Nonetheless, the presence of obstructions or gates, open or closed, unlocked or locked, has been treated as only one of the many factors a trial court may consider when determining if the public use was continuous. See Thurman v. Byram, 626 P.2d 447, 449 (Utah 1981) (affirming trial court's determination of public road despite finding that road was "periodically block[ed]" during the relevant time). Indeed, the Utah Supreme Court has declined opportunities to rely solely on the presence of a gate, locked or unlocked, to affirm trial courts' determinations that roads have not been dedicated to the public.
We have subsequently abandoned interpreting into the language of the statute the requirement that the owner must consent to the dedication. Draper City, 888 P.2d at 1099 (citing Leo M. Bertagnole, Inc. v. Pine Meadow Ranches, 639 P.2d 211, 213 (Utah 1981); Thurman v. Byram, 626 P.2d 447, 449 (Utah 1981)). We have, however, maintained the permissive use element.
It is not necessary to prove that the owner of the private road had the intent to offer the road to the public. Thurman v. Byram, 626 P.2d 447, 449 (Utah 1981). Rather, under section 27-12-89, the owner's intent may be inferred by the mere acquiescence in allowing the public to use the road.
Additionally, “[t]he use by individual persons in common with the public generally is regarded as permissive, and by such common use no individual person can acquire a right by prescription as against the owner of the fee.” Thurman v. Byram, 626 P.2d 447, 450 (Utah 1981) (citation and internal quotation marks omitted); accord Kohler v. Martin, 916 P.2d 910, 914 (Utah Ct.App.1996). ¶ 4 Sweeney owns approximately sixty-four acres of “open, unenclosed, undeveloped mountain terrain” (the Sweeney Property). Sweeney has permitted the public to access its property “for recreational use ... since 1979” and has constructed “switchback trails” on the property to facilitate the public's recreational access. Sweeney granted the Greater Park City Company an express, non-exclusive easement over a specified portion of its sixty-four acre parcel that allows Greater Park City Company to maintain and operate the Creole Ski Run at Park City Mountain Resort (the Ski Lift Easement). The Ski Lift Easement bisects the Sweeney Property.
However, where there is conflicting evidence and the trial court has resolved it against a party, it is not for us to redetermine the matter unless there is no substantial record evidence to support the findings. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Sharpe v. American Medical Systems, Inc., 671 P.2d 185, 187 (Utah 1983); Kohler v. Garden City, 639 P.2d 162, 165 (Utah 1981); Thurman v. Byram, 626 P.2d 447, 448-49 (Utah 1981); Knight v. Leigh, 619 P.2d 1385, 1387 (Utah 1980). Here, the release was ambiguous and, therefore, parol evidence was properly considered in determining the intent of the parties.
A prescriptive easement cannot arise over land while it is subject to public use, since use in common with the general public is regarded as permissive. Thurman v. Byram, Utah, 626 P.2d 447, 449-50 (1981). This private easement of access has been held to survive the abandonment or vacation of the public highway.
There is no need to prove the landowner's intent. As this Court unanimously held in Thurman v. Byram, Utah, 626 P.2d 447, 449 (1981): The determination that a roadway has been continuously used by members of the general public for at least 10 years is the sole requirement for it to become a public road. It is not necessary to prove the owner's intent to offer the road to the public as contended by defendants. Section 27-12-89 deems a dedication to the public as a matter of law when the required public use is established.
There was clear and convincing evidence adduced at trial which supports the finding that a 20-foot-wide right-of-way had been established by continuous public use over the years. See also, Thurman v. Byram, Utah, 626 P.2d 447 (1981). In its statement of facts, Birdie admits to a certain amount of public use, and the testimony of both Birdie partners was that they thought the right-of-way might be 20 feet in width.
We next address whether the trial court correctly concluded that deer hunters' use of the road during hunting season was not use "as a public thoroughfare" because it was with the Campbells' permission. It is firmly established under Utah law that permissive use cannot result in either adverse possession or dedication of private property to the public. See, e.g., Heber City Corp., 942 P.2d at 311-12; Thurman v. Byram, 626 P.2d 447, 449-50 (Utah 1981). In this case, the trial court concluded that the deer hunters used Ridge Road with the Campbells' permission. The trial court based this conclusion on testimony at the hearing that the Campbells had unlocked the gate every year except 1994 for deer hunting season and had relocked it at the end of each hunting season.
"A prescriptive right is in conflict with the dedication of land to the use of the general public." Thurman v. Byram, 626 P.2d 447, 449 (Utah 1981); see also Thornley Land Livestock Co. v. Morgan Bros. Land Livestock Co., 81 Utah 317, 17 P.2d 826, 827 (1932) ("[T]he use by individual persons in common with the public generally is regarded as permissive, and by such common use no individual person can acquire a right by prescription as against the owner of the fee."). We therefore reverse the trial court's rulings that the Kohlers own "an easement and a right of way over and upon the roadway," that the doctrines of promissory estoppel and equity prevent Martin from denying the existence of such an easement, and that the Kohlers had a prescriptive easement for use of the roadway.