The Campbell court relied, in part, on two cases from other jurisdictions rejecting the notion that a lack of access renders a title unmarketable. See id. at 474–75 (discussing Mostrong v. Jackson , 866 P.2d 573 (Utah App. 1993), and Sinks v. Karleskint , 130 Ill.App.3d 527, 85 Ill.Dec. 807, 474 N.E.2d 767 (1985) ). Notably, the Campbell court concluded that the lack of access to real property doesn't constitute an “encumbrance” in a general warranty deed because the lack of access isn't the kind of title defect that would defeat the purchasers' right to possession. Id. at 475.

Fidelity does not dispute that the value of the land would be greater if Woody Creek had permanent legal access. But even a complete lack of access, Fidelity points out, does not make title unmarketable. See Campbell v. Summit Plaza Associates, 192 P.3d 465, 473-75 (Colo. App. 2008) (holding that a lack of access does not constitute an encumbrance capable of violating the covenant against encumbrances in a warranty deed); Mostrong v. Jackson, 866 P.2d 573, 578 (Utah Ct. App. 1993) (marketable title does not necessarily include legal access to property). Simply because there might be litigation in the future surrounding rights of access to this parcel does not make title unmarketable. That future litigation, if it occurs, will not involve the issue of whether title is valid or who possesses title.

In other words, it must be possible to put him [or her] in status quo. Mostrong v. Jackson, 866 P.2d 573, 580 (Utah Ct.App. 1993), cert. denied, 878 P.2d 1154 (Utah 1994). Intelliquis argues that the effect of the mistake was that instead of supplying 120,000 shares at no cost, it would be required to purchase shares on the open market, which, at the time, would have cost $75,000.

¶16 Utah law is not to the contrary. In Mostrong v. Jackson , 866 P.2d 573 (Utah Ct. App. 1993), we determined that a landowner’s title to a piece of property was not unmarketable merely because it may have lacked "lawful access." Id. at 578.

¶13 As a preliminary matter, we note that whether lack of legal access to property necessarily renders title unmarketable is an open question in Arizona, and other jurisdictions are divided on the issue. Compare Barasky v. Huttner, 620 N.Y.S.2d 121, 122 (N.Y. App. Div. 1994) ("Lack of legal access renders title unmarketable."), and Haines v. Old Republic Nat. Title Ins. Co., 178 P.3d 1086, 1090 (Wyo. 2008) ("[W]hen property completely lacks [legal] access, it is usually held that its title is unmarketable . . . ."), with Mostrong v. Jackson, 866 P.2d 573, 578 (Utah Ct. App. 1993) (buyers of property failed to establish "that marketable title in this instance necessarily included legal access to the property"). Because, however, the Lindahls and the Havens did not challenge the Stazenskis' argument that lack of legal access renders title unmarketable either in the superior court or in their answering brief, we assume, without deciding, that lack of legal access to property renders its title unmarketable.

The distinction was drawn by the Idaho Court of Appeals, “Insurable title merely means that property is capable of being insured, not that the title is good or marketable.” (Brown v. Yacht Club of Coeur d’Alene, Ltd. (Idaho App. 1986) 722 P.2d 1062, 1065; see also Mostrong v. Jackson (Utah App. 1993) 866 P.2d 573, 578-579; Hebb v. Severson, supra, 201 P.2d at p. 160; compare Holmby, Inc. v. Dino (Nev. 1982) 647 P.2d 392, 394 [sales agreement provided that title insurance would serve as evidence of marketable title meant that seller could tender marketable title]; Heider v. Deitz (Or. 1963) 380 P.2d 619, 622 [parties agreed that title insurance would be the standard of marketability of title].) In any event, the mere fact an insurance company in the honest exercise of professional judgment would insure title does not lead in every case to the conclusion the title was marketable.

Id. at 410. Mostrong v. Jackson, 866 P.2d 573, 577-78 (Utah Ct.App. 1993), is one of the only published cases we have found that has addressed whether sellers breached their contractual duty to buyers to provide marketable title by failing to provide legal access to the real property. The court stated: The issue of whether marketable title exists may be a question of law or a mixed question of law and fact, depending on the circumstances.

Legal conclusions are reviewed for correction of error." Mostrong v. Jackson, 866 P.2d 573, 577 (Utah Ct.App. 1993) (citations omitted). ¶ 15 Elder next asserts that the trial court erred in deciding that the subsequent agreement between Shar's Cars and Rutherford did not constitute a full release of liability under the theories of novation, executory accord, accord and satisfaction, release, waiver, or estoppel.

This is the trial court's prerogative. See Mostrong v. Jackson, 866 P.2d 573, 579 (Utah App. 1993), cert. denied, 878 P.2d 1154 (Utah 1994). Nonetheless, even wholly ignoring Alicia's testimony, there is simply no evidence that supports the court's finding that "it is unlikely that, if the children were to move to Corvallis, Oregon, plaintiff would continue their religious training."