C-B-K Ranch v. Thomas

2023 UT App 110

THE UTAH COURT OF APPEALS

C-B-K RANCH LLC,
Appellant,
v.
GLENNA R. THOMAS TRUST AND GLENNA R. THOMAS,
Appellees.

Opinion
No. 20210584-CA
Filed September 21, 2023

Seventh District Court, Moab Department
The Honorable Don Torgerson
No. 200700014

Stephen J. Stocks, Attorney for Appellant
Craig C. Halls, Attorney for Appellees

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

LUTHY, Judge:

¶1 This is a dispute over the scope of an easement. C-B-K
Ranch LLC (C-B-K) and the Glenna R. Thomas Trust (the Trust)
own adjoining parcels of land. C-B-K holds an access easement
over a roadway crossing the Trust’s property, which C-B-K must
use to reach its property. The gate on the roadway sometimes
malfunctions, and C-B-K brought suit seeking to replace it with
an electric gate. The Trust opposed this request, arguing that the
proposed gate would be less convenient for the Trust’s uses,
would invite trespassers, and would likely be unreliable. After a
bench trial, the district court found that replacing the gate with an
electric one would place an unreasonable burden on the Trust’s
estate. Because we determine that the district court did not apply
the correct legal standard in reaching that conclusion, we reverse
 C-B-K Ranch v. Thomas

and remand the matter with instructions for the court to
reconsider the issue applying the correct legal standard.

BACKGROUND

¶2 C-B-K and the Trust own neighboring properties in the La
Sal Mountains in Grand County, Utah. For nearly forty years,
C-B-K has used a roadway traversing the Trust’s property to
access its own property. This roadway continues across C-B-K’s
property. On the portion of the road that runs over the Trust’s
property, there is a large, metal swing gate. The gate is secured by
a chain, which is divided into multiple sections such that it can be
removed by unlocking either a combination lock belonging to
C-B-K or a combination lock belonging to the Trust.

¶3 The gate is now defective. Sometimes the end attached to a
post gets out of position, causing the end not attached to the post
to drag on the ground. When that happens, a person wanting to
open the gate must lift the swinging end off the ground and carry
it. Due to his age and health, C-B-K’s acting manager (Manager)
has difficulty opening the gate when it malfunctions.

¶4 C-B-K brought suit, alleging that it has an easement over
the roadway and that it is “entitled to a prescriptive easement
. . . for the construction, installation, use and maintenance of an
[electric] gate at [its] own expense.” The Trust responded,
insisting that C-B-K’s use of the roadway over the Trust’s
property was permissive and did not “bloom[] into a prescriptive
easement,” and it “further denie[d] that there is such a thing as an
easement for an electric gate.”

¶5 Before trial, however, the parties stipulated that each had
an access easement across the other’s property. The district court,
in a subsequent order, stated, “[P]ursuant to the [s]tipulation of
the parties[,] . . . C-B-K Ranch, the dominant estate, is granted a
non-commercial easement on the existing road for ingress and

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egress, . . . [s]aid easement being a roadway surface,” and “[the
Trust] is granted an easement which . . . proceeds across the C-B-K
property,” also “a non-commercial easement for ingress and
egress, which is a roadway surface.” 1

¶6 The district court held a bench trial on the remaining issue
of whether C-B-K was entitled to replace the existing gate with an
electric one. Witnesses for C-B-K included Manager and his friend
(Friend), who had visited C-B-K’s property hundreds of times
over several decades. Witnesses for the Trust included the son
(Son) and daughter (Daughter) of Glenna R. Thomas, the trustee
of the Trust.

¶7 Manager testified that the current gate was installed by
Thomas’s second husband. Son recounted that it was installed in
the early 1990s and that there had previously been a locked
barbed wire gate at its location. Daughter said that since the
current gate’s installation, it has “always had” a chain with
multiple combination locks on it. As to who maintains the gate,
Manager declared, “Nobody has maintained it, other than
everybody that” has had to repair it when it malfunctions.

