Utah County v. Butler

1 Town of Leeds v. Prisbrey, 2008 UT 11, 179 P.3d 737;
Wasatch County v. Okelberry, 2008 UT 10, 179 P.3d 768.
2008 UT 12
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah County and State of Utah, 	No. 20070009
by and through its Department
of Natural Resources and
Division of Wildlife Resources,
Plaintiffs and Respondents,
v.
Randy Butler, Donna Butler,
Blaine Evans, Linda Evans,
Margaret Condley, Elizabeth 	F I L E D
Condley, and John Does 1-15,
Defendants and Petitioners. 	February 12, 2008
---
Fourth District, Provo Dep’t
The Honorable James R. Taylor
No. 000403372
Attorneys: 	M. Cort Griffin, Robert J. Moore, Provo, for
plaintiff Utah County
Mark L. Shurtleff, Att’y Gen., Martin B. Bushman,
Asst. Att’y Gen., Salt Lake City, for plaintiff State
of Utah
Scott L. Wiggins, Salt Lake City, for defendants
---
On Certiorari to the Utah Court of Appeals
DURRANT, Justice:
INTRODUCTION
¶1 	In this and two companion cases that we also decide
today, 1 we consider the operation and application of Utah Code
section 72-5-104(1) (the “Dedication Statute”). 	The Dedication

2 Utah Code Ann. § 72-5-104(1) (2001).
3 Utah County v. Butler, 2006 UT App 444, ¶ 24, 147 P.3d
963.
4 An earlier version of this statute was in effect at the
time Utah County claims the Road was dedicated and abandoned to
the use of the public. 	See Utah Code Ann. § 27-12-89 (1995). 	A
(continued...)
No. 20070009 	2
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.” 2 	We granted
certiorari in this case to review three issues related to the
Dedication Statute: 	(1) whether the court of appeals erred in
evaluating the trial court’s determination that the public had
continuously used the road at issue in this case according to the
requirements of the Dedication Statute; (2) whether trespassing
may constitute a public use pursuant to the Dedication Statute;
and (3) whether the court of appeals erred in reviewing the trial
court’s failure to designate a specific ten-year period of
continuous use and, if so, whether that failure constituted
reversible error. 	We affirm the decision of the court of
appeals, which, like the trial court, found the road at issue to
be dedicated and abandoned as a public highway. 3
¶2 	We also granted certiorari to determine whether the
court of appeals erred in its application of Utah Code section
72-7-104(4) to the facts of this case. 	As to this issue, we
reverse the decision of the court of appeals.
BACKGROUND
¶3 	Bennie Creek Road (the “Road”) begins in Birdseye,
Utah, at a junction with U.S. Highway 89 and proceeds
approximately two and one-half miles west until it reaches the
edge of the Uinta National Forest. 	The Road continues into the
forest, providing access to hiking trails, camping areas, and the
Nebo Loop Road. 	Before entering the forest, the Road crosses
real property owned by Randy Butler, Donna Butler, Blaine Evans,
and Linda Evans (collectively, the “Butlers”).
¶4 	In 1996, Mr. Butler erected a locked gate across the
Road. 	The following year, Utah County served Mr. Butler with
notices instructing him to remove the gate. 	Mr. Butler did not
remove the gate and Utah County thereafter filed this action to
have the Road declared dedicated and abandoned to public use
pursuant to Utah Code section 72-5-104(1). 4 	Utah County also

4 (...continued)
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. 20070009
sought an order enjoining the Butlers from blocking access to the
Road and forcing them to remove the gate and requested monetary
relief from the Butlers of ten dollars a day for each day the
Road remained closed following delivery of the notices pursuant
to Utah Code section 72-7-104(4).
¶5 	During an eight-day bench trial, the trial court heard
testimony from over sixty witnesses--including previous and
current owners of the relevant property, various recreational
users of the Road, Utah Division of Wildlife Resources employees,
Uinta National Forest workers, and county employees assigned to
maintain the Road--regarding the use and condition of the Road
from 1925 to the present time. 	These witnesses provided
conflicting testimony as to the presence and purpose of gates on
the Road, the placement of “No Trespassing” signs, and the
necessity of obtaining permission of a landowner to use the Road.
¶6 	In its Findings of Fact, the trial court cited the
conflicting testimony regarding locked gates. 	The gates, the
court found, were used for controlling livestock “and not
intended to restrict travel on the Road.” 	The court also found
that the signs and painted posts along the Road were positioned
such that “they prohibited travel off of the Road, not on the
Road.” 	And with respect to other evidence that travel on the
Road was restricted, the court found that winter snow impeded all
travel on the Road, and that springs or bogs, which flooded the
Road in wet years, impeded travel by vehicle but not by foot,
horseback, or wagon. 	The court also found that, although there
was testimony that the Road was at times impassable because it
was used to deliver irrigation water, “[a] clear and convincing
majority of witnesses . . . traveled the Road unrestricted by
irrigation practices.” 	Based on these findings, the trial court
concluded that the Road “has been dedicated and abandoned to the
use of the public because it has been continuously used as a
public thoroughfare for a period of ten years” and ordered the
Butlers to remove “anything that blocks, locks, or otherwise
interferes with public access across the Road.”
¶7 	Although the trial court otherwise found in favor of
Utah County, the court denied Utah County’s request for damages.
The court explained in its Memorandum Decision that “for some of
the time since construction of the metal Butler gate the [R]oad

