Wasatch v. Okelberry

1 Town of Leeds v. Prisbrey, 2008 UT 11, ___P.3d ___; Utah
County v. Butler, 2008 UT 12, ___P.3d ___.
2008 UT 10
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Wasatch County, a body politic No. 20070011
of the State of Utah,
Plaintiff and Respondent,
v.
E. Ray Okelberry, Brian Okelberry,
Eric Okelberry, West Daniels
Land Association, Utah Division
of Wildlife Resources, and John F I L E D
Does 1-25,
Defendants and Petitioners. February 12, 2008
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Fourth District, Heber Dep’t
The Honorable Donald J. Eyre, Jr.
No. 010500388
Attorneys: Thomas L. Low, Scott H. Sweat, Heber City, for
plaintiff
Don R. Petersen, Leslie W. Slaugh, Provo, for
defendants
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 In this case and two companion cases that we also
decide today,1 we consider the operation of Utah Code section 72-
5-104(1) (the “Dedication Statute”), which provides as follows:
“A highway is dedicated and abandoned to the use of the public
when it has been continuously used as a public thoroughfare for a

2 Utah Code Ann. § 72-5-104(1) (2001).
3 The underlying lawsuit also included Maple Canyon Road.
The trial court found that this road had not been dedicated and
abandoned to the public. Neither party appealed this decision,
and we do not address it here.
4 Wasatch County settled its dispute with the Utah Division
of Wildlife Resources in 2003.
5 Portions of Ridge Line Road and Parker Canyon Road
(continued...)
No. 20070011 2
period of ten years.”2 We granted certiorari in this case to
consider whether the court of appeals erred in its application of
the standard for ascertaining continuous use as a public
thoroughfare under this statute. We conclude that it did so err.
We reverse and remand for the entry of specific findings of fact
relevant to the standard we announce today and for an application
of that standard.
BACKGROUND
¶2 In 1957, Roy Okelberry and his sons, E. Ray and Lee,
purchased a large tract of land (the “Property”) in Wasatch
County near Wallsburg, Utah. E. Ray and Lee later acquired their
father’s interest in the Property. Sometime thereafter, Lee sold
his interest in the Property to E. Ray and E. Ray’s sons, Brian
and Eric. E. Ray, Brian, and Eric Okelberry (the “Okelberrys”)
currently own the Property and use it for their livestock
operations.
¶3 Several unimproved mountain roads cross the Property,
all of which begin and end (or connect with roads that begin and
end) at points outside of it. Four of these roads are at issue
in this case: Circle Springs Road, Thorton Hollow Road, Parker
Canyon Road, and Ridge Line Road (collectively, the “Four
Roads”).3 When Roy, E. Ray, and Lee Okelberry purchased the
Property in 1957, fences on its east and south sides separated it
from United States Forest Service property, and wire gates along
these fences controlled access to the Four Roads, requiring
persons entering or exiting the Property to open the gates before
proceeding.
¶4 In 2001, Wasatch County filed a Complaint for
Declaratory Judgment and Quiet Title against the Okelberrys, the
Utah Division of Wildlife Resources,4 and West Daniels Land
Association,5 seeking to have the Four Roads declared dedicated

