Metropolitan Water v. Sorf

2023 UT App 146

THE UTAH COURT OF APPEALS

METROPOLITAN WATER DISTRICT OF SALT LAKE & SANDY,
Appellant,
v.
ZDENEK SORF,
Appellee.

Opinion
No. 20220025-CA
Filed December 7, 2023

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 100921025

Shawn E. Draney, Scott H. Martin, Danica N.
Cepernich, and Nathanael J. Mitchell,
Attorneys for Appellant
Paul M. Belnap and S. Spencer Brown,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.

HARRIS, Judge:

¶1 The Metropolitan Water District of Salt Lake & Sandy (the
District) operates the Salt Lake Aqueduct (the Pipeline), a forty-
two-mile pipeline that provides culinary water for use in the Salt
Lake Valley. Part of the Pipeline runs underneath Zdenek Sorf’s
backyard. The District owns a 125-foot-wide easement
(Easement)—acquired by warranty deed—over Sorf’s land for the
purpose of operating and maintaining the Pipeline.

¶2 In 2009, Sorf installed improvements (Improvements) in
his backyard, including a shed, a hot tub, a deck, and landscaping
 Metropolitan Water District v. Sorf

features. Some of the Improvements, in whole or in part, are
located within the Easement. In 2010, the District sued Sorf,
alleging that his Improvements unreasonably interfered with the
District’s use (or potential use) of the Easement, and asked the
trial court for, among other things, injunctive and declaratory
relief compelling Sorf to remove the Improvements.

¶3 After a trial, a jury determined that Sorf’s Improvements
did not unreasonably interfere with the District’s use and
enjoyment of the Easement. Following the verdict, the trial court
entered judgment in favor of Sorf. The District appeals, asserting
that the court improperly instructed the jury and improperly
allowed testimony from Sorf’s expert witness. In particular, the
District asks us to adopt a bright-line legal rule that the placement
of any permanent structure inside an easement of definite
dimensions conveyed by grant is unreasonable as a matter of law.
We decline the District’s invitation to adopt such a legal rule in
this case, reject the District’s remaining arguments, and therefore
affirm the judgment.

BACKGROUND

¶4 The District is a governmental entity that provides water
to many of the cities in the Salt Lake Valley. Between 1939 and
1951, the District constructed the Pipeline, which runs for
approximately forty-two miles, mostly underground, from Deer
Creek Reservoir near the top of Provo Canyon to a terminal
storage reservoir near the mouth of Parleys Canyon. The Pipeline
is made of steel (in some sections) and reinforced concrete (in
others) and is large enough for an average-sized person to walk
upright inside it: the Pipeline has a sixty-nine-inch inside
diameter and an eighty-four-inch outside diameter. The concrete
part of the Pipeline consists of a series of twenty-foot-long
sections, with each one weighing about twenty tons. The Pipeline
plays an important role in supplying adequate culinary water for
the large and growing population of the Salt Lake Valley. During

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most of the summer, the Pipeline runs at its maximum capacity,
transporting about 113 million gallons of water per day.

¶5 The strip of land under (or over) which the Pipeline runs is
known as the SLA Corridor. Parts of the real property comprising
the SLA Corridor are owned by the District outright. But other
parts are owned by third parties, and in those sections the District
holds easements over the land; those easements allow the District
to use the SLA Corridor as necessary to operate and maintain the
Pipeline. In 1946, the District acquired—by warranty deed and for
good and valuable consideration—the Easement over the
property currently owned by Sorf. Under its specific terms, the
Easement allows the District “to construct, reconstruct, operate
and maintain a pipeline or pipelines on, over and across” Sorf’s
property. The deed describes with particularity the metes and
bounds of the Easement: as relevant here, the Easement is 125 feet
wide for most of its length and passes through Sorf’s backyard.1
As it passes through Sorf’s property, the Pipeline is buried about
eight feet underground, and is located off-center, some fifty feet
from the Easement’s eastern boundary and some seventy-five feet
from its western boundary.

¶6 Sorf purchased his property in 1988, and at the time found
the backyard to be “a mess” with “a bunch of trees and brushes.”
Starting in 2009, Sorf began the process of improving his
backyard, and he removed many of the trees and other vegetation
that had been there since his acquisition. More significantly for
present purposes, Sorf also constructed or installed the

1. On Sorf’s property, the Easement was originally entirely
contained within Sorf’s backyard, with one exception: one corner
of Sorf’s house encroached some two to four feet into the
easement corridor. However, the District later abandoned the part
of the Easement that ran through Sorf’s house; thus, at present,
the Easement in that spot is not quite 125 feet wide. Currently,
then, the entire Easement is located in Sorf’s backyard.

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Improvements in his backyard, including a covered deck with a
hot tub, a larger uncovered deck, a “small shed on concrete
blocks,” a “Tuff Shed barn” with a “concrete slab” underneath
and around it, a “pond and water feature,” a decorative rock wall,
and a “rock retaining wall.” 2 The Improvements are located, in
whole or in part, inside the 125-foot-wide Easement. Some of
them are located on the margins of the Easement, some distance
from the Pipeline, but others are located closer to the center of the
Easement, near the Pipeline’s location. All the Improvements are
located at least nineteen feet from the center line of the Pipeline,
except for one section of the decorative rock wall that runs
perpendicular to the Pipeline and crosses it at one point. A visual
depiction of these Improvements and their proximity to the
Pipeline is included in an appendix to this opinion.

¶7 When the District learned of Sorf’s Improvements, it
informed Sorf that he needed permission from the District to build
them, which permission the District later denied. Despite the
District’s disapproval, Sorf continued with installation of the
Improvements, and the District responded in October 2010 by
filing this lawsuit. In the suit, the District alleged that Sorf’s
Improvements unreasonably interfered with the District’s use and
enjoyment of the Easement. 3 Sorf failed to timely respond to the

2. The project also included upgrading the gates, one on each end
of Sorf’s property, by which the backyard could be accessed. The
new gates are large enough to accommodate construction trucks.
Following completion of the project, Sorf provided the District
with codes to the gates, and the District has used those gates to
access Sorf’s property on several occasions.

3. The District also asserted that the Improvements violated
certain regulations, enacted by the District itself, that it believed
governed the conduct of property owners whose land was subject
to District easements. But the District voluntarily dismissed that
(continued…)

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complaint, and default judgment was entered against him. But in
this case’s first trip to the appellate courts, our supreme court set
aside that default judgment and remanded the case to the trial
court for further proceedings. See Metropolitan Water Dist. of Salt
Lake & Sandy v. Sorf, 2013 UT 27, ¶ 26, 304 P.3d 824.

¶8 After remand, Sorf filed a motion for summary judgment
asserting that the District’s easement-interference claims were not
ripe for adjudication because the District did not have any current
plans to refurbish or replace the Pipeline. The trial court granted
Sorf’s motion, noting that the Pipeline “is in good shape and all
indications are that it will not need to be accessed for
reconstruction or maintenance for at least the next 10-15 years,”
and that therefore “no actual or imminent clash of legal rights
related to the [E]asement” was before the court. In this case’s
second trip to the appellate courts, our supreme court again
reversed, concluding that there was a justiciable question about
whether Sorf’s Improvements “encroach upon [the District’s]
property rights” and about whether Sorf “has unreasonably
interfered with” the District’s Easement. See Metropolitan Water
Dist. of Salt Lake & Sandy v. Sorf, 2019 UT 23, ¶ 12, 445 P.3d 443.
Specifically, the court stated that “the question left unanswered
. . . is whether [Sorf’s Improvements] have interfered with [the
District’s] present right to access the [Pipeline] through its
[E]asement, for the purposes of ongoing maintenance.” Id.