5 Utah County v. Butler, 2006 UT App 444, 147 P.3d 963.
6 D.J. Inv. Group, L.L.C. v. DAE/Westbrook, L.L.C., 2006 UT
62, ¶ 10, 147 P.3d 414.
7 State v. Dean, 2004 UT 63, ¶ 7, 95 P.3d 276.
8 Wasatch County v. Okelberry, 2008 UT 10, ¶ 8, 179 P.3d
768.
9 Heber City Corp. v. Simpson, 942 P.2d 307, 309-10 (Utah
1997).
No. 20070009 	4
has been obstructed and for some of the time it has not.”
Because the county did not present evidence “to clarify how many
of the intervening 2,561 days were days when the [R]oad was
obstructed and how many were not,” the court chose not to impose
a monetary penalty on the Butlers.
¶8 	The Butlers appealed the court’s decision regarding the
public dedication of the Road, and Utah County cross-appealed the
court’s failure to award damages. 	The court of appeals affirmed
the trial court’s conclusion that the Road has been dedicated and
abandoned to public use but reversed its damages determination. 5
We granted certiorari on three issues relating to the court of
appeals’ application of the Dedication Statute and one issue
regarding the award of damages.
STANDARDS OF REVIEW
¶9 	“On certiorari, we review for correctness the decision
of the court of appeals, not the decision of the district
court.” 6 	“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.” 7 	As to the
Dedication Statute, “[a]n appellate court reviews a trial court’s
legal interpretation of the Dedication Statute for correctness
and its factual findings for clear error.” 8 	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. 9 	An appellate court therefore 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 significant discretion in its application

10 Id. at 310.
11 See Sill v. Hart, 2007 UT 45, ¶ 5, 162 P.3d 1099.
12 Utah Code Ann. § 72-5-104(1) (2001).
13 Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶
21, 54 P.3d 1177.
14 Wayment v. Howard, 2006 UT 56, ¶ 9, 144 P.3d 1147.
5 	No. 20070009
of the facts to the statute.” 10 	The question of whether the
court of appeals properly awarded damages under Utah Code section
72-7-104(4) is an issue of statutory interpretation, a question
of law that we review for correctness. 11
ANALYSIS
¶10 	We granted certiorari to review three issues concerning
the Dedication Statute, which reads 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 period of ten
years.” 12 	The three issues relate to each of the three elements
of this statute--“continuous use,” “a public thoroughfare,” and
“a period of ten years”--which we review, in that order, below.
Following our review of the elements of the Dedication Statute,
we address the final issue on which we granted certiorari, which
concerns the damages to which a party claiming dedication is
entitled under Utah Code section 72-7-104(4).
I. 	CONTINUOUS USE
¶11 	We first consider the court of appeals’ affirmation of
the trial court’s finding that the Road was continuously used as
a public thoroughfare. 	The Butlers argue that the trial court
failed to consider a variety of circumstances that interrupted
the public’s continuous use of the road. 	We require parties
challenging factual findings of a lower court to “first marshal
all the evidence in support of the finding and then demonstrate
that the evidence is legally insufficient to support the finding
even when viewing it in a light most favorable to the court
below.” 13 	To accomplish this, a party “may not simply cite to
the evidence which supports his or her position and hope to
prevail.” 14 	Rather, a party should “construct the evidence
supporting the adversary’s position, and then ‘ferret out a fatal