5 (...continued)
traverse property owned by West Daniels Land Association (the
“Association”) immediately adjacent to the Property. The
Okelberrys are members and shareholders in the Association and
use the Association’s land, together with their own, for grazing
livestock. The Association initially made an appearance through
counsel, but counsel later withdrew and no successor was
appointed. Wasatch County thereafter sought default summary
judgment against the Association. The Okelberrys opposed this
motion, arguing that as members of the Association they had “a
vested interest to see that no judgment is entered in this matter
on behalf of the plaintiff” and that, at trial, they “will
present evidence that there are no established roads across the
property of [the] Association.” For reasons that are unclear
from the record, the trial court did not enter a ruling on
Wasatch County’s default judgment motion prior to trial. In its
posttrial Findings of Fact and Conclusions of Law, the court
noted that the Association’s “default was entered,” but that the
Okelberrys had been allowed to submit “[e]vidence regarding the
use of those portions of the roads at issue which are located in
[the] Association’s property” at trial. The trial court made its
determinations regarding the Four Roads without distinguishing
between the Okelberrys’ property and the Association’s property.
We likewise do not distinguish between the properties and refer
only to the interests of the Okelberrys because the parties have
not appealed this issue.
6 An earlier version of this statute was in effect at the
time Wasatch County claims the Four Roads were dedicated and
abandoned to the use of the public. See Utah Code Ann. § 27-12-
89 (1995). A 1998 amendment to the earlier version renumbered
this section but made no substantive changes to it. 1998 Utah
Laws 861. We therefore refer to the current version of the
statute throughout this opinion.
3 No. 20070011
and abandoned to the use of the public pursuant to Utah Code
section 72-5-104.6 During a three-day bench trial, Wasatch
County presented several witnesses who testified that they had
used the Four Roads without the Okelberrys’ permission for
recreational purposes during the 1960s, 1970s, and 1980s. These
witnesses also testified that although there were gates on the
roads, their use of the roads was unrestricted. The Okelberrys
presented evidence and testimony that members of the public had
not had unrestricted access to the roads, but that the gates on
the roads had been locked, at least occasionally, as early as the
late 1950s and that “No Trespassing,” “Keep Out,” or “Private”
signs were posted. The Okelberrys testified that they had given
permission to a large number of people in the community to use

No. 20070011 4
their roads and Property and had sold trespass and hunting
permits. And witnesses testified that the Okelberrys, in the
mid-1990s, placed their Property in a cooperative wildlife
management unit for use as a private hunting unit. The
Okelberrys and their employees testified that when they
encountered persons on the Property or roads without express
permission to be there, they asked them to leave.
¶5 At the conclusion of the bench trial, the trial court
entered findings of fact and conclusions of law and, later,
supplemental findings of fact. The trial court found “that there
was no public use of the various roads in the 1940s or before and
also that no evidence of vehicular use prior to the 1950s
existed.” The court recognized that there were gates on the
roads that the Okelberrys or their employees locked “[a]t various
times in the past,” but found that they were locked “on a more
permanent basis” beginning in the early 1990s. In addition, the
court found that “[p]rior to the gates being locked, the
existence of the gates did not interrupt the public’s use of the
roads.”
¶6 In its Conclusions of Law, the trial court stated as
follows:
Taking even the [Okelberrys’] factual
assertions as true, it is clear that
individuals using the roads beginning in the
late 1950s until the late 1980s or early
1990s used the roads without interruption,
they used the roads freely, and though not
constantly, they used the roads continuously
as they needed. Therefore, [the] Court finds
that prior to the interrupting mechanisms
being put in place the roads in question were
subject to continuous use . . . .
The trial court also found that the majority of those using the
roads were nonpermissive users and members of the general public.
Thus, the court determined that “[p]rior to the locking of the
gates in the early 1990s the roads were used as public
thoroughfares.” And the court found “that the continuous use as
a public thoroughfare continued for at least ten years, if not
much longer, or for multiple periods of ten years.” The court
therefore concluded that Wasatch County had established by clear
and convincing evidence that the Four Roads had been abandoned
and dedicated to the public. The court decided, however, that
Wasatch County was equitably estopped from opening the roads to
public use because the Okelberrys had, since 1989, asserted
private control over the roads. The court stated that “[t]o