¶8 Manager described the access to the gate and problems he
has experienced with the gate: “[Y]ou park[] on the county road
and walk up a steep little bank[.] I can usually stumble up there
and get up there all right. And then you open the gate and come
back, drive through, get out and close the gate and drive on.” He
indicated that “sometimes the gate will swing, but usually, you
have to pick it up . . . and [kind of] carry it around.” Friend
explained that “because [of] the way they hung the hinges, it has
a tendency to fall down and drag [on] the ground on the end

1. C-B-K brought other claims as well, and the Trust brought
several counterclaims, one of which alleged a prescriptive
easement over C-B-K’s property. Because these additional claims
are not at issue in this appeal, we do not address them.

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where you unlock it.” When this happens, he said, “[y]ou have to
pick up the end of it and carry it around[,] and if it goes too far,
then the way the hinges are bent and hanging down, you have a
real hard time picking it up to clear the ground” because “the
hinges keep it in a bind when you’re trying to open it.” Friend
recounted how he had adjusted the gate multiple times “[w]ith a
hammer . . . [a]nd wrenches, releasing the bolts so that [he could]
beat it back around where it belongs and then tighten the bolts
again.”

¶9 Daughter and Son agreed that the gate sometimes drags,
and they attributed this malfunction to the effects of moisture
during winter. Daughter stated that “on a wet year, after the
snow[,] . . . the gate will lean a little bit.” Son testified that the gate
did not drag after the most recent winter “because [of a] lack of
moisture” and that, accordingly, the gate had last been repaired
by Daughter the previous summer. The court admitted two
videos the Trust submitted showing the gate swinging freely,
including one in which the following editorial comments can be
heard: “So there you go, kids. I don’t know who can’t open that
gate, but I guess if you can’t open the gate, don’t go [up] the
mountain.”

¶10 When asked how hard it is for him to pick up the gate when
it drags, Manager responded, “[I]t’s getting harder and harder. . . .
I can still get it done[.] [I]t takes awhile[,] but yeah, I’m going
downhill[.] I’m 87 years old and figure . . . I won’t even be able to
open it at all by next year, probably.” Manager explained why he
wanted to replace the gate:

[The] number one [reason] . . . is my age and health
problems; number two is it’s just so much handier
to push a button, the gate opens, you drive through
it and go on. And after a minute it will automatically
close. . . . And it’s a much, much prettier gate.

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¶11 Manager referred to an electric gate with a solar panel that
he and his son had built and installed on his land, and he
explained that he wanted to build and install the same type of gate
to replace the existing one on the easement. He said that if he
installed the proposed gate, he would give the Trust “at least
four” remote-controlled “clickers” that would allow users to open
the gate without exiting their vehicles and he would also furnish
a keypad that would allow guests to punch in a combination to
open the gate, though they would “have to get out of their car[s]
to do that.” He further noted that the gate would close
automatically and then lock automatically. He pledged to pay all
costs associated with building, installing, and maintaining the
gate. He also stated that the proposed gate would not take up
more space than the existing one and that there would be no time
when the Trust could not access its property during installation.

¶12 As to the possibility of the electronics of the gate
malfunctioning, Manager stated,

[E]verything . . . mechanically or electric can break
down[.] [W]e . . . are not having any problem with
[the gate on our property], but if they do have a
problem . . . , then you merely use two keys, which
I will furnish the [Trust,] and you open the . . .
cylinder that pushes the gate open and closed and
[unlock] the locks on the gate and then it swings
freely.

Manager indicated that he would also furnish the Trust with at
least four sets of the keys necessary for the manual override. He
also said that he would like to, if the Trust is “agreeable,” “bury a
little plastic can there with a set of keys” in it so that the keys
would be available if the manual override were necessary and the
user did not bring a set of keys.