15 Martinez v. Media-Paymaster Plus/Church of Jesus Christ
of Latter-day Saints, 2007 UT 42, ¶ 17, 164 P.3d 384 (quoting
West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah
1991)).
16 Id. ¶ 19.
17 Id. ¶ 20.
18 Town of Leeds v. Prisbrey, 2008 UT 12, 179 P.3d 737;
Wasatch County v. Okelberry, 2008 UT 10, 179 P.3d 768.
19 See Wasatch County, 2008 UT 10, ¶ 15.
No. 20070009 	6
flaw in the evidence.’” 15 	“[P]arties that fail to marshal the
evidence do so at the risk that the reviewing court will decline
. . . to review the trial court’s factual findings.” 16
Nevertheless, we “retain[] discretion to consider independently
the whole record and determine if the decision below has adequate
factual support.” 17
¶12 	In this case, the Butlers completely failed to marshal
the evidence in support of the trial court’s conclusion that the
Road was continuously used as a public thoroughfare. 	In their
brief, the Butlers simply asserted that “[t]here is no evidence
to marshal in support of the district court’s finding.” 	This
assertion is patently false, as there is abundant evidence in the
record supporting the trial court’s finding. 	Moreover, the trial
court repeatedly referenced such evidence in its written
decision. 	Because the Butlers’ failure to marshal is
particularly egregious, we would ordinarily decline to review the
factual findings of the lower court under these circumstances.
But because we decide this case in tandem with two companion
cases that also involve the Dedication Statute, 18 one of which
sets forth the standard for ascertaining whether a road has been
“continuously used,” 19 we choose to exercise our discretion and
review the merits of the Butlers’ arguments regarding continuous
use in order to elucidate this standard by applying it to
specific facts.
¶13 	The Butlers argue that the Road was not continuously
used as a public thoroughfare because travel on the Road was
interrupted by naturally occurring weather conditions, irrigation
water, and locked gates. 	Additionally, the Butlers argue that
use of the Road was not continuous because there were “No
Trespassing” signs along the Road and the landowners, on
occasion, called the county sheriff to have trespassers removed
from their property. 	As we explain below, none of these

20 Boyer v. Clark, 326 P.2d 107, 109 (Utah 1958).
21 Campbell v. Box Elder County, 962 P.2d 806, 809 (Utah Ct.
App. 1998) (emphasis omitted) (quoting Richards v. Pines Ranch,
Inc., 559 P.2d 948, 949 (Utah 1977)).
22 Wasatch County, 2008 UT 10, ¶ 15.
23 Id.
7 	No. 20070009
occurrences amounted to an interruption in the public’s
continuous use of the Road for purposes of the Dedication
Statute.
¶14 	A road is continuously used as a public thoroughfare
when “the public . . . [makes] a continuous and uninterrupted
use” of the road “as often as they [find] it convenient or
necessary.” 20 	This “‘use may be continuous though not constant[]
. . . provided it [occurs] as often as the claimant [has]
occasion or [chooses] to pass. [. . .] 	Mere intermission is not
interruption.’” 21 	In a companion case that we decide today, we
hold that “[a]n 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.” 22 	Credible evidence of such an
interruption precludes a finding of continuous use. 23
¶15 	As to the Road, groundwater that flooded the Road in
the spring and snow that covered the Road in the winter did not
interrupt the Road’s continuous use for purposes of the
Dedication Statute. 	These conditions, natural in origin, were
not overt acts undertaken by the Road’s owner.
¶16 	Irrigation water that flooded the Road and gates along
the Road, even though the result of overt acts, also did not
interrupt continuous use of the Road for purposes of the
Dedication Statute. 	The Road was periodically used to deliver
irrigation water to property along the Road, but the record
includes no evidence that the Road was flooded by the Road owner
with the intent to interrupt the Road’s continuous use as a
public thoroughfare rather than to simply deliver irrigation
water. 	Thus, because the overt acts undertaken to effect
irrigation were not undertaken with the requisite intent of
interrupting continuous use, they do not constitute an
interruption sufficient to restart the running of the Dedication
Statute’s ten-year period. 	Similarly, the trial court found that
gates along the Road were erected, and occasionally locked, for

