further, there is no evidence that Peterson was aware that
Diversified or anyone else used the road. For it to be reasonably
foreseeable that the users would rely on implied permission, the
traffic on the Peterson Road would have had to have been so
significant that, although Peterson was not aware of any of it, he
should have been aware under the circumstances. See Martin v.
Cockrell, 335 S.W.3d 229, 238 (Tex. App. 2010) (citation and
internal quotation marks omitted) (“The duty to speak does not
arise until the silent party is himself aware of the facts.”). This
showing of pervasiveness is exactly what is lacking here. The
evidence does not demonstrate a bustling real estate enterprise,
but instead shows, at best, and construing the evidence in Hall’s
favor, meager use by Diversified coupled with sporadic and
recreational use by entities other than Diversified. The mere
existence of the Spur Road and the paltry use of that road
demonstrated at trial are insufficient to show both that
Diversified relied on the Peterson Road and that Peterson could
foresee that Diversified would change its position based on that
reliance.

20150459-CA 27 2017 UT App 226
 Hall v. Peterson

¶53 In sum, the evidence shows (1) the existence of a Spur
Road, which would take a machine to grade, that provides some
access to lots that Diversified sold, (2) that Smith saw a bulldozer
in an area south of Peterson’s property once in the 1970s, and
(3) that an unidentified representative from Diversified drove
Smith to his lot once in the 1970s. To conclude, based on this
evidence, that Peterson gave permission to Diversified to use the
Peterson Road to build and develop a new mountain
community, and thus to diminish Peterson’s property rights by
estoppel, is not reasonable. We conclude, as a matter of law,
“that reasonable minds would not differ on the facts to be
determined from the evidence presented.” See Mahmood v. Ross,
1999 UT 104, ¶ 18, 990 P.2d 933 (citation and internal quotation
marks omitted). Therefore, Peterson’s motion for a directed
verdict should have been granted with regard to Diversified. See
id. We acknowledge that, while trying to view the evidence in a
light favorable to Hall, the trial court concluded that “[i]t would
be hard for [Peterson] not to know [the Spur Road was] being
built” and that based on that knowledge, “[i]t would be
reasonable for him to foresee or to believe that others intended
to use that road to access that spur road that was being built.”
However, even when viewed in a light favorable to Hall, the
evidence cannot support those conclusions.

B. Gobel

¶54 Peterson asserts, correctly, that there was no evidence
presented at trial showing the historical ownership of the Gobel
properties. Hall argues in response that the jury could infer from
the evidence that Gobel purchased his properties from
Diversified. Further, Hall argues that “[e]ven though [Gobel] did
not testify at trial, a jury could nevertheless reasonably infer that
[Hall] had established his easement by estoppel claim with
respect to [Gobel’s] lots through [Diversified].” We disagree. The
paucity of evidence leaves no room for such an inference.
Moreover, given our disposition on the easement by estoppel

20150459-CA 28 2017 UT App 226
 Hall v. Peterson

through Diversified, see supra Part II.A., we likewise conclude
that, even if it were established that Diversified sold the lots to
Gobel, the easement by estoppel claim through Gobel as a
predecessor in interest fails.

C. Smith

¶55 The evidence does not support an easement by estoppel
through Smith. Hall argues that “[t]he Smiths purchased their
property from [Diversified], and [Peterson] was on notice that
[Diversified] was developing and marketing lots within the
development to individual[s] such as the Smiths. This evidence
allowed the jury to reasonably infer that [Peterson] granted
express or implied permission to the Smiths to use the [road].”
Not really. There is no evidence to support such an inference.
Rather, this is a repackaged argument, turning on the
proposition that Peterson’s implied permission to Smith is
dependent on the implied permission allegedly given to Smith’s
predecessor in interest, Diversified. Given our analysis of the
insufficiency of the evidence as it relates to Diversified, see supra
Part II.A., we reject Hall’s argument here as well.

¶56 Hall primarily relies on Diversified to show that Peterson
gave Smith implied permission to use the Peterson Road. But
insofar as Hall relies directly on Smith, the evidence does not
show that Smith had an easement by estoppel. Smith visited his
property three times after acquiring it in the early 1970s; he
drove there once with someone from Diversified just after
agreeing to purchase the property, and he drove there twice
more before roughly 1985. Smith did not testify that he
purchased the property relying on permission from Peterson, or
that he even knew he was crossing Peterson’s property.17 There

17. Smith and others may have believed that they had a right to
drive all the way to their respective lots, but that has nothing to
(continued…)

20150459-CA 29 2017 UT App 226
 Hall v. Peterson

is no evidence that Peterson ever gave permission to Smith or
even that Peterson knew that Smith existed. These three visits
over a span of roughly forty years cannot show that Peterson
implicitly gave permission to Smith to use the Peterson Road,
much less that it would be foreseeable to Peterson that Smith
would rely on that permission. We conclude, as a matter of law,
“that reasonable minds would not differ on the facts to be
determined from the evidence presented,” and therefore
conclude that Peterson’s motion for a directed verdict should
have been granted with regard to the lots owned by Smith. See
Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933 (citation and
internal quotation marks omitted).