¶9 Following the second remand, the case proceeded toward
trial. In the weeks leading up to trial, the District submitted
proposed jury instructions and a proposed special verdict form,
several aspects of which are relevant to this appeal. First, the
District asked the trial court to instruct the jury that any

portion of its lawsuit following our supreme court’s ruling that
the District did not have the power to enact such regulations. See
Metropolitan Water Dist. of Salt Lake & Sandy v. SHCH Alaska Trust,
2019 UT 62, ¶ 11, 452 P.3d 1158.

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“permanent structure located within an easement of definite
location and dimensions is unreasonable” as a matter of law. The
court refused to give the instruction, offering its view that the
proposed instruction did not reflect current Utah law.

¶10 Second, the District asked the trial court to give the
following jury instructions regarding Sorf’s and the District’s
respective obligations regarding the Easement:

Actions and things that make it more difficult for the
owner of an easement to use the easement, that
interfere with the ability to maintain and repair
improvements built for use of the easement, or that
make using the easement more risky are considered
to be unreasonable interferences that are not
allowed.

When deciding whether Mr. Sorf’s [I]mprovements
unreasonably interfere with the District’s use of its
[E]asement or not, you should consider the
character of the [I]mprovements and the likelihood
that they will make future use of the [E]asement
more difficult. If [an] improvement is temporary
and easily removed, it is generally not
unreasonable. The more expensive the
improvement is or the more difficult it likely is to
remove, the more likely it is that the improvement
is an unreasonable interference with the [E]asement.

And,

In using its [E]asement for the repair, replacement,
and reconstruction of the [Pipeline], the District has
the right to use the full width of its [E]asement. The
District does not need to establish that the full width
is necessary or reasonably necessary for its use. It
also is not required to use a very expensive or

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unusual method because Mr. Sorf prefers it or
because that method would be slightly less
burdensome to Mr. Sorf’s property.

¶11 The trial court refused to give these instructions in
precisely the form suggested by the District. Instead, the court
instructed the jury as follows:

When deciding whether Mr. Sorf’s [I]mprovements
unreasonably interfere[] with the District’s use of its
[E]asement or not, you may consider the nature and
character of the [I]mprovements within the
[E]asement.

The District as the [E]asement owner, can use its
[E]asement for the repair, replacement and
reconstruction of the [Pipeline] so long as it does not
unreasonably interfere with Mr. Sorf’s reasonable
use of his property within the [E]asement. When
deciding whether the District’s use of its [E]asement
unreasonably interferes with Mr. Sorf’s use of his
property or not, you may consider the nature,
character and method to be used for the repair,
replacement, and reconstruction of the [Pipeline].

The District can use up to the full width of its
[E]asement for the repair, replacement, and
reconstruction of the [Pipeline] in any particular
method it chooses so long as the District does not
unreasonably interfere with Mr. Sorf’s reasonable
use of his property.

You must determine whether Mr. Sorf’s
[I]mprovements to his property located within the
District’s [E]asement unreasonably interfere with
the District’s use of its [E]asement to construct,
reconstruct, operate, and maintain the [Pipeline].

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 Metropolitan Water District v. Sorf

¶12 Third, the District asked the court to utilize a special
verdict form that asked the jury some version of this question:
“Do any of Mr. Sorf’s [I]mprovements, whether individually or taken
together, unreasonably interfere with the District’s [E]asement?”
(Emphasis added.) Sorf objected, arguing that asking about
cumulative effect would be “utterly unworkable in practice”
because, at the end of the trial, the court should “be able to tell
exactly what, if anything, the jury finds to be an unreasonable
interference so that, if necessary, it can fashion an appropriate
remedy.” The court declined to ask the jury about any cumulative
effect of the Improvements, reasoning that “the jury needs to
decide on which individual [I]mprovements they . . . consider to
be a problem.” Thus, the special verdict form ultimately given to
the jury contained ten separate questions, each asking about one
of (or one grouping of) Sorf’s Improvements, but did not contain
a question asking whether the combined effect of all those
Improvements, taken together, constituted unreasonable
interference with the District’s easement rights.

¶13 In addition to these requests regarding the jury
instructions and special verdict form, the District made one other
relevant pretrial request: it asked the trial court to prevent Sorf’s
expert witness, a geotechnical engineer (Engineer), from offering
any testimony about what sorts of uses might be “reasonably
necessary” for the District to employ on the Easement. The court
denied the District’s motion, determining that Engineer could
provide evidence on whether the District was using, or planned
to use, the Easement “in a way that does not unreasonably
interfere with the property rights of the owner of the land.”

¶14 The jury trial lasted four days. It included a site visit to
Sorf’s property so that the jurors could see for themselves what
the Improvements looked like and how they were located in Sorf’s
backyard. And it included another site visit to view a segment of
the pipe used for the Pipeline. The jury also saw many pictures,
videos, and diagrams of Sorf’s property.

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¶15 In addition, the jury heard testimony from three witnesses:
a prior manager of the Pipeline (Manager), Engineer, and Sorf
himself. The District first called Sorf to testify about the nature
and location of the Improvements. During this initial testimony
(as well as later testimony during his own case-in-chief), Sorf
testified that all the Improvements could be moved if necessary to
facilitate repairs or maintenance of the Pipeline. He testified that
he had no intention of getting in the District’s way if it needed to
utilize his property for purposes of maintaining the Pipeline, and
that if any of the Improvements turned out to be “in the way” at
a later time, he would “remove them” upon request.

¶16 The District next called Manager, who testified about the
history and use of the Pipeline. Manager explained that the
District was created in 1935, and that construction of the Pipeline
began in the late 1930s but was not fully completed until 1951. The
Pipeline was anticipated to have about a one-hundred-year useful
life, but Manager testified that it is “aging gracefully” and that
recent inspections—carried out by having an inspector walk
through the inside of the Pipeline—have revealed that the
Pipeline “is actually in . . . good shape . . . as it ages.” At some
point, however, the District will need to replace or rehabilitate the
Pipeline, a project that the District anticipates will begin in the
“late 2030s to 2040.”

¶17 During his direct examination, Manager discussed three
options that the District is considering for replacing or
rehabilitating the Pipeline: reconstructing the Pipeline in its
existing location, constructing an entirely new pipeline next to the
existing one, or “slip-lining” 4 the Pipeline in its existing location.
The first two options—reconstructing the existing pipeline or
constructing a new one parallel to the old one—would each
require substantial excavation, though the particular amount of

4. Slip-lining entails inserting fiberglass material through the
inside of the Pipeline that “lines the pipe” and rehabilitates it.