¶13 When asked about any issues he had encountered with his
electric gate, Manager candidly recounted that he had

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experienced “a lot of problems” with it when he and his son
“originally installed it,” due to changes in temperature moving
the post it hangs on, but he averred that they found a way to
“solve[] the problem.” He testified that the electric gate now
works “very fine.” And he indicated that an electric gate is “an
advancement in technology.”

¶14 Daughter and Son explained some of the concerns the
Trust has with an electric gate. First, Son spoke about his
experiences with an electric gate on a property he owned in
Arizona. He said that “it would work about a third of the time,”
even though the solar panel was “in the sun all the time,” and he
agreed that this experience made him concerned about the
reliability of the electric gate Manager was proposing.

¶15 Son and Daughter also conveyed that the Trust is
especially worried that the proposed gate would be less secure
than the existing gate. Son expressed concern with the aesthetic of
the gate, indicating that “the fancier things are,” the more likely
the public—who has access to the gate as it abuts a
county-maintained road—will think that the property owner has
things worth hiding. He and Daughter relayed that the Trust had
previously experienced issues with people removing signs
warning against trespassing and also “jimmy[ing] the gate to get
in” to the property. Daughter shared her worry that people would
steal the gate’s solar panel or disassemble the electric gate and
access the property. Son called the “security issue” a “huge deal”
and conveyed his feeling that having three ways to get through
the proposed gate (via “clickers,” a keypad, or physical keys)
would be less secure than the current system. And Daughter
testified that the use of the chain and locks had “always” “been
successful” and that she does not have “the same faith” in the
proposed gate. She further stated that “the thought of burying a
key by the gate scares [her].” On cross-examination, though,
Daughter and Son acknowledged that with the current gate there

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is a risk that someone could climb over the gate or cut the lock and
drive a car through the gate.

¶16 The Trust proffered the testimony of another family
member indicating (1) that she has horse equipment and
sometimes horses on the property and “the system that is in place
right now has protected those things” and (2) that “she worries
about emergency circumstances” like a fire and “believes that it’s
much, much more likely to be able to be taken care of with the
current system than with an [electric] gate.”

¶17 Daughter and Son also indicated that the proposed gate’s
electronic lock system would be less convenient for the Trust than
the current system involving dual combination locks and would
make controlling visitor access to the Trust property more
difficult. They explained that the Trust currently provides access
to the gate for family members and friends and for other
individuals like hunters and “cattle people” by telling approved
visitors the combination to the lock and then changing it as
needed to prevent unauthorized entry. Their testimonies clarified
that the parties currently do not need to communicate with each
other to receive authorization to change a combination or to
disseminate new combinations—the Trust changes the
combination on its lock independently and at its convenience. Son
testified that he did not know how to change the combination for
an electric gate keypad.

¶18 After closing arguments, the court provided an oral ruling.
It stated,

The case law, really, is pretty clear on this stuff[;]
this is fairly well-established law. . . . [T]he principle
is that the person who has the dominant estate[,]
which is, in this case, [C-B-K], can do whatever is
necessary to enjoy [the] easement and keep it in
repair, as long as [it] doesn’t do something that
unnecessarily inconveniences the owners of the

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subservient estate, which in this case is the [T]rust
....

. . . [T]his is obviously something that
[Manager] wants to do for his own convenience, but
that’s not really the question that the law looks at. It
doesn’t concern itself with [C-B-K’s] convenience, it
concerns itself with the [T]rust’s inconvenience.

....

The gate that’s currently there, though,
obviously is defective at times. . . . [E]ven from the
photos, you can tell that it hangs toward the ground
. . . [and] it drags at times. . . .

. . . [O]bviously, this gate does not function
always in a way that allows [C-B-K] to use [its]
easement without interference. . . .

And so with that in mind, the question then
really becomes, can [C-B-K] replace the gate with
one that swings more freely or can [it] repair the
gate that is currently there in a way that makes it
swing more freely? And I think the answer to that
question is absolutely yes. . . .

The harder question is whether that gate
changes from a chain lock, which it currently has, to
some sort of electronic opener. That’s really the crux
of all of this.

