Jones v. Loosle

----ooOoo----

Richard K. Jones,
Plaintiff and Appellee,

v.

Kelly C. Loosle,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990843-CA

F I L E D
January 11, 2001 2001 UT App 15 -----

First District, Logan Department
The Honorable Clint S. Judkins

Attorneys:
Joseph M. Chambers, Logan, for Appellant
Milo S. Marsden and Jeffery S. Williams, Salt Lake City, for Appellee

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Before Judges Billings, Orme, and Thorne.

THORNE, Judge:

Defendant Kelly Loosle appeals the trial court's final judgment granting plaintiff's requested boundary and granting plaintiff's request for a prescriptive easement. We affirm.

Defendant first argues the evidence was insufficient to support the trial court's boundary determination. Utah Rule of Civil Procedure 52(a) "'forbids us from setting aside factual findings unless clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses.'" Orton v. Carter, 970 P.2d 1254, 1257 (Utah 1998) (quoting Judd Family Ltd. P'ship v. Hutchings, 797 P.2d 1088, 1090 (Utah 1990)).

Here, defendant first challenges the trial court's acceptance of a long recognized crop line to establish the requisite visible line, and the trial court's use of an extinct headgate as one required monument.(1) Utah law, however, requires only "a recognizable physical boundary of any character, which has been acquiesced in as a boundary for a long period of time." Olsen v. Park Daughters Inv. Co., 29 Utah 2d 421, 511 P.2d 145, 147 (1973). Here, the trial court considered the testimony of several witnesses who testified that the previous property owners recognized both the crop line and the headgate as boundary markers. In assessing credibility the trial court is entitled to accept or reject the testimony presented. See Orton, 970 P.2d at 1256. Thus, the trial court's recognition of the long used crop line to establish the visible line, as well as its reliance upon evidence concerning the location of the now extinct headgate, are not clearly erroneous.

Defendant next argues the court's finding of a prescriptive easement places an undue burden on his land, but defendant failed to raise this issue below. In light of this failure, "[w]e decline to address th[is] . . . claim[] because of our general rule that 'issues not raised at trial cannot be argued for the first time on appeal.'" Monson v. Carver, 928 P.2d 1017, 1022 (Utah 1996) (quoting State v. Lopez, 886 P.2d 1105, 1113 (Utah 1994)). We therefore do not address defendant's claim that the easement places an undue burden upon his land.

The judgment of the trial court is affirmed.
 
 
 
 

______________________________
William A. Thorne, Jr., Judge -----

WE CONCUR:
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. The trial court heard extensive evidence concerning the monument's traditionally used by the property owners to signify the property boundary. One of the monuments was a water channel headgate, which was destroyed prior to this action.