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excavation would “depend[] upon the natural features that are
involved” in various locations along the Pipeline’s route.
Manager believed that constructing a parallel pipeline was the
most viable option. He did not believe that slip-lining was a viable
option, because slip-lining would reduce the capacity of the
Pipeline so that it “would not be able to deliver . . . water at the
capacity that the member cities and others require.” Manager
acknowledged that, at present, the District does not “have any
engineered plans for what option they’re going to pick when the
time comes to replace or rehabilitate” the Pipeline. According to
Manager, “one of the driving factors would be value and doing
the job as economically as possible.”

¶18 Manager also discussed various excavation methods the
District may use if it selects one of the first two options, and noted
that the precise method used in any given location would
ultimately be up to the contractor. Manager offered his view that,
no matter the excavation method selected for Sorf’s property, the
“Improvements will make the operation for construction within
that Easement more complex and more costly” because, in his
view, the Improvements limit the District’s ability to freely and
easily access portions of the Easement with the necessary
equipment, and they hinder the District’s ability to place
excavation material in convenient locations.

¶19 Manager also explained that the District inspects the
Pipeline on a regular basis, every one to three years depending on
the section. These inspections are done visually from the inside,
and thus must occur—along with most necessary non-emergency
repairs—during times (usually fall or winter) when the Pipeline
is shut down. Because non-emergency repairs and inspections
usually occur internally, the District does not need to enter upon
the surface of Sorf’s land to conduct them, and landowners like
Sorf usually are not even aware that they are taking place. Even
many emergency repairs can be taken care of internally, by
shutting the Pipeline down and sending workers inside.

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 Metropolitan Water District v. Sorf

¶20 Sometimes, however, the District has had to conduct
emergency repairs to the Pipeline that have necessitated
excavation. While these occasions have been extremely rare so
far—Manager could recall just two such occasions, neither of
which affected Sorf’s property—Manager offered his view that
such repairs may become more common as the Pipeline ages.

¶21 Manager stated that for any planned (non-emergency)
repairs or construction, the District has a “public involvement”
process where it notifies property owners well in advance. If the
District decides to replace or reconstruct the entire Pipeline, the
project would likely take more than twenty years to complete, and
during the construction period there would be “sequencing and
staging” during which affected landowners would be notified
well in advance “as the project approached.”

¶22 During cross-examination of Manager, Sorf’s counsel
posited that building a new pipeline next to the old one would be
far more expensive than certain other options, and Manager
acknowledged that, according to recent studies, replacing the
Pipeline would cost $200 to $300 million, while slip-lining the
Pipeline could potentially be accomplished for around $15 million
and yet another method of extending the Pipeline’s lifespan—
treating joints with a mechanical joint treatment—would only cost
around $8 million. Manager acknowledged that the joint-
treatment method is “one of the options that’s continuing to be
considered” and that it “would be an economical approach.”
Sorf’s counsel also pointed to a study that refuted Manager’s
position on loss of capacity from slip-lining because any loss of
capacity is “offset by a decrease in the internal friction loss” so
that “the hydraulic capacity of the pipe is not reduced.”

¶23 Manager also testified that the District has developed a
practice of allowing existing trees to remain in place if they are at
least twenty feet away from the center of the Pipeline, so that a
forty-foot corridor is available for potential excavations. The two

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emergency repairs that required excavation were both
accomplished within this forty-foot range. But Manager was not
able to say that all repairs could be done within that range. Sorf’s
counsel pointed out—and Manager acknowledged—that most of
the Improvements were outside of this forty-foot area (the
exceptions being the decorative rock wall and one small section of
the rock retaining wall) and many were significantly outside it.

¶24 Finally, Sorf called Engineer to testify about how—based
on the efficacy and cost of current engineering and excavation
techniques, as well as the geology of Sorf’s property—the District
would be likely to proceed should excavation become necessary
in Sorf’s backyard. Engineer testified that Sorf’s Improvements
were very unlikely to materially interfere with any excavation the
District was likely to conduct. As an initial matter, Engineer
testified that the joint-treatment option would not require any
excavation at all—and was therefore “much cheaper”—yet would
likely extend the life of the Pipeline by “25 to 50 years.” But he
also testified that, even if the District did someday see a need to
excavate the Pipeline on Sorf’s property, any such excavation
would likely be conducted through a “vertical trench” that would
only be about fifteen feet wide, and he offered his view that
“there’s enough space to get equipment in there . . . without doing
significant demolition or movement of” the Improvements. And
he testified that, even if it somehow became necessary to remove
the Improvements in order to facilitate District activity on the
property, removing them “wouldn’t be difficult at all.” Overall,
Engineer opined that none of Sorf’s Improvements “unreasonably
interfere with the District’s ability to access” the Pipeline.

¶25 After deliberation, the jury answered each of the ten
questions on the special verdict form in the negative: in its view,
none of the ten individual (or groups of) Improvements
unreasonably interfered with the District’s use and enjoyment of
the Easement. A few weeks later, based on the jury’s verdict, the
trial court entered judgment in favor of Sorf.

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 Metropolitan Water District v. Sorf

ISSUES AND STANDARDS OF REVIEW

¶26 The District now appeals, raising several issues for our
consideration. First, it claims that the court made certain errors
when it instructed the jury. We review a trial court’s “refusal to
give a jury instruction for abuse of discretion.” Miller v. Utah Dep’t
of Transp., 2012 UT 54, ¶ 13 & n.1, 285 P.3d 1208. But if the court
made a legal error in its instructions, we do not defer to the court’s
ruling. See id. (stating that “an error of law always constitutes an
abuse of discretion”); see also State v. Eyre, 2021 UT 45, ¶ 13, 500
P.3d 776 (“Claims of erroneous jury instructions present questions
of law that we review for correctness.” (quotation simplified)).

¶27 Next, the District challenges the court’s refusal to ask the
jury, on the verdict form, about the cumulative effect of Sorf’s
Improvements. “We review a trial court’s decision to accept a
proposed special verdict form for an abuse of discretion” and “we
will not reverse a judgment merely because there may have been
error” in that regard; indeed, “reversal occurs only if the error is
such that there is a reasonable likelihood that, in its absence, there
would have been a result more favorable to the complaining
party.” Senkosky v. Bistro 412 LLC, 2022 UT App 58, ¶ 20, 512 P.3d
477 (quotation simplified).

¶28 Finally, the District claims that the court erred by not
limiting Engineer’s testimony. “Two different standards of review
apply to claims regarding the admissibility of evidence.” Smith v.
Volkswagen SouthTowne, Inc., 2022 UT 29, ¶ 41, 513 P.3d 729
(quotation simplified). We review for correctness any “legal
questions underlying the admissibility of evidence,” but we
review for abuse of discretion any decisions “to admit or exclude
evidence and . . . determinations regarding the admissibility of
expert testimony.” Id. (quotation simplified); see also State v.
Butterfield, 2001 UT 59, ¶ 28, 27 P.3d 1133 (“Trial courts have
considerable discretion in determining the admissibility of expert

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testimony, and such decisions are reviewed under an abuse of
discretion standard.” (quotation simplified)).

ANALYSIS

¶29 We first examine the District’s arguments regarding the
trial court’s jury instructions. Next, we address the District’s
challenge to the special verdict form the court provided to the
jury. And finally, we assess the District’s arguments regarding the
court’s refusal to limit Engineer’s testimony.