And the question with respect to the
electronic opener is, for the [T]rust, are there times
that it might fail? Is there a possibility that the solar
panel might not work? Do the overrides possibly
make it more difficult to use or make it more

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susceptible to misuse by people who get up there
and somehow override the mechanics? Are
managing keys for the overrides and the number of
clickers and all of those things somehow . . . an
unreasonable inconvenience for the [T]rust? And
the answer to that question, I think, is that yes, it is
an unreasonable inconvenience for the [T]rust.

There are benefits, for sure, to an electronic
gate, but there are also down sides to an electronic
gate. They do fail. There’s testimony that [Manager]
had difficulty with his own electronic gate. There’s
also testimony that the [T]rust’s experience with
electronic gates has [included] some failures.

Moreover, the [T]rust has a method now of
scrambling the security codes on its lock to try and
prevent misuse or . . . unauthorized use of its own
property. An electronic gate would prevent the
[T]rust from using its current system[;] it would
have to come up either with a way to [exchange]
clickers, a way to exchange keys or a way to
scramble the key pad in a way that would alter, for
its own protection, the application.

And so the answer really comes down to this:
[C-B-K], within the scope of [its] easement, can
absolutely repair, at [its] expense, the existing gate,
or replace the existing gate with something that
works and swings more freely, but that [new] gate
would have to swing freely and be attached with a
chain lock like the existing gate . . . . [T]he
mechanism for access has to stay the same;
otherwise, it becomes an unreasonable
inconvenience to the subservient estate, even if a
portion of that inconvenience is speculative

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inconvenience or even if a portion of that
inconvenience arises because dealing with
technology sometimes takes some time to
accommodate . . . .

¶19 The court then issued written findings and an order
consistent with its oral ruling. It stated, “The court orders that a
change to an electric gate becomes an unreasonable burden to the
subservient estate[,] even if a portion of this inconvenience is a
speculative inconvenience.” It further stated, “The court orders
that the scope of the easement does not permit [C-B-K] to change
the chain lock to an electronic access system.”

¶20 C-B-K now appeals.

ISSUE AND STANDARDS OF REVIEW

¶21 C-B-K asserts that the district court erred in restricting it
from replacing the current gate with an electric gate. Ultimately,
C-B-K takes issue with the court’s findings that “the scope of the
easement does not permit [C-B-K] to change the lock to an
electronic access system” and that “a change to an electric gate
becomes an unreasonable burden to the subservient estate.” In
determining the scope of a prescriptive easement and whether a
particular use of the easement would exceed that scope, “a district
court must make a number of factual findings regarding the . . .
nature of the easement’s use.” SRB Inv. Co. v. Spencer, 2020 UT 23,
¶ 6, 463 P.3d 654. The district court must also apply the correct
legal standard to its findings. See id. “We review the district
court’s conclusions regarding the legal standard for correctness.
And we review the court’s factual findings, including how the
court applied those findings to the correct legal standard, for an
abuse of discretion.” Id. (cleaned up). “[A]pplication of the wrong
legal standard” is “an abuse of discretion.” State v. Cuttler, 2015
UT 95, ¶ 2, 367 P.3d 981.

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ANALYSIS

¶22 In SRB Investment Co. v. Spencer, 2020 UT 23, 463 P.3d 654,
our supreme court emphasized that there is “an important
distinction between a prescriptive easement’s ‘type’ (or ‘purpose’)
and a prescriptive easement’s ‘scope.’” Id. ¶ 10. “Under this
distinction, a prescriptive easement’s type should be categorized
broadly based on the general purpose for which the easement
over the servient estate has historically been used. And a
prescriptive easement’s scope should be defined with
particularity based on the nature, or extent, of that historical use.”
Id. Here, the type of easement C-B-K holds is an access easement,
or an easement for ingress and egress. The scope of the easement
and whether a particular use exceeds that scope, however, is
determined through a fact-intensive inquiry applying the correct
legal standard to the facts of the particular case. See id. ¶ 19.