24 See id. ¶ 19 (“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.”).
25 See Utah County v. Butler, 2006 UT App 444, ¶ 15, 147
P.3d 963.
No. 20070009 	8
the purpose of controlling livestock. 	It explicitly found that
the gates were not meant to restrict public travel on the Road.
Although gates can, under appropriate circumstances, constitute
an interruption for purposes of the Dedication Statute, 24 the
gates on the Road were not erected or locked with the requisite
intent and therefore did not interrupt the public’s continuous
use of the Road.
¶17 	The Butlers’ arguments that removing trespassers from
and posting “No Trespassing” signs alongside the Road interrupted
the Road’s continuous use as a public thoroughfare are likewise
without merit. 	The only evidence regarding the removal of
trespassers relevant to the time period during which the trial
court found the Road to have been continuously used was the
testimony of one witness who was “hunting well off the Road” at
the time he was asked to leave. 	Because this individual was not
removed from the Road itself, the action of the property owner
does not constitute an overt act intended and reasonably
calculated to interrupt continuous use of the Road as a public
thoroughfare. 	Likewise, the trial court found that “No
Trespassing” signs prohibited travel off of the Road, but not on
the Road. 	Signs posted against travel on property adjacent to
the Road do not constitute an interruption of travel on the Road
itself. 	Thus, because none of the actions cited by the Butlers
amount to an overt act intended and reasonably calculated to
interrupt the use of the Road as a public thoroughfare, we affirm
the court of appeals’ conclusion that the trial court did not err
in determining that the Road was continuously used as a public
thoroughfare for purposes of the Dedication Statute. 25
II. 	PUBLIC THOROUGHFARE
¶18 	We next consider whether trespassing may constitute a
“public” use pursuant to the Dedication Statute. 	The Butlers
argue that some trespassers should not be considered members of
the public for purposes of determining whether a road was
continuously used as a public thoroughfare. 	Specifically, they
contend that trespassers who knowingly use a private road without

26 Utah Code section 76-6-206 defines criminal trespass.
The relevant subsection reads as follows:
(2) A person is guilty of criminal
trespass if . . .
. . .
(b) knowing his entry or presence
is unlawful, he enters or remains on
property as to which notice against
entering is given by:
(i) personal communication to
the actor by the owner or someone
with apparent authority to act for
the owner;
(ii) fencing or other
enclosure obviously designed to
exclude intruders; or
(iii) posting of signs
reasonably likely to come to the
attention of intruders . . . .
Utah Code Ann. § 76-6-206(2) (2003 & Supp. 2007).
27 Utah County v. Butler, 2006 UT App 444, ¶ 11, 147 P.3d
963.
28 Draper City v. Estate of Bernardo, 888 P.2d 1097, 1099
(Utah 1995).
9 	No. 20070009
permission--in other words, criminal trespassers 26 --are not
members of the public for purposes of the Dedication Statute.
They contend that only persons who use a road without knowledge
of its private status--individuals they call “good faith”
trespassers--are members of the public capable of continuously
using a road as a public thoroughfare. 	The court of appeals
rejected the Butlers’ arguments and “agree[d] with the trial
court that trespassers are members of the ‘public’ for purposes
of determining whether the Dedication Statute has been
satisfied.” 27
¶19 	We have explained that certain persons are not members
of the public for purposes of the Dedication Statute.
Individuals with a private right to use a road, such as adjoining
property owners who “may have documentary or prescriptive rights
to use the road,” are not members of the public, nor are those
who have been given permission to use a road. 28 	But other than
these two classes of individuals, we have not otherwise defined
who constitutes the public for purposes of the Dedication
Statute. 	To determine whether trespassers constitute members of
the public for purposes of the statute, we must ascertain the

29 See Duke v. Graham, 2007 UT 31, ¶ 16, 158 P.3d 540.
30 Id. (quoting State v. Martinez, 2002 UT 80, ¶ 8, 52 P.3d
1276).
31 Merriam-Webster’s Collegiate Dictionary 1005 (11th ed.
2003).
32 See Utah County, 2006 UT App 444, ¶ 11.
No. 20070009 	10
intent of the legislature. 29 	This we do by evaluating “the ‘best
evidence’ of legislative intent, namely, ‘the plain language of
the statute itself.’” 30
¶20 	Here, the Dedication Statute does not reference or
imply the character of the use required of the user, only that
users be members of the “public.” 	The “public” is commonly
understood to be “the people as a whole.” 31 	The plain language
of the statute does not exclude trespassers, including criminal
trespassers, from the class of persons who constitute the
“public.” 	All trespassers are therefore “public” users capable
of continuously using a road for purposes of dedication. 	We
affirm the court of appeals’ conclusion in this regard. 32
¶21 	Although we conclude that trespassers can establish a
public highway, we stress that a road owner can preclude a
finding of continuous use established by trespassers by providing
credible evidence of an overt act intended and reasonably
calculated to interrupt the use of the road as a public
thoroughfare. 	For example, if a road owner erects and locks for
several days at a time a gate across a road for the purpose of
blocking public use, this act will restart the ten-year period
and preclude a finding of continuous use even if someone jumps
the gate or removes the lock and criminally trespasses on the
road. 	Proper action by a road owner can interrupt continuous use
by the public regardless of whether the persons using the road
are criminal or “good faith” trespassers.
III. 	PERIOD OF TEN YEARS
¶22 	With respect to the third element of the Dedication
Statue, the ten-year period, the Butlers argue that the trial
court failed to identify a ten-year period of time in which the
Road was continuously used as a public thoroughfare. 	They
suggest that the trial court’s finding that the Road was
continuously used as a public thoroughfare from approximately
1925 to 1980--a period of fifty-five years--is legally inadequate