7 See Wasatch County v. Okelberry, 2006 UT App 473, ¶ 33,
153 P.3d 745.
8 D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006 UT
62, ¶ 10, 147 P.3d 414.
9 State v. Dean, 2004 UT 63, ¶ 7, 95 P.3d 276.
10 See State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096.
11 Heber City Corp. v. Simpson, 942 P.2d 307, 309-10 (Utah
1997).
5 No. 20070011
allow the County now to assert an ownership interest in these
roads would cause the Okelberrys injury [and] would be unjust.”
¶7 Wasatch County appealed the trial court’s equitable
estoppel determination, and the Okelberrys cross-appealed the
court’s decision that the Four Roads had been dedicated to the
public. The court of appeals reversed the trial court’s
equitable estoppel decision and upheld its decisions regarding
the public dedication of the Four Roads.7 We granted certiorari
to determine whether the court of appeals applied the correct
standard for determining whether a road has been continuously
used as a public thoroughfare pursuant to Utah Code section 72-5-
104. The parties do not challenge, and we do not address, the
equitable estoppel issue.
STANDARD OF REVIEW
¶8 “On certiorari, we review for correctness the decision
of the court of appeals, not the decision of the district
court.”8 “The correctness of the court of appeals’ decision
turns on whether that court correctly reviewed the trial court’s
decision under the appropriate standard of review.”9 An
appellate court reviews a trial court’s legal interpretation of
the Dedication Statute for correctness and its factual findings
for clear error.10 But whether the facts of a case satisfy the
requirements of the Dedication Statute is a mixed question of
fact and law that involves various and complex facts, evidentiary
resolutions, and credibility determinations.11 Thus, an
appellate court reviews “a trial court’s decision regarding
whether a public highway has been established under [the
Dedication Statute] . . . for correctness but grant[s] the court

12 Id. at 310.
13 U.S. Const. amend. V (“[N]or shall private property be
taken for public use, without just compensation.”); Utah Const.
art. I, § 22 (“Private property shall not be taken or damaged for
public use without just compensation.”).
14 Utah Code Ann. § 72-5-104(1) (2001).
15 See Draper City v. Estate of Bernardo, 888 P.2d 1097,
1099 (Utah 1995); Bonner v. Sudbury, 417 P.2d 646, 648 (Utah
1966).
16 Boyer v. Clark, 326 P.2d 107, 109 (Utah 1958).
17 Campbell v. Box Elder County, 962 P.2d 806, 809 (Utah Ct.
(continued...)
No. 20070011 6
significant discretion in its application of the facts to the
statute.”12
ANALYSIS
¶9 Both the United States and Utah Constitutions prohibit
uncompensated takings of private property.13 Yet, under certain
circumstances, Utah statutory law allows property to be
transferred from private to public use without compensation. The
Dedication Statute at issue in this case allows for such a
transfer. The statute provides that “[a] highway is dedicated
and abandoned to the use of the public when it has been
continuously used as a public thoroughfare for a period of ten
years.”14 In light of the constitutional protection accorded
private property, we have held that a party seeking to establish
dedication and abandonment under this statute bears the burden of
doing so by clear and convincing evidence.15
¶10 In a number of our past cases, we have sought to
interpret the phrase “continuously used as a public
thoroughfare.” We have explained that such use occurs when “the
public, even though not consisting of a great many persons,
[makes] a continuous and uninterrupted use” of a road “as often
as they [find] it convenient or necessary.”16 The court of
appeals, borrowing language from one of our cases dealing with
the doctrine of right-of-way by prescription, has added to this
definition as follows: “‘[U]se may be continuous though not
constant[] . . . provided it occurred as often as the claimant
had occasion or chose to pass. [. . .] Mere intermission is not
interruption.’”17