¶23 The court in SRB provided useful guidance for
determining an easement’s scope:

There are a number of factors that courts
consistently consider in determining the scope of a
prescriptive easement. . . . [T]he purpose of
considering these factors is to determine the burden
that has historically been placed on the servient
estate. With this purpose in mind, courts almost
always consider the physical dimensions of the
historical use of the servient estate. They also
consider the frequency and intensity of the use, as
well as the effect of the use on the aesthetic and
economic value of the property.

Id. ¶ 20. The SRB court clarified, though, that “the ultimate
criterion in determining the scope of a prescriptive easement is
that of avoiding increased burdens on the servient estate,” and it
directed courts to “consider any and all factors that may
contribute to that burden.” Id. ¶ 22 (cleaned up).

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¶24 In this case, the Trust does not contend that C-B-K is
seeking to expand the physical dimensions of the easement or the
frequency of its use of the easement. Additionally, the district
court did not explicitly reference intensity of use or the aesthetic
and economic value of the property in rendering its decision
regarding C-B-K’s proposed changes to the easement. Rather, the
district court analyzed several other factors in determining the
burden historically placed on the Trust’s land by C-B-K’s use of
the easement and whether the proposed electric gate would result
in an unreasonable burden on the Trust’s estate. In its oral ruling,
the court discussed, among other things, how the gate had
historically been secured by a chain lock and how the Trust
“scrambl[ed] the security codes on its lock to try and prevent
misuse or . . . unauthorized use of its own property.” The court
found that “[a]n electric gate would prevent the [T]rust from
using its current system.” The court also discussed the possibility
that the electronics would fail or the override mechanism could
make the gate “more susceptible to misuse.” It ultimately
concluded in its written order that “a change to an electric gate
[would be] an unreasonable burden” on the Trust’s estate.

¶25 In reaching this conclusion, however, the district court did
not identify or apply multiple components of the legal standard
that applies when a dominant estate owner seeks to make changes
to the use of an easement. We identify those overlooked—and
potentially overlooked—components and remand for the district
court to apply the correct legal standard to the facts of this case.

¶26 The first part of the applicable legal standard the district
court overlooked is that in evaluating a proposed upgrade to an
easement, courts should begin with “the common law
presumption that parties to an easement anticipate increased
future use and reasonable technological improvements.” Stern v.
Metropolitan Water Dist., 2012 UT 16, ¶ 69, 274 P.3d 935. Our
supreme court has explained that “there is a firmly established
background rule that an easement holder may make technological

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upgrades to its property, so long as they are not unreasonably
burdensome to the servient estate.” Id.; see also Hubble v. Cache
County Drainage Dist. No. 3, 259 P.2d 893, 896 (Utah 1953) (“[T]he
law favor[s] changes and improvements for the benefit of the
dominant estate so long as the manifest intent of the parties does
not disallow the changes and the burden to the servient tenement
is not increased.”); Big Cottonwood Tanner Ditch Co. v. Moyle, 174
P.2d 148, 160 (Utah 1946) (“Plaintiff would not be exceeding its
easement in improving its ditches provided the improvements
are, under all the circumstances, made in a reasonable manner
and they do not cause unnecessary injury to the servient
owners.”).

¶27 It is not clear that the district court applied this
presumption. While the court acknowledged that there are both
“benefits” and “down sides” to an electric gate, the court
concluded that the “mechanism for access” to the easement could
not be upgraded technologically because doing so presents “an
unreasonable inconvenience to the [Trust’s] estate[,] . . . even if a
portion of that inconvenience arises because dealing with
technology sometimes takes some time to accommodate.” The
court appears to have identified the fact that there is a learning
curve associated with adapting to any new technology as at least
part of the basis for its decision that the installation of an electric
gate would result in an unreasonable burden on the Trust’s estate.
This runs contrary to the well-established presumption in favor of
technological advancements. See Stern, 2012 UT 16, ¶ 69. On
remand, the court should begin with the presumption that
technological advances are favored and not assign an increased
burden to the servient estate from the mere fact that some learning
and adjustment are necessitated any time new technology is
employed.