33 Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah
1997) (emphasis added).
34 Utah County v. Butler, 2006 UT App 444, ¶ 16, 147 P.3d
963.
35 Utah Code Ann. § 72-7-104(1) (2001).
36 Id. § 72-7-104(3).
37 Id. § 72-7-104(4).
11 	No. 20070009
because the court failed to “specifically pinpoint” one ten-year
period during those years.
¶23 	We have explained that, under the Dedication Statute,
“[c]ontinuous use as a public thoroughfare must occur for at
least ten years.” 33 	The court of appeals concluded that this
“permits a finding of public dedication based on a time period
greater than ten years.” 34 	We agree. 	Here, the trial court’s
finding of fifty-five years of continuous use is more than
adequate to support its determination that the Road was abandoned
and dedicated to the public under the Dedication Statute. 	Thus,
the court of appeals correctly affirmed the trial court’s finding
that the Road was continuously used as a public thoroughfare for
a period of ten years.
IV. 	DAMAGES
¶24 	Finally, we consider whether the court of appeals erred
in its application of Utah Code section 72-7-104(4) to the facts
of this case. 	Subsection (1) of this code section provides that
“the highway authority having jurisdiction over the right-of-way
may” remove from the right-of-way of any highway any structure
installed by any person or “give written notice to the
person . . . to remove the installation from the right-of-way.” 35
And under subsection (3), if the highway authority gives notice
and “the installation is not removed within ten days after the
notice is complete, the highway authority may remove the
installation at the expense of the person.” 36 	Subsection (4),
which is the focus of our review, provides that the “highway
authority may recover: 	(a) the costs and expenses incurred in
removing the installation, serving notice, and the costs of a
lawsuit, if any; and (b) $10 for each day the installation
remained within the right-of-way after notice was complete.” 37
¶25 	In this case, Utah County served the Butlers with
notice that the gate erected across the Road by Mr. Butler should

38 Utah County v. Butler, 2006 UT App 444, ¶ 21, 147 P.3d
963.
39 Id. 	The court of appeals based this conclusion on
section 72-7-104(5), which reads as follows:
(5) 	(a) If the person . . . refuses to
remove [the installation] . . . , the highway
authority may bring an action to abate the
installation as a public nuisance.
(b) If the highway authority is
granted a judgment, the highway authority may
recover the costs of having the public
nuisance abated as provided in Subsection
(4).
40 Utah County, 2006 UT App 444, ¶ 22 (quoting Utah Code
Ann. § 72-7-104(1)).
No. 20070009 	12
be removed, but the Butlers did not remove the gate. 	As a
result, Utah County asked the trial court for statutory damages
of ten dollars for each day the gate remained across the Road.
The court denied Utah County’s request, citing two
considerations. 	First, the court noted that Utah County created
and placed a sign on the gate indicating that travel was allowed
past the gate, but admonishing travelers to close the gate and
stay on the Road until they reach the national forest. 	The court
explained that “there have historically been gates across the
Road for purposes unrelated to obstruction of traffic. 	An
unlocked gate is consistent with this pattern and would not be
considered to violate the right-of-way” Utah County has to the
Road. 	Second, the court stated that Utah County, “as the moving
party in seeking to obtain the penalty, had the burden of proving
specific evidence of the number of days the [Butlers] have been
in violation.” 	This, the court said, Utah County failed to do.
¶26 	The court of appeals reversed the trial court,
concluding that the trial court did not have discretion to deny
statutory damages to Utah County. 38 	According to the court of
appeals, the highway authority is entitled to the remedies in
section 72-7-104(4) if it is granted a judgment in an action
contesting the removal of an installation on a right-of-way. 39
In addition, the court explained that the gate across the Road
“clearly falls under the proscribed structures ‘of any kind or
character’ regardless of whether it was locked.” 40 	Thus, the
court of appeals suggested that the trial court’s decision not to
award damages was inappropriately based on the lack of evidence
regarding whether the gate was locked after the Butlers received