I. Jury Instructions

¶30 With regard to jury instructions, the District raises two
issues. First, it asserts that the court should have instructed the
jury that the placement of any permanent structure inside an
easement of definite dimensions conveyed by grant is
unreasonable as a matter of law. Second, it claims that the court’s
instructions regarding the parties’ mutual obligation not to
unreasonably interfere with the other’s use of the land within the
Easement were incomplete, inaccurate, and misleading. For the
following reasons, we reject these arguments.

A

¶31 Utah law regarding easements has long been characterized
by the principle that “the owners of the dominant and servient
estates must exercise their rights so as not unreasonably to
interfere with the other.” Metropolitan Water Dist. of Salt Lake
& Sandy v. Questar Gas Co., 2015 UT App 265, ¶ 30, 361 P.3d 709
(quotation simplified), cert. denied, 369 P.3d 451 (Utah 2016); accord
McBride v. McBride, 581 P.2d 996, 997 (Utah 1978); North Union
Canal Co. v. Newell, 550 P.2d 178, 179 (Utah 1976); Big Cottonwood
Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946); see also
Restatement (Third) of Property: Servitudes § 4.9 (Am. L. Inst.
2000) (stating that “the holder of the servient estate is entitled to

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make any use of the servient estate that does not unreasonably
interfere with enjoyment of the servitude”). Our supreme court
recently summed up the current state of the law:

Under Utah’s property law, an easement holder has
the right to use its easement (the scope of which
defines the extent of the permitted use) in a way that
does not unreasonably interfere with the property
rights of the owner of the land. And the owner of
the land has the right to continue using its land so
long as it does not unreasonably interfere with the
easement holder’s use of its easement.

Metropolitan Water Dist. of Salt Lake & Sandy v. SHCH Alaska Trust,
2019 UT 62, ¶ 49, 452 P.3d 1158.

¶32 This rule of mutual reasonableness has been applied,
under Utah law, to prescriptive easements, see, e.g., McBride, 581
P.2d at 996–97, as well as to easements of specific dimension that
are conveyed by grant, see, e.g., Metropolitan Water Dist. of Salt Lake
& Sandy v. Sorf, 2019 UT 23, ¶¶ 12–13, 445 P.3d 443. The rule is
motivated by “public policy favoring socially productive use of
land,” and is aimed at “striking a balance that maximizes the
aggregate utility of the servitude and the servient estate.” See
Restatement (Third) of Property: Servitudes § 4.9 cmt. b; see also
28A C.J.S. Easements § 191 (2023) (“The ownership of property
that is subject to an easement creates a dichotomy of real property
interests, each of which must be respected, and these interests
must be kept in balance, to the extent possible.”). Indeed, our
supreme court has observed that “the object to be desired is to
find some accommodation of [the] conflicting interests, to the
maximum advantage and to the minimum disadvantage, of both
parties.” North Union Canal Co., 550 P.2d at 180.

¶33 As a general matter, “[w]hether one party’s conduct
interferes with the right of the other is a factual question, the
answer to which depends on the particular circumstances of the

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parties and the nature of the easement.” SHCH Alaska Trust, 2019
UT 62, ¶ 49; see also Big Cottonwood Tanner Ditch Co., 174 P.2d at
159 (stating that, in easement cases, reasonable use “is a question
of fact to be decided after considering” the circumstances of the
case). And factual questions are typically not decided as a matter
of law, unless the evidence in the case at hand is so one-sided that
a reasonable factfinder could reach only one conclusion. See Ocean
18 LLC v. Overage Refund Specialists LLC (In re Excess Proceeds from
Foreclosure of 1107 Snowberry St.), 2020 UT App 54, ¶ 29, 474 P.3d
481 (stating that “even questions of fact may be decided as a
matter of law” when the evidence “is so one-sided that a
reasonable factfinder could reach but one conclusion”).

¶34 The District acknowledges that “Utah has adopted an
unreasonableness framework for assessing whether use of a
servient estate unlawfully interferes with the rights of an
easement holder,” and it insists that it is not asking us “to
eliminate that framework.” Nevertheless, it contends that Utah
law should include a bright-line “exception” to the mutual
reasonableness rule that would potentially apply in a “narrow
class of cases”: those involving a negotiated and agreed-upon
grant in which the metes and bounds of the easement are clear
and are part of the bargain. The District maintains that, in cases
involving this sort of easement, the better rule is to classify as per
se unreasonable the construction of any “permanent” structure
within the boundaries of the negotiated easement. In keeping
with its view of the law, it asked the trial court to adopt this
bright-line rule and instruct the jury that any “permanent
structure located within an easement of definite location and
dimensions is unreasonable” as a matter of law. The court refused
to give the instruction, because it viewed the instruction as being
at odds with current Utah law.

¶35 The bright-line rule advocated by the District has been
adopted—at least in the context of ingress/egress easements—in a
number of other jurisdictions. See, e.g., Johnson v. Highway 101

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Invs., LLC, 319 P.3d 485, 487–88 (Idaho 2014) (compiling cases); see
also 25 Am. Jur. 2d Easements and Licenses § 76 (2023) (“A
permanent physical obstruction placed in an express easement
created by grant, in the absence of an agreement or surrounding
circumstances to the contrary, interferes as a matter of law with
the dominant easement holder’s right to the use of all of the
express easement.”). 5 As justification for adopting this bright-line

5. The District characterizes the bright-line rule adopted in Johnson
v. Highway 101 Investments, LLC, 319 P.3d 485 (Idaho 2014), as
having been adopted by “a majority of other states.” The District’s
characterization comes from Johnson itself, in which the Idaho
Supreme Court stated that “[a] majority of our sister states
recognize a caveat to the general rule of reasonableness” in cases
involving permanent structures being built inside the boundaries
of a negotiated easement. Id. at 487. Sorf resists this
characterization, arguing that several of the cases that the Johnson
court cites as support for the proposition do not actually adopt the
rule. Based on our own canvass of the case law, we are not
convinced that labeling the District’s concept as a “majority” rule
is necessarily accurate; the number of jurisdictions that have
adopted the rule appears to us to be roughly equal to the number
of jurisdictions that have rejected it or declined to apply it.
Compare Squaw Peak Cmty. Covenant Church of Phoenix v. Anozira
Dev., Inc., 719 P.2d 295, 299 (Ariz. Ct. App. 1986); Sand Lake Shoppes
Family Ltd. P’ship v. Sand Lake Courtyards, LC, 816 So. 2d 143, 145–
46 (Fla. Dist. Ct. App. 2002); Consolidated Amusement Co., Ltd. v.
Waikiki Bus. Plaza, Inc., 719 P.2d 1119, 1123 (Haw. Ct. App. 1986);
Johnson, 319 P.3d at 487; Aladdin Petroleum Corp. v. Gold Crown
Props., Inc., 561 P.2d 818, 822 (Kan. 1977); Miller v. Kirkpatrick, 833
A.2d 536, 547 (Md. 2003); Xanadu Horizontal Prop. Regime v. Ocean
Walk Horizontal Prop. Regime, 410 S.E.2d 580, 581 (S.C. Ct. App.
1991); Lamb v. Wyoming Game & Fish Comm’n, 985 P.2d 433, 437–38
(Wyo. 1999), with Skow v. Goforth, 618 N.W.2d 275, 278–81 (Iowa
2000); Mill Pond Condo. Ass’n v. Manalio, 910 A.2d 392, 395 (Me.
(continued…)

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approach, courts have posited that it “will avoid costly and time-
consuming litigation concerning whether the servient estate
owner’s use of the easement area is reasonable,” see Johnson, 319
P.3d at 488, and have reasoned that a contrary rule would give
dominant estate owners “license to retake the easements in a
piecemeal fashion,” see Lamb v. Wyoming Game & Fish Comm’n, 985
P.2d 433, 438 (Wyo. 1999).