¶28 The second part of the applicable legal standard that the
district court overlooked is that when a proposed change to an
easement would, on its face, impose a burden on the servient

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estate, that is not the end of the court’s inquiry. “[I]n considering
changes to the use of an easement or the servient estate, we apply
a flexible rule that seeks to accommodate reasonable changes in
use.” SRB Inv. Co. v. Spencer, 2020 UT 23, ¶ 33, 463 P.3d 654. The
SRB court explained that “the right of the easement owner and the
right of the land-owner are not absolute, irrelative, and
uncontrolled, but are so limited, each by the other, that there may
be a due and reasonable enjoyment of both.” Id. (cleaned up).
Accordingly, “in determining the scope of a prescriptive right,
courts should take a flexible approach that permits changes of use
so long as those changes do not materially burden the servient
estate or materially interfere with the prescriptive right.” Id. ¶ 38
(emphasis added).

¶29 In making this point, the court discussed its previous
decision in North Union Canal Co. v. Newell, 550 P.2d 178 (Utah
1976):

In that case a canal company sought to enjoin the
owners of the servient estate from maintaining a
fence around their property because it placed a
burden on the canal company’s easement right to
enter the property for the purpose of performing
maintenance on its canal. In considering this
argument, we observed that whenever there is
ownership of property subject to an easement there
is a dichotomy of interests, both of which must be
respected and kept in balance. We then noted that
the fence constructed on the servient estate would
interfere with the canal company’s use and
enjoyment of its easement. From this, we explained,
the logical conclusion would seem to be that the
fence should be removed. But we declined to order
the fence’s removal.

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In declining to order such a stringent
measure, we explained that the object to be desired
in easement cases is to find some accommodation of
those conflicting interests, to the maximum
advantage and to the minimum disadvantage of
both parties. So with this object in mind, we
declined to order the removal of the fence, but we
ordered the owners of the servient estate to
maintain gates at reasonable intervals in the fence
along the canal bank to allow the canal company
access thereto as its needs may arise. Accordingly,
our decision in North Union Canal Co. confirms that,
in considering changes to the use of an easement or
the servient estate, we apply a flexible rule that
seeks to accommodate reasonable changes in use.
And our case law suggests that a reasonable change
in use is any change that does not materially
increase the burden on the servient estate or
materially restrict the use of the easement.

SRB, 2020 UT 23, ¶¶ 34–35 (cleaned up). In sum, a court should
not end its inquiry when it identifies a burden that a proposed
change will place on the servient estate; rather, if it finds that the
change as proposed will place a burden on the servient estate, it
should then determine whether there is an accommodation that
will meet the needs and interests of both parties in a way that
renders any resulting change to the burden on the servient estate
a reasonable one. See id.; see also Judd v. Bowen, 2017 UT App 56,
¶ 42, 397 P.3d 686 (“The rights of the easement holder and the
landowner must be capable of being balanced so as to afford each
the ability to use and enjoy the rights attendant to use the property
for a limited purpose on the one hand and ownership on the
other.” (cleaned up)), cert. dismissed as improvidently granted, 2018
UT 47, 428 P.3d 1032.

