"if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action, and this is true even though such ground or theory is not urged or argued on appeal by appellee, was not raised in the lower court, and was not considered or passed on by the lower court."Limb v. Federated Milk Producers Ass'n, 23 Utah 2d 222, 225-26 n. 2, 461 P.2d 290, 293 n. 2 (1969) (emphasis added) (quoting 5 C.J.S. Appeal Error § 1461(1)); see also Orton v. Carter, 970 P.2d 1254, 1260 (Utah 1998); Ovard v. Cannon, 600 P.2d 1246, 1247 n. 3 (Utah 1979). Therefore, because the alternate ground for affirmance presented by McPhie is apparent from the record and was briefed and argued by the parties on appeal, we choose to address it.
An easement will be implied upon the severance of an estate when the use made of the servient parcel is manifest, continuous and reasonably necessary to the enjoyment of the dominant parcel.Demoski v. New, 737 P.2d 780, 783-84 (Alaska 1987); Freightways Terminal Co. v. Indus. Commercial Constr., Inc., 381 P.2d 977, 982-84 (Alaska 1963). See also Woods v. Houle, 235 Mont. 158, 766 P.2d 250, 253 (1988) (separation of unified estate required); Pogue v. Collins, 146 Cal. 435, 80 P. 623, 624 (1905) (same); Alrich v. Bailey, 97 Nev. 342, 630 P.2d 262, 264 (1981) (use must be continuous and manifest); Civilian Defense Inc. v. Ross, 78 Ohio Law Abs. 172, 152 N.E.2d 160, 161 (App. 1958) (same); Ovard v. Cannon, 600 P.2d 1246, 1247 (Utah 1979) (use must be reasonably necessary to enjoyment of dominant parcel); Rightsell v. Hale, 90 Tenn. 556, 18 S.W. 245, 246 (1891) (same). See also Hutcheson v. Sumrall, 220 Miss. 834, 72 So.2d 225, 227 (1954) (use is apparent if discoverable upon inspection). It is not necessary that the parcels be contiguous. Freightways, 381 P.2d at 983.
The burden is on the appellant to demonstrate that the trial court committed error, and not that appellant should have won its case. We review the evidence, and the inferences arising therefrom to favor the trial court's findings of fact, Ovard v. Cannon, Utah, 600 P.2d 1246 (1979); Rodgers v. Hansen, Utah, 580 P.2d 233 (1978). The trial court properly found that the procedural requirements set forth in § 10-2-501 were met. The finding that the petition was signed by a majority of the registered voters, as required by § 10-2-502, is supported by the evidence.
In equity cases our scope of review is broad, and this Court may weigh the evidence and determine the facts. Ovard v. Cannon, Utah, 600 P.2d 1246 (1979). Generally, we defer to the findings of fact of the trial judge unless the findings are based on an erroneous standard, although this Court may under some circumstances reassess the facts itself.
The second is that plaintiff, through the conduct of its officers, is estopped to deny the existence of a partnership. On review, this Court is obliged to view the evidence and all inferences that may be drawn therefrom in a light most supportive of the findings of the trier of fact. Ovard v. Cannon, Utah, 600 P.2d 1246 (1979); Culley v. Culley, 17 Utah 2d 62, 404 P.2d 657 (1965); Cheney v. Rucker, 14 Utah 2d 205, 381 P.2d 86 (1963). The findings and judgment of the trial court will not be disturbed when they are based on substantial, competent, admissible evidence.
Davis v. Davis, 111 Utah 324, 178 P.2d 394 (1947); Stratford v. Wood, 11 Utah 2d 251, 358 P.2d 80 (1961).Ovard v. Cannon, Utah, 600 P.2d 1246 (1979). Defendants further contend the trial court erred in striking the testimony of one witness, Christensen.
Read v. Read, Utah, 594 P.2d 871 (1979); Wright v. Wright, Utah, 586 P.2d 443 (1978); DeRose v. DeRose, 19 Utah 2d 77, 426 P.2d 221 (1967).Ovard v. Cannon, Utah, 600 P.2d 1246 (1979); McBride v. McBride, Utah, 581 P.2d 996 (1978); Ream v. Fitzen, Utah, 581 P.2d 145 (1978); Peterson v. Carter, Utah, 579 P.2d 329 (1978); Fletcher v. Fletcher, Utah, 615 P.2d 1218 (1980), and cases cited therein. The trial court in a divorce action is vested with plenary power to distribute marital property according to the demands of justice, and it may consider all relevant factors in the making of such distribution, including the financial situation of the parties, the present and expected income, etc.
While there was no recorded easement permitting access through the north road, there was legal access through an easement by implication or necessity. See Ovard v. Cannon, 600 P.2d 1246, 1247 (Utah 1979) (describing elements of easement by implication or necessity). Security Title subsequently attempted to resolve any lingering question about the legality of the easement by securing and recording warranty deeds for the easement. Further, Lee Roy Jackson testified that he had told the Mostrongs that there was only permissive use of the south road, and the trial court found his testimony to be credible.
To affirm the trial court's judgment, we must, therefore, determine whether the clear weight of the evidence supports each of the elements necessary to constitute an easement by implication: (1) that unity of title was followed by severance; (2) that the servitude was apparent, obvious, and visible at the time of severance; (3) that the easement was reasonably necessary to the enjoyment of the dominant estate; and (4) that the use of the easement was continuous rather than sporadic. Ovard v. Cannon, 600 P.2d 1246, 1247 (Utah 1979); Chournos v. Alkema, 27 Utah 2d 244, 494 P.2d 950, 952 (1972); Southland Corp. v. Potter, 760 P.2d 320, 323 (Utah Ct.App. 1988). The record clearly shows that unity of title was followed by severance, and that use of the easement was continuous rather than sporadic.