¶36 Other courts, however, have expressly declined to adopt
this bright-line exception to the rule of mutual reasonableness.
See, e.g., Skow v. Goforth, 618 N.W.2d 275, 278–81 (Iowa 2000).
These courts have emphasized the “aggregate utility” that the rule
of mutual reasonableness promotes, see id. at 280 (quotation
simplified), and they have noted the absurdity of a rule that
would require a servient estate owner to remove a structure that
encroaches on the easement in only a de minimis manner, see id.
at 281, or that is located in a part of the easement that is entirely
“unused” by the dominant estate holder, see D’Abbracci v. Shaw-
Bastian, 117 P.3d 1032, 1041 (Or. Ct. App. 2005).

¶37 The two sides of this debate were presented by the majority
and dissenting opinions in Johnson. See 319 P.3d at 485. In that
case, the dominant estate holder had an express easement over
certain property for the purpose of ingress and egress. Id. at 486.
The servient estate holder erected a billboard within the easement

2006); Gaw v. Seldon, 85 So. 3d 312, 317 (Miss. Ct. App. 2012); Baum
v. Glen Park Props., 660 S.W.2d 723, 726 (Mo. Ct. App. 1983);
D’Abbracci v. Shaw-Bastian, 117 P.3d 1032, 1041 (Or. Ct. App. 2005);
DeHaven v. Hall, 753 N.W.2d 429, 439–40 (S.D. 2008). But in any
event, our supreme court has noted that “the persuasiveness of
authority is not determined by the pound, but by the quality of
the analysis,” Pleasant Grove City v. Terry, 2020 UT 69, ¶ 29, 478
P.3d 1026 (quotation simplified), and, in these circumstances, we
consider it more or less irrelevant whether the rule for which the
District advocates is or is not a “majority” rule.

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boundaries; construction of the billboard involved digging holes
for a “sign-post and two bollards,” and when completed, the
billboard itself was located “fourteen feet above the ground.” Id.
Testimony provided to the trial court indicated that “the sign did
not prevent” the dominant estate holders, “or their customers,
from accessing” the property. Id. Yet the Idaho Supreme Court
adopted the bright-line rule and held that the billboard was “per
se unreasonable,” even though there was little evidence that it
hindered the dominant estate holder’s use of the easement. Id. at
489. The court offered its view that the bright-line rule “best
recognizes the sanctity of a dominant owner’s bargained-for
property rights,” and would—in the long run—“avoid costly and
time-consuming litigation” about reasonableness. Id. at 488. The
court recognized the “overall societal utility” of the flexible rule
of mutual reasonableness, but it concluded that “the protracted
and open-ended litigation invited by a rule of reasonableness
offsets the slight societal utility benefits produced under a
reasonableness standard.” Id.

¶38 The dissenting opinion noted the senselessness of ordering
the servient estate owner to tear down the billboard when it
wasn’t interfering at all with the dominant estate holder’s use of
the easement. Id. at 491 (Jones, J., dissenting) (stating that “[i]t is
eminently unjust for a court to compel a servient owner to tear
down a structure, perhaps at great expense, for no other reason
than the dominant owner’s caprice”). And it expressed doubt that
the bright-line rule adopted by the majority would really reduce
litigation, predicting that the focus of litigation would merely shift
from whether an owner’s use was “reasonable” to whether a
particular structure was “permanent,” an inquiry that itself may
require importation of reasonableness principles. Id. at 490–91
(“After all, all permanent structures are removable; it is only a
question of how difficult it is.”).

¶39 The parties to this case present us with essentially the same
question—supported by many of the same competing

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arguments—that was presented to the court in Johnson. The
District asks us to adopt, and import into Utah law, the bright-line
exception to the rule of mutual reasonableness that the court
adopted in Johnson. It asserts that the “clear standard” will “avoid
costly and time-consuming litigation” over reasonableness,
pointing to this case—which has been pending since 2010—as an
example of how litigation over reasonableness can become
protracted. Relatedly, it asserts that the concept of
“reasonableness” can change over time as parties alter their usage
of easement property, and it extols the virtues of a bright-line
approach that would simply ban all permanent structures. The
District also posits that the bright-line approach “best recognizes
the sanctity of a dominant owner’s bargained-for property
rights,” because it does not allow a servient owner to gradually
chip away at the boundaries of a negotiated easement. Finally, it
asserts that the bright-line approach makes even more sense in
this case than in other cases, because this case involves “large-
scale public infrastructure” that provides water to the Salt Lake
Valley, and the rule would allow the District to continue to
provide that important public service without becoming
embroiled in “time-consuming, expensive litigation to assess the
reasonableness of each improvement, property by property, along
the entire length of the” SLA Corridor.

¶40 Sorf takes a different view, and asks us to decline the
District’s invitation to modify the rule of mutual reasonableness.
He first notes that our supreme court has long adhered to that
rule, without exception, and has never even hinted at adoption of
this kind of bright-line addendum. He also points out that the
cases that have adopted the bright-line exception have done so in
the context of ingress/egress easements, and he asserts that
adoption of the bright-line exception outside that context would
be novel and would create additional complications. He
emphasizes the social utility of the rule of mutual reasonableness,
which allows both interest holders to maximize the use of the
property in question, and he argues that these principles apply

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squarely here, where the jury found that Sorf’s Improvements do
not unreasonably interfere with the District’s use of the Easement.
And he asserts that adoption of the bright-line approach the
District advocates would do nothing to reduce overall litigation
or to promote certainty, because “the subject of lawsuits would
just turn to what is permanent.” On that point, Sorf notes that all
of his Improvements are removable, most fairly easily, and that
he has offered to quickly remove them if removal were ever
needed to accommodate the District’s use of the Easement.
Finally, he asserts that adoption of the bright-line rule would
violate his property rights, given that he purchased his property
at a time when no such rule existed in Utah.

¶41 On balance, Sorf has the better of the argument, at least on
the facts of this case, for several reasons. First, we agree with Sorf’s
assessment of the current state of Utah law: our supreme court has
long followed the rule of mutual reasonableness, and its cases do
not contain any language potentially supportive of a bright-line
exception as advocated by the District. See SHCH Alaska Trust,
2019 UT 62, ¶¶ 49–50 (expressing the rule of mutual
reasonableness, without exception, and referring to the inquiry as
“a fact-heavy question”); North Union Canal Co., 550 P.2d at 179
(“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.” (emphasis added)); Big Cottonwood Tanner
Ditch Co., 174 P.2d at 158–59 (stating that “[e]ach owner must
exercise his rights so as not unreasonably to interfere with the
other,” and that the question of whether a particular use is
reasonable “is a question of fact to be decided after considering”
all the “facts and circumstances bearing on the question”). We
take the District’s point that these cases do not necessarily
“foreclose adoption of a bright-line rule for a particular set of
circumstances within the general framework,” but we note the
relatively strong language used in these cases and find it at least
somewhat instructive that our supreme court has always
unambiguously followed the rule of mutual reasonableness.

