(dissenting):
I dissent. I believe that justice would be better served if the plaintiffs’ proposal were adopted that they be allowed to fence the west side of the right-of-way to contain Barton’s livestock and that the right-of-way be left open and unobstructed.
Barton does not dispute that the plaintiffs have the right to construct and maintain a graveled roadway for the ingress and egress of motor vehicles to and from their property. That being so, the east 25 feet of the Barton property is committed to a use which is no longer consistent with that of pasturing animals. It is a graveled roadway for the access of both plaintiffs and Barton. Therefore, it is impractical and inequitable to endeavor to preserve the roadway as part of a pasture for Barton’s livestock as the trial court attempted to do. We held in Stevens v. Bird-Jex Company, 81 Utah 355, 18 P.2d 292 (1933), that the owner of the servient estate may make use of the right-of-way in a manner “not inconsistent with the special use for which the easement was granted” and that he must not impair the enjoyment of the easement *760by the owner of the dominant estate. Later, in Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590 (1963), we stated that the owner of the servient estate may use the right-of-way in any manner which does not interfere with the privilege granted to the owner of the dominant estate. In the instant case, the trial court in its Judgment recognized these principles of law but then erroneously also recognized their antithesis by stating that:
The plaintiffs and others similarly situated shall have the right to use and enjoy the right-of-way for ingress and egress, not inconsistent with the rights of the owner, Ida Rose Barton, and without unreasonable interference with the right of said owner to use her property to the fullest extent.
I do not believe that the quoted material properly applies the law to the facts. It is Barton’s use which must not be inconsistent with the use for which the easement was granted and which must not interfere with the use of the easement by plaintiffs. The majority opinion recognizes this sound principle by its quote from 25 Am.Jur.2d Easements and Licenses, § 89. Barton’s use must be compatible with the right-of-way. That will not be so under the ruling of the trial court.
BAFCO reserved a general right-of-way in the deed to the Bartons, and it later granted this same general right-of-way to the plaintiffs. It was a general right-of-way because it was specified to be for ingress and egress without restriction, except as to its width (25 feet). The Bartons and BAFCO could have, but did not, use limiting language in the reservation which would restrict its frequency of use, purpose of use or mode of travel. In view of the clear and unambiguous language of the reservation, I seriously question the consideration of matters in the majority opinion which are in derogation of the clear and unqualified language of the reservation in the Barton deed and in the subsequent grants to the plaintiffs. See generally on this point 25 Am. Jur.2d Easements and Licenses, § 75, and annotation at 3 A.L.R.3d 1262, § 3[a]. Furthermore, contrary to the majority opinion, the fact that Barton’s livestock grazed the right-of-way for several years before the plaintiffs had acquired their rights-of-way and before they had any need to use it, is not a proper element for consideration in this case. Abandonment or non-user was not pleaded nor claimed by Barton and could not have been successful.
Turning now to the matter of the locked gate across the right-of-way, it should be readily apparent that if houses are to be built on the plaintiffs’ property as they propose, access on a daily basis to their property will be needed along the right-of-way. Since the right-of-way can produce no feed for Barton’s livestock, no purpose is served in allowing her animals to roam the easement, thus requiring the maintenance of a locked gate. In fact, additional gates will be required at the entrance of plaintiffs’ property which must be unlocked and then locked again whenever a vehicle passes through. A driver of a vehicle desiring to pass through the two gates will be required four times to stop his vehicle, alight therefrom, open or close a gate and then re-enter the vehicle. Keys will have to be provided all family members, guests and service and delivery vehicles. Plaintiffs cannot obtain a building permit to erect a house if there are any locked gates. All of this inconvenience and damage is inflicted on the plaintiffs without any offsetting benefit being derived by Barton.
In North Union Canal Co. v. Newell, Utah, 550 P.2d 178 (1976), a case involving the fencing of a right-of-way with gates at each end and at intervals between the two ends, this Court discussed the conflict of the interests of the owners of the dominant estate and the servient estate and remarked that “The object to be desired is to find some accommodation of those conflicting interests, to the maximum advantage and to the minimum disadvantage of both parties.” There, by a divided opinion of this Court, the owner of the servient estate was allowed to maintain a fence across a right-of-way with locked gates provided. But the easement was in a canal and along its banks. It had been granted for the purpose, *761of cleaning and maintaining the canal and its use by the owner of the dominant estate was infrequent — not on a daily basis as in the instant case when houses are built on the plaintiffs’ property. See also McBride v. McBride, Utah, 581 P.2d 996 (1978) where we affirmed a trial court’s determination not to permit locked gates across an easement over agricultural lands, characterizing it as a “wise and judicious exercise of discretion.” It should also be observed that easements across agricultural lands are often not graveled and are not used on a daily basis for access to a residence. That is not so here.
If we are to find the “maximum advantage and the minimum disadvantage” to each of the parties, the proposal of the plaintiffs to fence the right-of-way and thus eliminate the locked gate comes much closer to attaining that object than the solution arrived at by the trial court and approved by a majority of this Court which seriously depreciates the value of the easement. It is not valid to argue, as does the majority opinion, that the fence “would have the practical effect of depriving [Barton] entirely of the use of her land, a result rejected in Weggeland v. Ujifusa, 14 Utah 2d 364, 384 P.2d 590 (1963).” Barton may use the right-of-way for foot and vehicular traffic to reach and service the rear of her property and the animals kept thereon. She is asked only to honor the reservation in her deed of which she was fully aware when she purchased her property which limits her from using 25 feet of her property in a manner inconsistent with an unqualified right-of-way.