D. Thomas

¶57 Our analysis of the evidence pertaining to Thomas as a
predecessor in interest is identical to our above analysis
pertaining to Smith. Hall again argues the jury could reasonably
infer implied permission given to Thomas as a successor to
Diversified. No such inference is reasonable.

¶58 Like Smith, Thomas’s own use of the road similarly fails
to establish an easement by estoppel. Thomas visited the
property “three, maybe four” times since the 1970s. There is no
evidence that Peterson ever gave permission to Thomas or ever
knew that Thomas existed. Thomas did not testify that she
purchased the property relying on permission from Peterson,
nor that she even knew she was crossing Peterson’s property.
Her visits are not evidence of circumstances suggesting that
Peterson implicitly gave permission to use his land, or that it
would be foreseeable that Thomas would rely on that
permission, such that Peterson’s property rights are diminished

(…continued)
do with permission granted by Peterson, nor Peterson’s ability to
foresee reliance on that privately held belief.

20150459-CA 30 2017 UT App 226
 Hall v. Peterson

by the creation of an easement. “[R]easonable minds would not
differ on the facts to be determined from the evidence
presented,” and Peterson was entitled to a directed verdict. See
Mahmood, 1999 UT 104, ¶ 18 (citation and internal quotation
marks omitted).

E. Cumulative Effect of the Evidence

¶59 The sum of the evidence shows, at best, (1) the existence
of an simple dirt road, which would take a machine to grade,
with no evidence of how long it would take to grade it, that
provides access to some lots that Diversified sold, (2) that an
unidentified representative from Diversified drove Smith to his
lot once in the 1970s, (3) that Smith saw a bulldozer in an area
south of Peterson’s property once in the 1970s, and (4) that
people have variously used trucks or ATVs on the road for
recreational purposes, for the deer hunt back in the 1950s, and
for isolated and sporadic visits to access property beyond the
Peterson Road. The above analysis shows that the elements
argued at trial for easement by estoppel—(1) permission, (2)
foreseeability by the landowner that the user will rely on that
permission, and (3) substantial change of position by the user
based on the belief that permission will not be revoked—can
neither be met by the evidence concerning Hall’s own use of the
Peterson Road, nor by his predecessors’ use of the Peterson
Road. Particularly, the evidence cannot show that Peterson
granted permission, express or implied, to Hall or any of his
predecessors in interest to access property beyond Buckhorn
Flats because the evidence does not establish actual permission
and, as to implied permission, the evidence demonstrates that
the use was so minimal over the last forty years that implied
permission cannot reasonably be inferred. 18

18. If pervasive use had been shown, it might be reasonable to
infer that Peterson gave permission, at least impliedly, as it
(continued…)

20150459-CA 31 2017 UT App 226
 Hall v. Peterson

¶60 To suggest that an easement by estoppel is legally
supported through a showing of various entities’ cumulative use
of property that was generally open for many years, the notion is
misguided under the facts of this case. As noted above, “[t]he
gravity of a judicial means of acquiring an interest in land of
another solely by parol [evidence] requires that equitable
estoppel be strictly applied, and the estoppel should be certain,
precise and clear.” McClung v. Ayers, 352 S.W.3d 723, 729 (Tex.
App. 2011) (footnote, citations, and internal quotation marks
omitted). An easement by estoppel was not created merely
because Peterson, as an owner of recreational property, failed to
post guards or otherwise preclude trespassers from traversing
his property when no evidence suggests he was present to
object. It is unreasonable to interpret Peterson’s silence here as
permission, and it would be unreasonable to hold that the
sporadic use of the Peterson Road, as demonstrated by the
evidence, is “certain, precise and clear” enough to establish an
easement. See id. (citation and internal quotation marks omitted).

III. Remaining Claims

¶61 Peterson also appeals the trial court’s ruling as to
(1) Peterson’s denied judgment notwithstanding the verdict,
(2) the scope of the easement, and (3) the prevailing party at trial.
Because we hold that the trial court erred in denying Peterson’s
directed verdict, the issue of a judgment notwithstanding the
verdict is moot. Likewise, we need not review the scope of the
easement. And because we reverse the trial court’s denial of
Peterson’s motion for a directed verdict, Hall is no longer the
prevailing party.

(…continued)
would be fair to assume he saw traffic on multiple occasions on
the Peterson Road and never said anything about it, thereby
impliedly giving permission to its continuation.

20150459-CA 32 2017 UT App 226
 Hall v. Peterson

CONCLUSION

¶62 The evidence at trial was insufficient to establish an
easement by estoppel as to Hall or any of his predecessors in
interest. We reverse the trial court’s denial of Peterson’s directed
verdict motion and remand to the trial court for proceedings
consistent with this ruling.

20150459-CA 33 2017 UT App 226