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¶42 Second, as far as we are aware, all the courts to have
adopted the bright-line rule have done so in the context of
ingress/egress easements. See, e.g., Johnson, 319 P.3d at 487–89.
Indeed, the District has not brought to our attention any cases
adopting the bright-line approach outside of that context. This
case, of course, does not involve an easement for ingress and
egress; it involves an easement for an underground water
pipeline. Thus, the District is urging us to adopt the bright-line
rule in a context in which it has never before been applied.

¶43 We are hesitant to do so. In our view, the reasons justifying
adoption of the bright-line rule are more applicable—and more
apparent—in the ingress/egress context than they are here. A
permanent structure built within the boundaries of an easement
is likely to have a negative impact on a dominant owner’s ability
to use the easement for ingress and egress; after all, it is not
possible to drive a car through a building. Only in cases involving
de minimis encroachment, or encroachment on a completely
unused part of the easement, can it be argued that a permanent
structure built within the easement has no impact on ingress and
egress. Thus, in a context in which many, if not most, permanent
structures built within an easement are going to be problematic, it
may make sense to adopt a bright-line rule declaring all such
structures unreasonable per se. Such a rule would negatively
affect servient owners in the de minimis cases, but—assuming
that those cases are the rarer ones—there may be some measure
of collective societal efficiency to be gained by adopting the
bright-line rule in that context.

¶44 But in the context of an underground pipeline easement,
we do not see that there are measurable collective efficiencies to
be gained by adoption of the bright-line rule. The District does not
use Sorf’s property for ingress and egress. Nearly all the use to
which the District puts that property occurs some eight feet
underground, without any perceptible effect on the surface. In
this context, it is far from self-evident that permanent structures

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built on the surface of the Easement will be likely to negatively
affect the District’s use of the Easement. In fact, given that the
District has only had to excavate a servient owner’s property for
emergency repairs of the Pipeline just a handful of times, it
appears unlikely that any single surface-level obstruction will
ever have any actual negative impact on the District’s ability to
maintain the Pipeline. Adopting the District’s bright-line rule in
this context would seem to turn the societal efficiency dynamics—
the ones used by our supreme court to justify the rule of mutual
reasonableness—on their head. It is not apparent to us how, in an
underground pipeline context, the benefits of a bright-line rule
would clearly outweigh the loss of social utilization that comes
with preventing otherwise reasonable uses of land.

¶45 Moreover, since this bright-line rule has apparently never
before been applied in an underground pipeline context, we
would have to create specific contours of the rule to fit this
situation. And we are unaware of any template for doing so. The
difficulty associated with such an exercise is illustrated by the
Johnson case. There, after adopting—in the ingress/egress
context—the bright-line exception to the rule of mutual
reasonableness, the court then noted as follows: “Permanent
structures that do not interfere with the right to use the entire
dimension of the easement, such as an underground pipeline, may
be lawfully located within the boundaries of the easement because
they do not encroach on the [dominant] owner’s easement rights.”
Johnson, 319 P.3d at 488 (emphasis added). Thus, at least as Idaho
articulates it, the bright-line exception to the rule of mutual
reasonableness itself has an exception: for permanent structures
located underground, on the basis that this category of permanent
structures generally does not interfere with the dominant owner’s
primary use of the easement, namely, for ingress and egress. Id.

¶46 We are not at all certain—and the District offers no
assistance in this regard—how such an exception to the exception
would operate in this context, where the primary purpose for the

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District’s easement rights is for the District to operate an
underground water pipeline. And we note, in this vein, that we
have previously applied the rule of mutual reasonableness—
without any exceptions—in a case involving a dispute the District
was having with the local natural gas company in a spot where
the Pipeline passed near to an underground gas pipeline. See
Metropolitan Water Dist. of Salt Lake & Sandy v. Questar Gas Co.,
2015 UT App 265, ¶¶ 30–31, 361 P.3d 709 (applying the rule of
mutual reasonableness, affirming a lower court’s determination
that the gas pipeline “does not constitute an unreasonable
interference” with the Pipeline as a matter of law, and reasoning
that both the District and the gas company “have always been able
to, and continue to, effectively operate their respective pipelines
within the SLA Corridor despite each other’s presence”
(quotation simplified)), cert. denied, 369 P.3d 451 (Utah 2016). We
have a definite level of discomfort with being the first to create,
and then apply, a version of the bright-line exception that would
make sense in this context.

¶47 Finally, we—like Sorf—are not convinced that adoption of
the bright-line rule in this context would cause any measurable
reduction of the amount of litigation regarding the Pipeline. We
certainly take the District’s point that the Pipeline is a crucial piece
of infrastructure for residents of the Salt Lake Valley, and that its
continued operation is important to the quality of life that those
residents enjoy. And we likewise empathize with the District’s
desire to avoid yard-specific litigation regarding the
reasonableness of things like trees, sheds, hot tubs, basketball
hoops, and mailboxes. But we remain far from persuaded that
adoption of the District’s desired bright-line rule would better
facilitate those objectives than the existing legal regime does. Sorf
points out—and the District acknowledges—that litigation along
the Pipeline would not stop if the rule were adopted; instead,
there would be an entirely new topic to litigate, namely, whether
a structure is “permanent.” The District posits that litigation
around this topic would be “simple” compared to fights about

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reasonableness, but we do not see why this would be so. As the
dissenting opinion in Johnson pointed out, even “permanent
structures are removable; it is only a question of how difficult it
is.” See 319 P.3d at 490–91 (Jones, J., dissenting). Litigation over
“permanence” has the potential to be just as protracted, and just
as fact-specific, as litigation over reasonableness.

¶48 For all of these reasons, then, we decline the District’s
invitation to adopt—in this case—a bright-line exception to the
rule of mutual reasonableness that would apply to permanent
structures built within the boundaries of a definite negotiated
easement. To be clear, however, our decision to decline this
invitation is specific to this case; we offer no opinion on whether
adoption of a bright-line rule would be appropriate in cases
involving an ingress/egress easement (the context in which the
rule has been applied everywhere else). Our decision is simply
that the bright-line rule has no applicability in this case, where the
Easement at issue has to do with an underground pipeline.

¶49 It follows from this conclusion that the trial court did not
err in refusing the District’s request to provide the jury with an
instruction articulating the bright-line rule. We therefore reject the
District’s assertion that this constituted error.

B

¶50 The District’s other jury-instruction-related argument is its
claim that the trial court’s instructions regarding the parties’
mutual obligation not to unreasonably interfere with the other’s
use of the land within the Easement were incomplete, inaccurate,
and misleading. As best we can tell, the District makes three
arguments in this regard, none of which we consider persuasive.