17 (...continued)
App. 1998) (quoting Richards v. Pines Ranch, Inc., 559 P.2d 948,
949 (Utah 1977)). The entire passage from which this quote was
extracted reads as follows:
“A way may be established by
prescription without direct evidence of its
actual use during each year. A use may be
continuous though not constant. A right of
way means a right to pass over another’s
land, more or less frequently, according to
the nature of the use to be made by the
easement; and how frequently is immaterial,
provided it occurred as often as the claimant
had occasion or chose to pass. It must
appear not to have been interrupted by the
owner of the land across which the right is
exercised, nor voluntarily abandoned by the
claimant. Mere intermission is not
interruption.”
Richards, 559 P.2d at 949 (quoting 1 Thompson on Real Property §
464 (1924)).
18 Heber City Corp. v. Simpson, 942 P.2d 307, 310 (Utah
1997).
19 Wasatch County v. Okelberry, 2006 UT App 473, ¶ 18, 153
P.3d 745. The balancing test articulated by the court of appeals
(continued...)
7 No. 20070011
¶11 Despite the best efforts of this court and the court of
appeals, a workable interpretation of “continuous use” in the
context of the Dedication Statute has remained elusive. We have
described ourselves as “hard-pressed to establish a coherent and
consistent statement of the law on a fact-intensive, case-by-case
review of trial court rulings.”18 In reviewing the case now
before us, the court of appeals thoughtfully sought to bring some
coherency and consistency to this area of the law by articulating
a balancing test:
In deciding whether a locked gate acted as an
interruptive force sufficient to restart the
running of the statutory ten-year period, the
trial court should weigh the evidence
regarding the duration and frequency that the
gate was locked against the frequency and
volume of public use to determine if there is
clear and convincing evidence that public use
of the road was continuous.19

19 (...continued)
applies only to locked gates, but it could arguably apply to
other types of interruptions, and we consider its potentially
broad application here.
20 See Duke v. Graham, 2007 UT 31, ¶ 16, 158 P.3d 540.
21 Id. (quoting State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d
1276).
22 State v. Navaro, 26 P.2d 955, 956 (Utah 1933).
No. 20070011 8
¶12 We find the court of appeals’ approach problematic.
The proposed test could be read to suggest that the elements of
the Dedication Statute are met where the duration and frequency
of continuous use as a public thoroughfare simply outweigh the
duration and frequency of interruption during a ten-year period.
Under this standard, it could be argued that even where there is
a significant interruption in the use of a road, if the period of
use is greater than the length of the interruption, the
requirements of the Dedication Statute would be satisfied. We
think it unlikely that this is what the Legislature intended when
it required that a road be “continuously used.” Indeed, to
balance interruptions in use against frequency of use in order to
determine whether a road was continuously used is inconsistent
with the very notion of continuous use--any sufficient
interruption in use necessarily makes use noncontinuous.
Moreover, we think that this balancing test fails to remedy the
lack of predictability from which this area of the law suffers.
Thus, while we reject the court of appeals’ interpretive
approach, its careful review of our case law and attempt to bring
coherence to that case law highlights for us the need for a
clear, workable standard. We take this opportunity to articulate
such a standard.
¶13 In interpreting a statute, our goal is to ascertain the
Legislature’s intent.20 We do so by first evaluating “the ‘best
evidence’ of legislative intent, namely, ‘the plain language of
the statute itself.’”21 We give the words of a statute their
“plain, natural, ordinary, and commonly understood meaning, in
the absence of any statutory or well-established technical
meaning, unless it is plain from the statute that a different
meaning is intended.”22
¶14 The word “continuously” is neither defined in the
Dedication Statute nor imbued with technical meaning. Thus, we
understand “continuously” to have its plain meaning of “without

23 Merriam-Webster’s Collegiate Dictionary defines
“continuous” as “marked by uninterrupted extension in space,
time, or sequence.” Merriam-Webster’s Collegiate Dictionary 270
(11th ed. 2003).
24 See Campbell v. Box Elder County, 962 P.2d 806, 809 (Utah
Ct. App. 1998).
9 No. 20070011
interruption.”23 A party claiming dedication must therefore
establish by clear and convincing evidence that a road has been
used without interruption as a public thoroughfare for ten years
in order for the road to become dedicated to public use.
¶15 The lack of clarity in this area of the law stems
largely from the fact that we have never set forth a standard for
determining what qualifies as a sufficient interruption to
restart the running of the required ten-year period under the
Dedication Statute. We do so now by setting forth a bright-line
rule by which we intend to make application of the Dedication
Statute more predictable:
An overt act that is intended by a property
owner to interrupt the use of a road as a
public thoroughfare, and is reasonably
calculated to do so, constitutes an
interruption sufficient to restart the
running of the required ten-year period under
the Dedication Statute.
This rule does not change the burden of the party claiming
dedication. For a highway to be deemed dedicated to the public,
the party claiming dedication must establish by clear and
convincing evidence that the road at issue was continuously used
as a public thoroughfare for a period of ten years; credible
evidence of the type of interruption defined above--an overt act
intended to and reasonably calculated to interrupt use of a road
as a public thoroughfare--simply precludes a finding of
continuous use.
¶16 In order to elucidate this standard, we think it
helpful to distinguish between an interruption in use and an
intermission in use. The distinction lies in the intent and
conduct of the property owner. As noted above, a road may be
used continuously even if it is not used constantly or
frequently.24 For example, a road may be used by only one person
once a month, but if this use is as frequent as the public finds