41 Id.
42 Id.
43 Utah Code Ann. § 72-7-104(1)-(5).
44 See, e.g., Grant v. Utah State Land Bd., 485 P.2d 1035,
1036-37 (Utah 1971) (“[I]f the legislature had intended an
applicant [for reinstatement of certain contracts of purchase of
State land] to have an absolute right of reinstatement, instead
of saying that an applicant ‘may have his contract reinstated,’
it could easily have used the word ‘shall’ or ‘must,’ and thus
have rendered a mandatory meaning clear.”).
45 See State v. Wallace, 2006 UT 86, ¶¶ 10-12, 150 P.3d 540
(interpreting the term “may” as permissive because the
legislature replaced “shall” with “may” in the relevant statute
(continued...)
13 	No. 20070009
notice from Utah County. 41 	The court of appeals concluded that
“[b]ecause Utah County made a proper showing that the gate
remained in place after notice was completed, the trial court
should have awarded section 72-7-104(4) damages.” 42
¶27 	The Butlers argue that the word “may,” as used
throughout section 72-7-104, is a permissive term and gives the
trial court discretion to award damages. 	In contrast, Utah
County argues that the word allows the highway authority to elect
its remedy, which must then be granted by the court. 	We believe
the word “may” as used throughout section 72-7-104 goes to the
highway authority’s discretion with respect to the selection of a
remedy. 	That is, the statute gives the highway authority
permission, under subsection (1), to remove an installation or
give notice to the offending person to remove it; under
subsection (3), to remove the installation at the expense of the
person if, after giving notice, the person fails to remove it;
under subsection (4), to recover the costs of removing the
installation, the costs of a lawsuit, and ten dollars a day; and,
under subsection (5), to bring an action to abate the
installation as a public nuisance if the person refuses to remove
or permit its removal. 43 	Importantly, however, the statute does
not suggest that the highway authority’s chosen remedy must be
granted by a court. 	Had the Legislature wished to mandate the
award of damages or any of the other remedies in this section, it
could have used the word “shall.” 44 	In the absence of such
explicit legislative intent, we deem the award of ten dollars a
day in damages, if elected by the highway authority, to be in the
court’s discretion. 45

45 (...continued)
and explaining that “in the absence of any clear legislative
indication to the contrary, we take the Legislature at its
word”).
No. 20070009 	14
¶28 	In sum, the word “may” in section 72-7-104(4) does give
Utah County permission to seek ten dollars a day in damages for
every day the Butlers’ gate remained in place on the Road or to
seek an alternative remedy, but it does not mandate that the
trial court award those damages if sought. 	Because the grounds
upon which the trial court based its decision not to award
damages--the sign placed on the gate by Utah County and the
absence of evidence regarding when the gate was locked--are
reasonable, the trial court did not abuse its discretion in
declining to award Utah County damages under Utah Code section
72-7-104(4). 	We therefore reverse the court of appeals’
determination in this regard and affirm the decision of the trial
court.
CONCLUSION
¶29 	We uphold the court of appeals’ affirmation of the
trial court’s conclusion that Bennie Creek Road was abandoned and
dedicated to public use because all three elements of the
Dedication Statute were satisfied. 	First, we affirm the trial
court’s finding that Utah County established by clear and
convincing evidence that the Road was continuously used as a
public thoroughfare. 	The Butlers introduced no credible evidence
of an overt act or acts intended and reasonably calculated to
interrupt use of the road as a public thoroughfare--the only
interruption sufficient to restart the running of the Dedication
Statute’s ten-year period and preclude a finding of continuous
use. 	Second, we hold that trespassers are public users capable
of establishing continuous use under the Dedication Statute and
thus were properly considered by the trial court in its
application of the Dedication Statute. 	Third, we conclude that
the trial court’s finding of a fifty-five year period of
continuous use as a public thoroughfare satisfied the Dedication
Statute’s requirement that such use be made for a period of ten
years. 	Finally, we reverse the court of appeals’ conclusion that
Utah County is entitled to monetary damages under Utah Code
section 72-7-104(4) because the statute permits the election of
such remedy by a highway authority, but does not mandate that the
court award it. 	We conclude that the trial court did not abuse
its discretion in electing not to award damages to Utah County
under this statute. 	Affirmed in part and reversed in part.

15 	No. 20070009
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¶30 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.