Opinion
Case No. 20080122-CA.
Filed February 5, 2009. Not For Official Publication
Appeal from the Second District, Farmington Department, 060700272 The Honorable Darwin C. Hansen.
Robert A. Echard and T.R. Morgan, Ogden, for Appellants.
John D. Morris and Jamie L. Nopper, Salt Lake City, for Appellees.
Before Judges Thorne, Bench, and McHugh.
MEMORANDUM DECISION
Glen and Karen Schimmelpfennig appeal the trial court's order granting Donald O. and Cindy Hart's petition for a permanent injunction, recognizing an express and an implied easement and enjoining the Schimmelpfennigs from any obstruction of the common driveway between the parties' homes. We affirm.
The Schimmelpfennigs argue that the trial court erred when it found that the Harts had both an express and an implied easement to use the portion of the common driveway that was located on the Schimmelpfennigs' property.
The ultimate determination of whether an easement exists is a conclusion of law, which we review for correctness. Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998). However, the existence of an easement is also a highly fact-dependent question; therefore, we accord the trial judge a measure of discretion when applying the correct legal standard to the facts, and overturn a ruling concerning the existence of an easement only if the judge exceeded the discretion granted. Id.
Carrier v. Lindquist, 2001 UT 105, ¶ 11, 37 P.3d 1112.
Utah law contains "no specific requirements for the creation of an express easement." Potter v. Chadaz, 1999 UT App 95, ¶ 9, 977 P.2d 533. However, we have stated that "[a]n express easement . . . requires `mutual assent by the parties manifesting their intention to be bound by its terms.'" Green v. Stansfield, 886 P.2d 117, 122 (Utah Ct.App. 1994) (quoting Southland Corp. v. Potter, 760 P.2d 320, 322 (Utah Ct.App. 1988)). Further, "the conveyance of an express easement requires consideration." Chadaz, 1999 UT App 95, ¶ 9. Finally, easements are subject to Utah's Statute of Frauds, which dictates that "[n]o . . . interest in real property . . . shall be created, granted, assigned, surrendered or declared otherwise than by act or operation of law, or by deed or conveyance in writing." Utah Code Ann. § 25-5-1 (2007); see also Green, 886 P.2d at 122 ("Under Utah law, easements must generally comply with the statute of frauds by being reduced to writing."). Applying these principles, we conclude that the trial court did not err in finding that the common driveway was part of an express easement.
First, the parties showed mutual assent in creating the common driveway. The Harts and Tom and Lori Fox, the predecessors in interest to the Schimmelpfennigs, jointly submitted a plat map that shows they initially planned to place an access road upon the utility easement. Likewise, Mr. Hart and Mr. Fox both testified that they agreed to build a driveway for their common use. There is no dispute that the Foxes and the Harts' intent was to place the center of the driveway exactly on the property line so that each lot would be burdened with an equal portion of the driveway. However, because "it was getting late in the fall," the Foxes and the Harts agreed to pave the existing dirt access road, which the parties knew was near the property line. Despite the Schimmelpfennigs' assertions to the contrary, the record supports the trial court's finding that the Foxes and the Harts later mutually agreed to forego the survey of the property line and that "[t]here was a meeting of the minds between the Foxes and [the Harts] that: (1) the homes share a common driveway; and (2) the driveway be where the current driveway is." The trial court's finding that this was done by mutual assent is greatly bolstered by the fact that Mr. Fox personally paved the common driveway that was located primarily on his property. In addition, the Harts and the Foxes used the common driveway without objection from either party for approximately five years until the Foxes sold their property to the Schimmelpfennigs.
Indeed, the Schimmelpfennigs and the Harts thereafter jointly used the common driveway for six more years.
Second, there was consideration in support of the conveyance of the express easement. In Orton v. Carter, 970 P.2d 1254 (Utah 1998), the plaintiff sought to establish an express easement on a common driveway that straddled his property and that of his neighbor. See id. at 1255-56. The Utah Supreme Court held there was sufficient consideration because "each owner gave to the other the use of . . . his property as consideration for the bargain to create the easements." Id. at 1260. As in Orton, the easement in this case is supported by adequate consideration, with the owners granting each other the right to use some portion of their property. Contrary to the Schimmelpfennigs' argument, the fact that the majority of the driveway in this case rests on the Schimmelpfennigs' property is immaterial. It is undisputed that a portion of the common driveway also rests on the Harts' property, and it is not for this Court to "inquire into the adequacy of consideration unless it is so insufficient or illusory as to render enforcement of the contract unconscionable." Reese v. Reese, 1999 UT 75, ¶ 27, 984 P.2d 987.
Finally, the easement in this case is not barred by Utah's Statute of Frauds, even though it was never reduced to writing.
[A] verbal agreement to transfer an interest in land can be taken out of the statute of frauds, and . . . one can be estopped from challenging the oral agreement if three requirements are met: A court must find (1) that there was such an agreement, (2) that there had been part or full performance, and (3) that there was reliance thereon.
Orton, 970 P.2d at 1259.
As has already been discussed, there is ample evidence to support the trial court's finding that there was agreement between the Harts and the Foxes to place the common driveway in its current location. Likewise, there was performance of the agreement. Mr. Fox paved the driveway, locating the majority of it on his own property, and both the Harts and the Foxes used it to access their homes.
Finally, there was reliance on the agreement. The Harts landscaped their property, using all of the property adjacent to the common driveway. Indeed, the Harts' installation of a fence and cement pad on their property left the common driveway as the only reasonable method of accessing the rear portion of the their lot. Additionally, the parties have jointly maintained and enjoyed the common driveway.
At oral argument, the Schimmelpfennigs suggested that the Harts have recently been uncooperative in maintaining the common driveway, and both parties have alleged that the other has blocked the driveway on occasion. We note that both parties may have legal obligations to maintain the easement and to keep it free of obstructions. See Carrier v. Lindquist, 2001 UT 105, ¶ 19, 37 P.3d 1112 (considering obstruction of private easement over a public way, and noting that "[i]t is a long-held tenet of property law that a servient estate cannot unreasonably restrict or interfere with the proper use of . . . [an] easement" (omission and second alteration in original) (internal quotation marks omitted)); Wykoff v. Barton, 646 P.2d 756, 759 (Utah 1982) (same for private easement over private property); Dansie v. Hi-Country Estates Homeowners Ass'n, 2004 UT App 149, ¶ 18, 92 P.3d 162 ("Absent any agreement on the question of maintenance of a private way, the burden of upkeep should be distributed between the dominant and servient tenements in proportion to their relative use of the road, as nearly as such may be ascertained." (internal quotation marks omitted)).
We hold that the trial court did not exceed its "measure of discretion when applying the correct legal standard to the facts," Carrier v. Lindquist, 2001 UT 105, ¶ 11, 37 P.3d 1112, and affirm its conclusion that the driveway was created by express easement.
Because we affirm the court's ruling on this basis, we need not reach the court's alternative theory of implied easement.
We Concur: William A. Thorne Jr., Associate Presiding Judge, Russell W. Bench, Judge