¶51 First, the District argues that the instructions the court gave
omitted what it considers “an important legal principle,” namely,
“that the servient estate holder’s use cannot make it more difficult
or expensive for the dominant estate holder to enjoy its property

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right.” The District claims that, during trial, it focused its
presentation on “the increased complexity and cost of using its
[E]asement due to the [I]mprovements, while [Sorf’s] strategy was
to suggest that its use could be accomplished through a less
expensive or complex means.” It asserts that the court’s “final
instructions provided no guidance on the legal standards for such
issues” and as a result “failed to provide jurors with a complete,
accurate picture of the law governing unreasonabl[e]
interference.” We disagree.

¶52 In our view, the court’s instructions—set out above, in
paragraph 11—provided the jury with an accurate recitation of
Utah law governing easements, including the rule of mutual
reasonableness. See Metropolitan Water Dist. of Salt Lake & Sandy v.
SHCH Alaska Trust, 2019 UT 62, ¶ 49, 452 P.3d 1158 (“An easement
holder has the right to use its easement . . . in a way that does not
unreasonably interfere with the property rights of the owner of
the land[] and the owner of the land has the right to continue
using its land so long as it does not unreasonably interfere with
the easement holder’s use of its easement.” (quotation
simplified)); see also Restatement (Third) of Property: Servitudes
§ 4.9 cmt. c (Am. L. Inst. 2000) (“In determining whether the
holder of the servient estate has unreasonably interfered with
exercise of an easement, the interests of the parties must be
balanced to strike a reasonable accommodation that maximizes
overall utility to the extent consistent with effectuating the
purpose of the easement . . . .”). Notably for present purposes,
those instructions included the following admonition: “The
District can use up to the full width of its [E]asement for the
repair, replacement, and reconstruction of the [Pipeline] in any
particular method it chooses so long as the District does not
unreasonably interfere with Mr. Sorf’s reasonable use of his
property.” And those instructions made clear that Sorf was not
allowed to “unreasonably interfere with the District’s reasonable
use of its [E]asement.” In addition, the court instructed the jury to
“consider the nature and character of the [I]mprovements within

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 Metropolitan Water District v. Sorf

the [E]asement,” an admonition that at least implicitly invited the
jury to consider the size and relative permanency of each
Improvement as well as the potential costs of removal.

¶53 It is true that the instructions did not include any phrase
expressly admonishing the jury that Sorf “cannot make it more
difficult or expensive” for the District “to enjoy its property right.”
But the District points to no Utah case that uses this phraseology,
let alone one that requires its inclusion in a jury instruction. The
District relies most heavily, in this regard, upon a comment to the
Restatement, which states that “[t]he more expensive the
improvement or the more difficult its removal is likely to be, the
more likely is the conclusion that the improvement is an
unreasonable interference with the easement.” See Restatement
(Third) of Property: Servitudes § 4.9 cmt. c. But nothing in the
court’s instructions was contrary to this principle, and nothing
prevented the District from arguing this principle to the jury as
part of its presentation on mutual reasonableness. While the court
could well have decided to include a sentence along the lines the
District requested, we cannot conclude that the absence of that
requested sentence rendered the court’s instructions inaccurate or
otherwise amounted to an abuse of discretion. See Jensen v.
Intermountain Power Agency, 1999 UT 10, ¶ 16, 977 P.2d 474 (“If the
jury instructions as a whole fairly instruct the jury on the
applicable law, reversible error does not arise merely because one
jury instruction, standing alone, is not as accurate as it might have
been.” (quotation simplified)).

¶54 Second, the District takes issue with the court’s omission,
from its final instructions, of language that it believes would have
“mitigate[d] the risk that jurors would” believe that “an easement
is limited to what would be ‘reasonably necessary’ for the
easement holder to access the property.” It points to Sorf’s
arguments that “raised less extensive methods of accessing the
[P]ipeline, suggested maintenance would not be necessary for
years, offered alternative methods of excavation, and challenged

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 Metropolitan Water District v. Sorf

the District’s reasonableness, all suggesting that the District could
work around [Sorf’s] [I]mprovements,” and asserts that “an
instruction clarifying that the District did not need to establish the
full width was necessary or reasonably necessary for its use was
appropriate.” We reject this argument chiefly because the court’s
final instructions did not include any reference to a “reasonable
necessity” standard, and because the instructions did include—as
noted above—an admonition that “[t]he District can use up to the
full width of its [E]asement for the repair, replacement, and
reconstruction of the [Pipeline] in any particular method it
chooses so long as the District does not unreasonably interfere
with Mr. Sorf’s reasonable use of his property.”

¶55 Finally, the District argues that the instructions were
confusing because they “included language suggesting the jury
‘decid[e] whether the District’s use of its [E]asement interferes
with [Sorf’s] use of his property’ and expressly limited the
District’s right to use the full width of its property to methods that
did ‘not unreasonably interfere with [Sorf’s] reasonable use of his
property.’” Thus, the District argues that the instructions should
not have described a rule of mutual reasonableness but, instead,
should only “have been focused on whether [Sorf] unreasonably
interfered with the District’s [E]asement—not whether the
District had interfered with [Sorf’s] use of his property rights.”
But as already noted, Utah easement law quite clearly
incorporates a rule of mutual reasonableness. See SHCH Alaska
Trust, 2019 UT 62, ¶ 49. The trial court did not err at all—let alone
commit an abuse of discretion—in describing the parties’
reasonableness obligations as mutual.

¶56 Thus, we discern neither legal error nor abuse of discretion
in the instructions the trial court gave to the jury. We therefore
reject the District’s arguments that the court improperly
instructed the jury.

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 Metropolitan Water District v. Sorf

II. The Special Verdict Form

¶57 Next, the District takes issue with one aspect of the special
verdict form that the trial court provided to the jury. That form
contained ten questions, each one asking about the
reasonableness of one of (or one grouping of) Sorf’s
Improvements. The first question asked whether Sorf’s
“uncovered deck unreasonably interfere[d] with the District’s
easement rights.” The other nine questions were identical, except
for replacement of the words “uncovered deck” with a
description of another one of (or grouping of) the Improvements.
Those were the only ten questions on the form, and the jury
answered each one, individually, in the negative.

¶58 Some of the questions asked about a group of the
Improvements, rather than one individual item. For instance, the
jury was asked whether Sorf’s “new trees,” collectively,
unreasonably interfered with the District’s easement rights. And
it was asked to consider whether the “pond and water feature,”
collectively, so interfered. But other questions asked only about
individual Improvements, or even about a part of one of the
Improvements. For instance, the jury was asked separate
questions about the “Tuff Shed barn” and about the “concrete slab
around the Tuff Shed barn,” and was asked separate questions
about the “rock retaining wall” and about the “decorative rock
wall.” But the questions about the rock walls asked about each
wall as a complete item; the jury was not asked to consider
individual segments or stones contained in the walls.

¶59 The District’s issue with the special verdict form is that it
did not include a question about the cumulative effect of the
Improvements taken together. The District submitted a proposed
special verdict form that would have asked some version of the
following question: “Do any of Mr. Sorf’s [I]mprovements,
whether individually or taken together, unreasonably interfere
with the District’s [E]asement?” Sorf objected to the inclusion of

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 Metropolitan Water District v. Sorf

any such question in the verdict form, arguing that asking about
cumulative effect would be “utterly unworkable in practice”
because, at the end of the trial, the court needed to “be able to tell
exactly what, if anything, the jury finds to be an unreasonable
interference so that, if necessary, it can fashion an appropriate
remedy.” The court declined to ask the jury about any cumulative
effect of the Improvements, reasoning that the jury needed to
“decide each particular [I]mprovement all on its own” and
“[i]ndependently” instead of “lump[ing] them all together.”

