Boyington v. Glenn

----ooOoo----

Steven B. Boyington,
Plaintiff and Appellant,

v.

Larry R. Glenn, Kimi Kajiyama, et al.,
Defendants and Appellees.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000312-CA

F I L E D
June 6, 2002 2002 UT App 194 -----

Third District, Salt Lake Department
The Honorable David S. Young

Attorneys:
Donald R. Wilson, Salt Lake City, and James W. Palmer, West Jordan, for Appellant
Steven C. Russell, Salt Lake City, for Appellees -----

Before Judges Billings, Davis, and Greenwood.

BILLINGS, Associate Presiding Judge:

Boyington appeals the trial court's decision that easements for a driveway and a water line exist across his property. "'The finding that an easement exists is a conclusion of law.'" Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998) (quoting Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998)). However, such a finding is afforded broad discretion due to the fact-dependent nature of the issue. See id.

Boyington argues the trial court erred in finding that Glenn and Kajiyama had prescriptive easements and easements by necessity across his property. Specifically, he argues that he did not have record notice of the driveway easement and that he fulfilled any inquiry notice obligation. Furthermore, he claims that Glenn did not cross his property regularly for the requisite twenty years and that the Kajiyama family crossed the easement only on foot. However, because Boyington fails to properly challenge the trial court's factual findings that the use of the driveway was open, notorious, and continuous for twenty years, we assume that they are correct and proceed to a review of the trial court's legal conclusions. See Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997) ("When a party fails to challenge a factual finding and marshal the evidence in support of that finding, we 'assume[] that the record supports the finding[] of the trial court and proceed[] to a review of the accuracy of the lower court's conclusions of law and the application of that law in the case.'") (quoting Saunders v. Sharp, 806 P.2d 198, 199 (Utah 1991) (per curiam) (first and third alterations in original)). The lack of a proper challenge to the factual predicates in this case is fatal to the appeal because the trial court found all of the elements necessary for a prescriptive easement in its findings of fact. Cf. Wardley Better Homes & Garden v. Cannon, 2001 UT App 48,¶7, 21 P.3d 235.

"A prescriptive easement is created when the party claiming the prescriptive easement can prove that 'use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years.'" Orton, 970 P.2d at 1258 (quoting Valcarce, 961 P.2d at 311). The trial court specifically found that "[a]erial photos taken prior to 1979 clearly show that the disputed easement has been in use for over 20 years, and that the use has been open, notorious, and continuous." Therefore, the trial court did not abuse its broad discretion in concluding a prescriptive easement existed in favor of Glenn and Kajiyama over Boyington's property.(1)

Boyington also appeals the trial court's conclusion regarding an easement for a new water line across the disputed driveway. Boyington argues the trial court erred in finding that a prescriptive easement for the water line exists because prescriptive easements require the line to be open and notorious and the present utility line is buried. See Utah Code Ann. § 57-13a-102 (2000). However, this argument fails because the trial court concluded that this was an easement by necessity and did not hold that it was a prescriptive easement.

The trial court found that "the new water line is necessary for the reasonable use and enjoyment of Defendants' respective properties, as well as to protect Plaintiff's property from water damage." The court concluded that the utility easement "is necessary, as the current line runs directly under Plaintiff's house, and should it rupture, Plaintiff's property would likely be damaged, and it is necessary for the use and enjoyment of Defendants' respective properties." Because Boyington fails to challenge the court's factual findings, we conclude that they support its legal conclusion that an easement by necessity exists for a new water line. See Potter v. Chadaz, 1999 UT App 95,¶18, 977 P.2d 533.

Accordingly, we affirm the judgment of the trial court.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
Pamela T. Greenwood, Judge

1. In addition, Boyington does not challenge the trial court's underlying findings of fact or its conclusion of law that this driveway is also an easement by necessity. Even if we reached the merits, the court's conclusion that an easement by necessity exists is amply supported by its factual findings. "An easement by necessity arises 'when there is a conveyance of part of a tract of land which is so situated that either the part conveyed or the part retained is surrounded with no access to a road to the outer world.'" Potter v. Chadaz, 1999 UT App 95,¶18, 977 P.2d 533 (quoting Tschaggeny v. Union Pac. Land Res. Corp., 555 P.2d 277, 280 (Utah 1976)). The trial court found that "[t]here was clearly a unity of title, and then the property was severed into 3 different parcels." Furthermore, the West Capitol easement, "which Plaintiff desires that Defendants be forced to use, is impassible, and has never been used to gain access to the property." Finally, the trial court found that "[a]ccess to Defendant Glenn's property is a necessity from [Boyington's property], because of the steepness of the lower road and lack of an easement across Defendant Kajiyama's property."