Wilhelm v. Pine Meadows

----ooOoo----

James R. Wilhelm and
Linda Rose Wilhelm,
Plaintiffs and Appellees,

v.

Pine Meadows Estates, Inc.;
Milton R. Farney; Marvin R. Shapiro;
and Robert C. Dolley,
Defendants and Appellants.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000559-CA

F I L E D
October 4, 2001 2001 UT App 285 -----

Sixth District, Kanab Department
The Honorable K.L. McIff

Attorneys:
Justin Wayment and Blaine T. Hofeling, Cedar City, for Appellants
L. Edward Robbins, Kanab, for Appellees

-----

Before Judges Greenwood, Davis, and Thorne.

GREENWOOD, Presiding Judge:

Pine Meadows Estates, Inc. (Pine Meadows) appeals the trial court's conclusion that a public road does not exist on James R. and Linda Rose Wilhelm's (collectively, the Wilhelms) property. We affirm.(1)

Pine Meadows argues that the trial court's findings regarding the history, duration, and use of the road are clearly erroneous. Pine Meadows' argument is based, in large part, on its witnesses' trial testimony, while failing to adequately marshal or acknowledge evidence supporting the trial court's findings. The trial court's findings "implicitly reflect consideration of the believability of the witnesses' testimony." In re adoption of P.K.M., 628 P.2d 1286, 1289 (Utah 1981). "Where the evidence is in conflict, we defer to the trial court's first-hand assessment of the witnesses' credibility and assume that the trial court believed those aspects of the evidence which support its findings." Hal Taylor Assocs. v. Unionamerica, Inc., 657 P.2d 743, 749 (Utah 1982). The trial court found that the road had not been used by the public for an uninterrupted ten-year period since the Wilhelms purchased Lots 38 and 39. "Such a finding of fact will not be disturbed by this [c]ourt where there is supporting evidence in the record." Id. at 749. The record in this case contains evidence supporting the trial court's findings concerning public use of the road. Accordingly, "We . . . defer to those findings and affirm the trial court's rulings respecting the status of the . . . road[]." W. Kane County Special Serv. Dist. No. 1 v. Jackson Cattle Co., 744 P.2d 1376, 1377 (Utah 1987).

Pine Meadows also argues the trial court erred as a matter of law in concluding that a public thoroughfare does not exist. In Utah, the public thoroughfare doctrine is governed by Utah Code Ann. § 72-5-104 (Supp. 2001). Section 72-5-104(1) provides: "A highway is dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for a period of ten years." Id.; see also Campbell v. Box Elder County, 962 P.2d 806, 808 (Utah Ct. App. 1998).

The trial court, relying on its findings of fact, concluded the evidence did not support the existence of a public thoroughfare. The findings indicate the road was used on a limited basis during the 1970s and 1980s and was primarily used by neighboring property owners as opposed to members of the general public. "Under Utah law, use need not be regular to be continuous . . . . However, under the continuous use requirement, members of the public must have been able to use the road whenever they found it necessary or convenient." Id. at 809 (emphasis added).

The trial court found that the road had been primarily used by adjoining property owners rather than the general public. "'[Adjoining] property owners cannot be considered members of the public generally' . . . . This is because adjoining owners may have documentary or prescriptive rights to use the road or their use may be by permission of the owners of the fee of the road." Draper City v. Estate of Bernardo, 888 P.2d 1097, 1099 (Utah 1995) (internal citation omitted). Stated somewhat differently, "A 'thoroughfare' is a place or way through which there is passing or travel. It becomes a 'public thoroughfare' when the public have [sic] a general right of passage. Under this statute the highway, even though it be over privately owned ground, will be deemed dedicated or abandoned to the public use when the public has continuously used it as a thoroughfare for a period of ten years, but such use must be by the public. Use under private right is not sufficient. If the thoroughfare is laid out or used as a private way, its use, however long, as a private way, does not make it a public way." Gillmor v. Carter, 15 Utah 2d 280, 391 P.2d 426, 428 (1964) (citations omitted).

Pine Meadows contends the trial court erred in concluding that the ten-year period had not been met, but "offers no proof that the road . . . was used by the public continuously for at least 10 years." Smith Inv. Co. v. Sandy City, 958 P.2d 245, 250 n.4 (Utah Ct. App. 1998) (emphasis added). Further, the record reflects several instances where the Wilhelms blocked access to the road, and these instances "at least place[] in question the continuous use of the road on the property 'as a public thoroughfare' for at least 10 years." Id. Any questions about the adequacy of the Wilhelms' efforts to block the road are irrelevant, however, given the trial court's conclusion that Pine Meadows failed to establish continuous public use for ten years.(2)

Lastly, we have reviewed the Wilhelms' request for attorney fees on appeal and conclude this appeal was not frivolous or brought for delay. See Utah R. App. P. 33. Therefore, we deny the Wilhelms' request.

Affirmed.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 

______________________________
James Z. Davis, Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. Because the Wilhelms abandoned their breach of warranty claim during the trial court proceedings, we do not address any arguments pertaining to that claim.

2. We find no merit in Pine Meadows' assertion that the Wilhelms' claim that a public road did not exist on their property was barred by a statute of limitations.