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¶30 We do not see this flexible approach reflected in the district
court’s oral ruling or written order in this case. Regarding the
proposed change to an electric fence, the court said, “[T]his is
obviously something that [Manager] wants to do for his own
convenience, but that’s not really the question that the law looks
at. It doesn’t concern itself with [C-B-K’s] convenience, it concerns
itself with the [T]rust’s inconvenience.” But as SRB and North
Union Canal Co. illustrate, that is not entirely true. See SRB, 2020
UT 23, ¶¶ 34–35; North Union Canal Co., 550 P.2d at 179–80; see also
Mize v. Ownby, 225 S.W.2d 33, 34 (Tenn. 1949) (considering the
dominant estate’s “annoyance in opening and closing gates”);
White v. Allen, 2005 WY 72, ¶¶ 13–17, 115 P.3d 8 (discussing the
inconveniences to a dominant estate owner’s use of an easement
containing a double set of manual gates, and affirming the district
court’s ruling that the dominant estate owner could replace the
gates with cattle guards for his convenience); Restatement (Third)
of Property: Servitudes § 4.10 cmt. c (Am. L. Inst. 2000) (“This
section states the general rule that the holder of an easement is
authorized to make any use of the servient estate that is
reasonably necessary for the convenient enjoyment of the easement.”
(emphasis added)); id. cmt. e (“When reasonably necessary to the
convenient enjoyment of an easement, the holder of the easement may
make improvements and construct improvements on the servient
estate for enjoyment of the easement. These rights are subject to
. . . the proviso that the holder of the servitude is not entitled to
cause unreasonable damage to the servient estate or interfere
unreasonably with its enjoyment.” (emphasis added)). Again,
district courts are expected to consider the needs and interests of
both parties to an easement and may use their equitable powers
to accommodate them.

¶31 While the district court here did rule that C-B-K could
repair the existing gate or replace it with a similar gate secured by
a chain lock, that ruling merely addressed the problem of the
existing gate “not function[ing] always in a way that allows
[C-B-K] to use [its] easement without interference.” But C-B-K

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proposed the electric gate not just as a solution to the occasional
malfunctions of the existing gate but also as a standalone
improvement. Manager testified that the “number one” reason he
wanted to replace the gate was his “age and health problems,” but
his “number two” reason was for ease of use and improved
appearance: “[I]t’s just so much handier to push a button, the gate
opens, you drive through it and go on. And after a minute it will
automatically close. . . . And it’s a much, much prettier gate.” Even
if Manager’s first reason for proposing an electric gate was to
remedy the defective nature of the current gate, his second reason
for proposing an electric gate was to increase C-B-K’s ease of use
of the easement and to improve the appearance of the easement’s
access point. And the court’s ruling did not address these points
or seek to accommodate C-B-K’s interests in these respects.

¶32 The district court, on remand, should perform the type of
accommodation analysis discussed above to determine whether
both parties’ needs and interests can be met to some degree. If it
identifies an acceptable accommodation, implementing it
“concededly will require some maturity of attitude and
cooperation between the parties.” North Union Canal Co., 550 P.2d
at 180. If, on the other hand, the court determines that
accommodating both the Trust’s and C-B-K’s needs and interests
is not possible without imposing an unreasonable burden on the
Trust’s estate, its order should include findings of the specific
inconveniences that would unreasonably burden the Trust’s use
of the property and why no accommodation could sufficiently
mitigate those inconveniences.

¶33 The third part of the applicable legal standard that the
district court may have overlooked is that when determining
whether a proposed change to an easement will result in an
unreasonable burden to the servient estate, a court may not give
weight to burdens that are “purely speculative.” Metropolitan
Water Dist. v. Questar Gas Co., 2015 UT App 265, ¶ 40, 361 P.3d 709,
cert. denied, 369 P.3d 451 (Utah 2016). While the court may

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consider a burden that has some likelihood of arising due to a
proposed change, see Restatement (Third) of Property: Servitudes
§ 4.9 cmt. c (Am. L. Inst. 2000) (“Whether the improvement is an
unreasonable interference with the servitude depends on the
character of the improvement and the likelihood that it will make
future development of the easement difficult.”), burdens about
which the parties can “only speculate” are not appropriate for
consideration when evaluating the reasonableness of the use of an
easement or of the servient estate, Questar Gas, 2015 UT App 265,
¶¶ 32, 40.

