Thurman v. Byram

10 Citing cases

  1. Wasatch County v. Okelberry

    2006 UT App. 473 (Utah Ct. App. 2006)   Cited 5 times
    Discussing the confusion related to the factors a trial court may consider when determining if a public use was continuous and attempting to articulate a workable interpretation of "continuous use" in the context of the Dedication Statute

    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.

  2. Heber City Corp. v. Simpson

    942 P.2d 307 (Utah 1997)   Cited 33 times
    Determining as a matter of law that a road was used continuously where the evidence demonstrated that "the public made a continuous and uninterrupted use of" the road "as often as they found it convenient or necessary"

    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.

  3. Draper City v. Estate of Bernardo

    888 P.2d 1097 (Utah 1995)   Cited 29 times
    Emphasizing importance of preventing general public use of road to avoid statutory dedication

    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.

  4. Van Denburgh v. Sweeney Land Co.

    315 P.3d 1058 (Utah Ct. App. 2013)   Cited 1 times

    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.

  5. Simonson v. Travis

    728 P.2d 999 (Utah 1986)   Cited 8 times
    Observing releases are enforceable when they are unambiguous, explicit, and unequivocal

    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.

  6. Mason v. State

    656 P.2d 465 (Utah 1982)   Cited 12 times
    Concluding that abutting property owner's right to preserve status quo entitles owner to easement over abandoned public road only where and to extent necessary for ingress and egress to and from property

    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.

  7. Leo M. Bertagnole, Inc. v. Pine Meadow Ranches

    639 P.2d 211 (Utah 1981)   Cited 10 times
    Upholding dedication of road to the public where numerous trespassers had never been ordered off the property and approximately 500 lots and 120 cabins were accessed by the road

    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.

  8. Kohler v. Garden City

    639 P.2d 162 (Utah 1981)   Cited 9 times

    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.

  9. Campbell v. Box Elder County

    962 P.2d 806 (Utah Ct. App. 1998)   Cited 15 times
    Examining evidence of locked gate and testimony by members of the public who had been unable to use the road because of the gate

    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.

  10. Kohler v. Martin

    916 P.2d 910 (Utah Ct. App. 1996)   Cited 3 times

    "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.