Opinion
Case No. 20031050-CA.
Filed September 16, 2004. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department, The Honorable Sheila K. McCleve.
David S. Kottler, Salt Lake City, for Appellant.
J. Bruce Reading and William G. Wilson, Salt Lake City, for Appellees.
Before Judges Bench, Davis, and Greenwood.
MEMORANDUM DECISION
Foxtail Properties, L.L.C. (Foxtail) appeals the trial court's grant of summary judgment in favor of Reece Goodrich (both individually and as a trustee), Shirley Ann Goodrich (both individually and as a trustee), Boyd J. Brown, Manuela H. Brown, Jerome H. Mooney, Bonnie S. Mooney, and Rema, Inc. (collectively, Defendants). We reverse and remand
Foxtail argues that the trial court erred by ruling that Foxtail does not have a cognizable trespass claim against Defendants. Although Foxtail concedes in its reply brief that it does not have a cognizable trespass claim against Defendants based upon the installation of the utilities beneath the Elizabeth House property (the utilities) in the 1970s, it asserts that it does have a cognizable trespass claim against Defendants based upon the continued presence and Defendants' continued use of the utilities. In their arguments to the trial court and to this court, the parties do not squarely address the issue of what, if any, interest Defendants retained in the utilities, despite the fact that Foxtail owns the Elizabeth House property. After reviewing the record, we are unable to determine whether Defendants' interest in the utilities passed to Foxtail when it purchased the Elizabeth House property, see 2 Thompson on Real Property, Second Thomas Edition § 14.04(a) (David A. Thomas ed., 2000) ("The title of the owner of land presumptively extends upward indefinitely and downward to the earth's center, embracing everything upon the surface and everything beneath it."), or whether Defendants retained an interest in the utilities when they sold the Elizabeth House property. The determination of the respective interests of the parties in the utilities is a prerequisite to a determination of whether Foxtail has a cognizable trespass claim against Defendants for either the continued presence or Defendants' continued use of the utilities.See Holm v. B M Serv., Inc., 661 P.2d 951, 952 (Utah 1983) (defining trespass as a "`wrongful entry . . . upon the lands of another'" (alteration in original) (citation omitted)). Because a determination concerning the interests of the parties in the utilities presents a genuine issue of material fact, and is necessary to resolve Foxtail's trespass claim, we reverse the trial court's grant of summary judgment in favor of Defendants on this issue. See Utah R. Civ. P. 56(c).
Foxtail also argues that the trial court erred by ruling in the alternative that even if the continued presence of the utilities constitutes a trespass, it is a permanent trespass and, therefore, any claim for it is barred by the applicable statute of limitations, which expired sometime in the 1970s. See Utah Code Ann. § 78-12-26(1) (2002). During the entirety of Defendants' ownership of the Elizabeth House property, the presence of the utilities was the result of the cooperative effort and collective consent of all parties, including Defendants, owning an interest in the Elizabeth House property. As such, the continued presence of the utilities could not have constituted a trespass at any time during Defendants' ownership of the Elizabeth House property. See Holm, 661 P.2d at 952 (defining trespass as a "`wrongful entry . . . upon the lands of another'" (emphasis added) (alteration in original) (citation omitted)). Assuming that Defendants retained an interest in the utilities, any potential trespass claim by an owner of the Elizabeth House property against Defendants for the continued presence of the utilities could not have arisen until Defendants were no longer owners of the Elizabeth House property. Because Defendants did not sell the Elizabeth House property until 1995, the trial court erred by determining that the statute of limitations applicable to any potential trespass claim against Defendants for the continued presence of the utilities expired sometime in the 1970s. See Utah Code Ann. § 78-12-26(1). The point in time when any potential trespass claim arose against Defendants for the continued presence of the utilities presents a genuine issue of fact; therefore, we reverse the trial court's grant of summary judgment in favor of Defendants on this issue.See Utah R. Civ. P. 56(c).
Although we base our resolution of this issue on the trial court's determination concerning the statute of limitations, we note Foxtail's argument that the trial court erred by characterizing Foxtail's alleged trespass claim for the continued presence of the utilities as a permanent trespass. We also note Foxtail's argument that the trial court erred by failing to address Foxtail's claim that Defendants' continued use of the utilities constitutes a continuing trespass. Because we reverse the trial court's grant of summary judgment on this issue on other grounds, we do not address these arguments. However, on remand, if the trial court determines that either the continued presence or Defendants' continued use of the utilities constitutes a trespass, we instruct the trial court to revisit these arguments and determine whether the trespass is permanent or continuing. See Breiggar Props., L.C. v. H.E. Davis Sons, Inc., 2002 UT 53, ¶¶ 8-13, 52 P.3d 1133 (discussing characterization of trespass as permanent or continuing); Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1232 (Utah 1995) (same).
Finally, Foxtail argues that the trial court erred by determining that Defendants are entitled to an easement by implication. At oral argument, Defendants' counsel conceded, and we agree, that more evidence is needed to determine whether Defendants are entitled to an easement by implication. Because genuine issues of fact exist, we reverse the trial court's grant of summary judgment in favor of Defendants on this issue. See id.
On remand, the trial court must resolve factual issues including, but not limited to, the following. First, the trial court must determine the respective interests of the parties in the utilities. Second, if the trial court determines that Defendants have an interest in the utilities, it must determine whether Foxtail has a cognizable claim for trespass based upon either the continued presence or Defendants' continued use of the utilities. Third, if Foxtail has a cognizable claim for trespass based upon either theory, the trial court must determine whether such claim is based upon a continuing or permanent trespass.See Breiggar Props., L.C. v. H.E. Davis Sons, Inc., 2002 UT 53, ¶¶ 8-13, 52 P.3d 1133 (discussing characterization of trespass as permanent or continuing); Walker Drug Co. v. La Sal Oil Co., 902 P.2d 1229, 1232 (Utah 1995) (same). Fourth, depending upon how the trial court characterizes the trespass, the trial court must determine when the claim arose and whether the applicable statute of limitations has expired. See Utah Code Ann. § 78-12-26(1). Finally, the trial court must resolve several factual issues before it can determine whether Defendants are entitled to an easement by implication.
WE CONCUR: Russell W. Bench, Associate Presiding Judge, and Pamela T. Greenwood, Judge.