¶60 Trial courts have “considerable discretion in accepting
proposed special verdict forms.” Collins v. Wilson, 1999 UT 56,
¶ 22, 984 P.2d 960. We will reverse a trial court’s decision
regarding the formatting of a special verdict form only “if the
error is such that there is a reasonable likelihood that, in its
absence, there would have been a result more favorable to the
complaining party.” Senkosky v. Bistro 412 LLC, 2022 UT App 58,
¶ 20, 512 P.3d 477 (quotation simplified). We perceive no abuse of
discretion in the court’s decision to utilize this particular special
verdict form, nor do we discern any reasonable likelihood of a
different result if a cumulative-effect question had been included.

¶61 As an initial matter, it appears that the court—and the
parties—apparently gave at least some consideration to the issue
of cumulativeness, in that the special verdict form grouped
certain of the Improvements together and separated others. The
verdict form asked one question about the reasonableness of the
“Tuff Shed barn” and a separate question about the “concrete slab
around the Tuff Shed barn.” By contrast, the verdict form did not
ask about the reasonableness of each individual tree Sorf had
planted in his backyard; instead, it asked about all of the “new
trees” together. Similarly, the verdict form did not ask about
individual segments of the two walls Sorf had built in his
backyard, asking instead about the “rock retaining wall” as a
single unit and about the “decorative rock wall” as a single unit.
Under the facts as we understand them, asking about the

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 Metropolitan Water District v. Sorf

decorative rock wall as one unit, in cumulative fashion (instead of
about individual segments of it), made sense in this case, given
that this wall was the only one of the Improvements located
within nineteen feet of the Pipeline’s center line. While another
judge might have seen fit to divide the Improvements up in a
different way for purposes of asking about their individual and
cumulative reasonableness, or perhaps even seen fit to include an
overall-cumulative-effect question on the verdict form, we cannot
say that the trial court here—under the facts of this case—abused
its discretion in utilizing this particular special verdict form.

¶62 Moreover, we recognize the validity of Sorf’s concern that
inclusion of an overall-cumulative-effect question may have made
it more difficult—rather than less difficult—for the court to have
fashioned a remedy for any unreasonableness. If such a question
had been included and had been answered in the affirmative but
all the individual questions had been answered in the negative, it
is unclear what the remedy would have been. Special verdict
forms should, after all, be helpful, and if inclusion of a particular
question would not help the court in its effort to arrive at an
adequate and just remedy, that question need not be included.

¶63 Finally, the District has not carried its appellate burden of
demonstrating a reasonable likelihood of a different result had an
overall-cumulative-effect question been included on the verdict
form. For one thing, the evidence indicated that all the
Improvements (except for the decorative rock wall) were located
at least nineteen feet away from the Pipeline’s center line, and
many of them (including many of the largest ones) were located
much farther away from the Pipeline’s center line. See Appendix.
The jury also heard evidence indicating that the District had
developed a practice of allowing trees inside easements, as long
as they were located at least twenty feet away from the Pipeline’s
center line, so that the District had a forty-foot swath of
unencumbered land within which to conduct repairs. And the
jury heard evidence (largely from Engineer, as discussed below,

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 Metropolitan Water District v. Sorf

but also from Manager) that the District, if it ended up needing to
excavate on Sorf’s property, would likely be able to complete its
work within that forty-foot zone. In addition, as noted, the jury
was asked to consider the cumulative reasonableness of some of
the Improvements, such as “new trees” and entire rock walls,
including the decorative rock wall (the Improvement nearest the
Pipeline). And the jury was asked to consider the individual
reasonableness of each of the other Improvements. In responses
to these questions, the jury concluded that none of the
Improvements unreasonably interfered with the District’s
easement rights. Given the evidence presented, and given the
jury’s responses to the questions on the existing verdict form, we
do not think it reasonably likely that the jury would have reached
a different result had the form included an additional question
about the overall cumulative effect of the Improvements.

¶64 Accordingly, we reject the District’s appellate challenge to
the special verdict form.

III. Engineer’s Testimony

¶65 Finally, the District asserts that the trial court erred by not
placing a requested limitation on Engineer’s testimony. In
particular, the District takes issue with the court’s decision not to
bar Engineer from testifying “about possible alternative
methodologies for the rehabilitation of” the Pipeline, asserting
that Engineer’s testimony along these lines was not helpful to the
jury “because the question pending before the jury was the
reasonableness of [Sorf’s] existing use of the property” rather than
the reasonableness of the District’s likely uses of the property. As
the District puts it, this evidence “neither changed nor bore on the
fact that the District possessed a legal right to use the entire width
of its [E]asement for emergency repairs, maintenance, or
reconstruction of the [Pipeline] in the future.” In addition, the
District argues that Engineer’s testimony “improperly suggested
that the District’s [E]asement should be limited in geographic

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 Metropolitan Water District v. Sorf

scope,” and it asserts that this testimony had the “net effect” of
suggesting that “the District’s use of its [E]asement should be
limited to what was reasonably necessary,” in violation of our
case law. See Carrier v. Lindquist, 2001 UT 105, ¶ 20, 37 P.3d 1112
(declining to apply “the reasonable necessity test to disputes over
private easements” because it “would give a servient estate the
power to obstruct an easement, and then extinguish or limit that
easement, by claiming that the easement was not reasonably
necessary for the easement holder to access his or her property”).

¶66 To the extent that the District’s arguments are reliant on the
notion that the reasonableness inquiry runs in only one direction,
we reject those arguments for the reasons already stated. See supra
¶ 55. Utah quite clearly follows a rule of mutual reasonableness.
Moreover, in any holistic assessment of the reasonableness of
Sorf’s Improvements, it is highly relevant what sorts of uses the
District—given current technologies and economic conditions—is
likely to make of the property inside the Easement. And as
already noted, the court instructed the jury that the District was
allowed to use the entire width of its Easement “so long as the
District does not unreasonably interfere with Mr. Sorf’s
reasonable use of his property.” Moreover, there is nothing in the
record to indicate that the jury substituted a “reasonable
necessity” inquiry for the “mutual reasonableness” inquiry. No
jury instruction contained the phrase “reasonably necessary.”
And the District points us to no place in the attorneys’ respective
arguments where anyone urged the jury to apply a “reasonable
necessity” standard.

¶67 Accordingly, we discern no error in the trial court’s refusal
to limit Engineer’s testimony as requested.

CONCLUSION

¶68 We decline the District’s invitation, in this case, to apply a
bright-line exception—one that would be applicable only to

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permanent structures built inside negotiated easements of
definite dimension—to the rule of mutual reasonableness that has
long been applied to easement disputes in Utah. And we discern
no other infirmities in the trial court’s instructions or special
verdict form. Finally, we discern no error in the court’s denial of
the District’s request to limit Engineer’s trial testimony.

¶69 Affirmed.

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 Metropolitan Water District v. Sorf

APPENDIX

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