Van Denburgh v. Sweeney Land Co.
2013 UT App 265
| Utah Ct. App. | 2013Background
- Sweeney Land Company and Park City II own ~64 acres of open, undeveloped mountain land and have permitted public recreational access since 1979, including constructing switchback trails and posting signage (the Public License).
- Greater Park City Company holds an express, non-exclusive Ski Lift Easement across part of Sweeney’s parcel to operate the Creole Ski Run; that easement bisects Sweeney’s property.
- Van Denburgh’s vacation home abuts Sweeney Property; he claimed a prescriptive easement over a small strip (the Path) connecting his property to the Creole Ski Run.
- The trial court assumed Van Denburgh’s use might have been open and continuous for 20 years but found Sweeney rebutted the presumption of adversity by showing the use was permissive under the Public License.
- Sweeney presented deposition and affidavit evidence that it openly permitted neighbors and the public to access all parts of the property, that permissive access was communicated publicly, and that neighbors understood their access to be by permission.
- Van Denburgh relied on a 2009 letter, signage, rope fencing, and claimed distinctions in how he and predecessors used/maintained the Path to argue his use was adverse; the court rejected those arguments and granted summary judgment for Sweeney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Van Denburgh acquired a prescriptive easement over the Path | Van Denburgh: his and predecessors’ open, continuous use for 20+ years established a prescriptive easement; signage and fence do not show permissive use | Sweeney: the Public License openly permitted public recreational use of the entire parcel, so use was permissive (not adverse); permissive use rebuts presumption of adversity | No prescriptive easement; summary judgment for Sweeney (use was permissive) |
| Relevance of Ski Lift Easement to prescriptive claim | Van Denburgh: Ski Lift Easement and other documents show parts of Sweeney property were public easements but excluded the Path, implying his use was not permissive | Sweeney: Ski Lift Easement is a private easement for ski facilities and does not negate Sweeney’s Public License; it does not subdivide the parcel to support adverse use claim | Ski Lift Easement irrelevant to prescriptive claim; it doesn’t contradict permissive Public License |
| Effect of 2009 letter and “No Trespassing” gate/signs on permissiveness | Van Denburgh: the letter admitting Path isn’t part of public easement and gate/signs show lack of permission | Sweeney: the letter warned of trespass but expressly offered continued permissive access if Van Denburgh signed an agreement; the gate and sprinklers were recent and not evidence of long-standing adverse use | Letter and signs showed Sweeney considered access permissive and revocable; do not establish adverse use for prescriptive period |
| Whether Van Denburgh’s maintenance/clearing of the Path made his use different (adverse) | Van Denburgh: he and predecessors improved/maintained the Path, distinguishing their use from the public’s and evidencing claim of right | Sweeney: neighbors routinely bushwhacked paths and maintenance (weed-whacking) is permitted; Van Denburgh’s distinctive hard improvements were recent and postdate prescriptive period | Clearing/brush maintenance is consistent with permissive public use; Van Denburgh’s later hard improvements are too recent to establish prescription |
Key Cases Cited
- Basic Research, LLC v. Admiral Ins. Co., 2013 UT 6, 297 P.3d 578 (summary judgment reviewed for correctness)
- Potter v. Chadaz, 1999 UT App 95, 977 P.2d 533 (existence of easement is a conclusion of law)
- Buckley v. Cox, 247 P.2d 277 (Utah 1952) (prescriptive easement requires clear and convincing proof)
- Marchant v. Park City, 788 P.2d 520 (Utah 1990) (elements: open, notorious, adverse, continuous for 20 years)
- Valcarce v. Fitzgerald, 961 P.2d 305 (Utah 1998) (once open/continuous for 20 years shown, adversity is presumed absent evidence of permissive use)
- Thurman v. Byram, 626 P.2d 447 (Utah 1981) (use common with public is presumptively permissive and cannot support individual prescription)
- Kohler v. Martin, 916 P.2d 910 (Utah Ct. App. 1996) (public/common use defeats individual prescriptive claims)