Bradbury v. Valencia

Bradbury v. Valencia

IN THE UTAH COURT OF APPEALS

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Randy Bradbury and Dawn Bradbury,

Plaintiffs and Appellees,

v.

Phil Valencia and Opal Valencia,

Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030518-CA
 

F I L E D
(September 2, 2004)
 

2004 UT App 289

 

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First District, Brigham City Department

The Honorable Gordon J. Low

Attorneys: Kevin McGaha, Brigham City, for Appellants

Jeff R. Thorne and Jack H. Molgard, Brigham City, for Appellees

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Before Judges Jackson, Orme, and Thorne.

ORME, Judge:

    "A grant of summary judgment is appropriate only when 'there is no genuine issue as to any material fact . . . and the moving party is entitled to a judgment as a matter of law.'" Utah Safe to Learn-Safe to Worship Coalition, Inc. v. State, 2004 UT 32,¶10, 94 P.3d 217 (quoting Utah R. Civ. P. 56(c)). "'[W]e review the trial court's ruling for correctness and accord it no particular deference.'" Id. (citations omitted).

    "A reservation reserves to the grantor some new thing issuing out of the thing granted and not in esse before, and an exception excludes from the operation of the grant some existing portion of the estate granted which would otherwise pass under the general description of the deed." Hartman v. Potter, 596 P.2d 653, 656 (Utah 1979) (emphasis in original). Although

[a] technical distinction exists between a "reservation" and an "exception[,]" . . . the terms are often used interchangeably, [and] the distinction has been disregarded to a great extent where the intention of the parties can be arrived at and a reservation may be construed as an exception when necessary to carry out the obvious intent of the parties.

Id. at 656-57. Given the undisputed facts in the record, we agree with the trial court that, although the term reservation was used in the deeds, the phrase actually recognizes and acknowledges a right-of-way already in existence and would more accurately have been phrased as an "exception."

    Moreover, pursuant to the language in the 1938 and 1943 warranty deeds reserving the right-of-way, the Valencias took ownership of their property "subject to the pre-existing" right-of-way. The Valencias "are therefore chargeable with the knowledge [of the existence of the right-of-way] . . . by virtue of the recording of the conveyance" in which the original reservation was made. Id. at 657 (footnote omitted). Due to its pre-existing status and the intentions of the original property owners, the Bradburys' use of the right-of-way will not be terminated solely because subsequent deeds failed to include "reservation" or "exception" language. Because exceptions operate by excluding from the conveyance some existing portion of the estate, not only have the Valencias never owned the rights to the right-of-way, they also have never had the right to prevent the Bradburys' use of the right-of-way.

    Next, the Valencias argue that "'[a] partition of the dominant tenement cannot create a further or additional easement across a servient tenement, and an easement of way does not inure to the benefit of the owner of a parcel which after the division does not abut on the way; and where the resulting use will increase the burden upon the servient estate.'" Wood v. Ashbury, 122 Utah 580, 253 P.2d 351, 354 (1952) (citation omitted). In such cases, the Valencias argue, "'the right to the easement will be extinguished.'" Id. (citation omitted). In this case, although the dominant estate (now the Bradburys' parcel) has been divided and no longer abuts the servient estate (now the Valencias' parcel), no evidence has been presented to suggest
that this property division has increased the burden of use of the right-of-way by the dominant estate.(1)

    Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Norman H. Jackson, Judge

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William A. Thorne Jr., Judge

1. Because other neighboring property owners are not parties to this action, our affirmance should not be construed as affecting their rights, but only the rights of the parties to this action. However, we recognize the general validity of the trial court's observation that any "increased burden would come, if at all, from the other two abutting owners. . . . [who] are not parties here," rather than from the Bradburys.