¶34 For example, in Questar Gas, a water district filed a
complaint alleging that the unlicensed presence of a natural gas
pipeline running through its pipeline corridor unreasonably
burdened the easement, and our court held that evidence of future
burdens due to circumstances about which the easement holder
could “only speculate” did not create a genuine issue of material
fact as to the present existence of an unreasonable burden. Id.
¶¶ 2, 3, 11, 32, 40. The water district “conceded that it ha[d] no
present plans to do any work” in the easement, citing only
“‘preliminary plans’ for replacement work sometime in the next
several decades,” and we concluded that, “[a]s such, the [water
district] ha[d] no way of knowing with certainty what repairs and
rehabilitation work, if any, will be undertaken in the future, nor
what the scope and nature of those potential construction projects
will be.” Id. ¶ 32. Accordingly, we called “any suggestion that
Questar would not accommodate the [water district’s]
rehabilitation work when acquainted with [its] plans” “entirely
speculative.” Id. We highlighted how, “[u]nder the present facts,
there is no indication that Questar’s pipeline unreasonably
interferes with the [easement],” and we determined the water
district’s “claim that Questar’s pipeline will interfere with its
future construction plans” “purely speculative at this time.” Id.
¶ 40 (emphasis added). We stated that “we will not reverse the
judgment of the district court on the basis of

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what might happen if the [water district’s] contemplated repairs
do in fact occur.” Id.

¶35 Here, the district court found that an electric gate would
unreasonably burden the Trust’s estate, “even if a portion of that
inconvenience is speculative inconvenience.” Without more
explanation, however, we are unable to discern whether the
speculative inconveniences the court identified amounted to
purely speculative burdens or to burdens that have at least some
present likelihood of arising. While the Trust’s witnesses testified
that an electric gate would frustrate their current system of
changing and sharing their combinations—a clearly
nonspeculative inconvenience—they also testified to some
concerns that may have some present likelihood of arising or may
be purely speculative, including fears that an electric gate would
be less effective during a fire or other emergency, that people
would disassemble the gate or break the gate’s solar panel, 2 and
that passersby would interpret the electric gate as a signal that the
property housed valuable items and therefore decide to break into
and damage the Trust’s estate. The Trust provided evidence that
its signs and gate had been tampered with before, but it did not
provide more than its own bare assertions of concern to support
several other alleged inconveniences that would result from
installing an electric gate. Because the court acknowledged that
some portion of the overall inconvenience the Trust identified is
speculative and did not, when making its finding that an electric
gate would unreasonably burden the servient estate, explain that
it was not relying on purely speculative burdens, we cannot
determine whether the court improperly gave weight to purely
speculative burdens. The evaluating and weighing of alleged

2. Even if this is not a purely speculative concern, C-B-K’s
agreement to bear the cost of maintaining an electric gate, coupled
with the existence of mechanical workarounds that could be
employed until a repair could be made, largely, if not wholly,
mitigate any burden on the Trust due to a broken solar panel.

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inconveniences are tasks reserved for the factfinder. See Stern v.
Metropolitan Water Dist., 2012 UT 16, ¶ 73, 274 P.3d 935 (reiterating
that “reasonableness and the materiality of a burden are questions
for the fact finder”); McBride v. McBride, 581 P.2d 996, 998 (Utah
1978) (“The determination of the reasonableness of locked gates is
necessarily governed by the facts of each case . . . .”). On remand,
the court should identify the inconveniences it bases its decision
on and clarify that its finding as to whether the proposed gate
unreasonably burdens the Trust’s estate does not rely on purely
speculative inconveniences.

CONCLUSION

¶36 The district court did not apply the correct legal standard
to determine the scope of C-B-K’s easement. Therefore, the court
exceeded its discretion in finding that C-B-K’s proposed electric
gate would unreasonably burden the Trust’s estate. We reverse
and remand this matter for the court to perform that evaluation
under the correct legal standard. On remand, the court should
apply the legal presumption in favor of technological
advancements, determine whether an accommodation of both
parties’ interests is possible without imposing an unreasonable
burden on the servient estate, and not consider purely speculative
burdens on the servient estate.

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