25 Boyer v. Clark, 326 P.2d 107, 109 (Utah 1958).
No. 20070011 10
it “convenient or necessary,”25 and the landowner has taken no
action intended and reasonably calculated to interrupt use, the
use is continuous. The one-month period of time between usages
is a mere intermission, not an interruption. Likewise, a road
may be heavily traveled by the public during certain times of the
year but impassable because of weather-related conditions at
other times. Though the use is not constant, if it occurs as
often as the public finds it convenient or necessary, and the
landowner has taken no action intended and reasonably calculated
to interrupt use, the use is continuous. The period of
impassability due to weather is a mere intermission, not an
interruption.
¶17 Continuous use may be established as to heavily or
lightly used roads, as long as the use is as frequent as the
public finds it convenient or necessary. We emphasize here,
however, that the action necessary by the landowner to establish
an interruption in public use does not vary depending on the
level of public use. An overt act intended and reasonably
calculated to interrupt public use restarts the statutory period,
and the effectiveness of such act is not tied to the level of
public use. In other words, an act by a landowner sufficient to
interrupt public use of a road used on a daily basis by the
public is also sufficient to interrupt public use of a road used
on a monthly basis by the public.
¶18 We now apply our newly articulated test to the facts of
the case at hand. The Okelberrys asserted at trial that there
were signs on the roads indicating “No Trespassing,” “Keep Out,”
or “Private,” and that trespassers were at times asked to leave.
Wasatch County conceded that such signs were posted, but argued
that they referred only to property adjoining the roads and not
the roads themselves. While the trial court assumed the
Okelberrys’ assertions to be true for purposes of its analysis,
it made no actual findings as to when the signs were posted, what
they appeared to reference, or whether trespassers were asked to
leave. Thus, while it is clear that the posting of the signs
constituted an overt act, it remains a factual question whether
the Okelberrys intended the signs to interrupt public use of the
roads and whether the posting of the signs was reasonably
calculated to do so. Questions also remain as to when the signs
were posted and whether trespassers were asked to leave, and if
so, when and how many.
¶19 The Okelberrys also claimed at trial that the gates
were periodically locked for several days at a time beginning in

11 No. 20070011
the late 1950s. Here again, while the trial court assumed this
claim to be true for purposes of its analysis, it did not make a
factual finding on this issue. The locking of gates for several
days at a time constitutes an overt act intended to interrupt
public use and reasonably calculated to do so. But factual
questions remain as to whether and when such an event or events
occurred. We therefore remand this case for the trial court to
make these factual determinations.
CONCLUSION
¶20 Utah Code section 72-5-104(1) provides that “[a]
highway is dedicated and abandoned to the use of the public when
it has been continuously used as a public thoroughfare for a
period of ten years.” We hold today that an overt act that is
intended by the property owner to interrupt the use of a road as
a public thoroughfare, and is reasonably calculated to do so, is
an interruption in continuous use sufficient to restart the
running of the ten-year period under this statute. If a party
produces credible evidence of such an interruption, this evidence
will preclude a finding of continuous use. Because the trial
court did not make specific findings of fact regarding the
Okelberrys’ evidence of interruption in the use of the Four Roads
as public thoroughfares, we reverse and remand for further
proceedings consistent with this opinion.
---
¶21 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.