S & W Hunting Ranch v. Fautin

550 P.3d 999

2024 UT App 60

S AND W HUNTING RANCH, LLC, Appellee,

v.Dee Lynn FAUTIN, Wade Fautin, Cory Fautin, and Moo Dee Ranch, LLC, Appellants.

No. 20220432-CA

Court of Appeals of Utah.

Filed April 25, 2024

Sixth District Court, Junction Department, The Honorable Brody Keisel, No. 160600008

Lewis P. Reece, St George, Jeffrey R. Miles, and Devon J. Herrmann, St George, Attorneys for Appellants

Ben W. Lieberman, Attorney for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

MORTENSEN, Judge:

¶1 Deep in the Tushar Mountains, within Fish Lake National Forest, a dirt road meanders in a southwesterly direction across property that S and W Hunting Ranch, LLC (S&W) purchased in 2016. Not long after the purchase, S&W shut off access to the property, including to a small group of folks who claimed to have been using the dirt road for decades—a father, Dee Lynn Fautin; his two sons, Wade Fautin and Cory Fautin; and their entity, Moo Dee Ranch, LLC (collectively, Fautins; individually by given name). S&W filed an action to quiet title and enforce its right of exclusion. The Fautins countersued on a number of theories, including that the road had become a public road pursuant to Utah’s dedication statute (Dedication Statute), see Utah Code § 72-5-104, or, alternatively, that the Fautins had obtained a prescriptive easement to use the road. After a multi-day bench trial, the district court rejected the Fautins’ claims and quieted title in S&Ws favor. The Fautins appeal, raising several claims, all of which we reject.

BACKGROUND

¶2 The Fautins’ appeal raises multiple issues surrounding the interpretation of Utah law and the district court’s application of the law to the established facts. In their appeal, the Fautins do not challenge any of the district court’s factual findings as clearly erroneous. See Ashby v. State, 2023 UT 19, ¶ 77, 535 P.3d 828 ("We defer to the factual findings of the [district] court unless the findings are clearly erroneous." (cleaned up)). Accordingly, what follows is a factual recitation taken, as relevant for the purposes of the appeal, from the district court’s findings. The statements in quotes are therefore quoting the district court’s findings.

[1–3] ¶3 This case involves property (the Property) that S&W purchased via a special warranty deed in June 2016. The Property consists of a series of patented mining claims in Piute County, Utah, just west of the town of Marysvale.¹ These mining claims date back over a century; most of them were established in 1915, with one going back to 1889. Prior to S&W’s purchase of the Property, it belonged to the Magnus family from 1967 to 2016, which had acquired the Property through a United States marshal’s deed that arose from litigation between a Magnus family member and Lucy DeLuke, along with other parties.

¶4 Shortly after the purchase, S&W filed a complaint seeking a declaratory judgment to quiet title to the Property, including a segment of a road (the Road) that passes through the Property. The Fautins filed a counterclaim seeking a declaratory judgment that all members of the public, including themselves, enjoyed the right to use the Road under the Dedication Statute. See Utah Code § 72-5-104(2) ("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 10 years."). In addition, and in the alternative, the Fautins sought declaratory judgment that they had a prescriptive easement to use the Road, even if the general public did not.

¶5 Central to the present dispute was the condition, location, and historical use of the Road, which was constructed to link the now-abandoned mining operations and which is currently used to access the Property and surrounding area. It meanders through the Property, beginning in the northeast portion and traversing it in a generally westerly direction. In several locations, the Road exits and then re-enters the Property. "Significant testimony was presented at trial attempting to establish the origin and history of the … Road," including "various surveys and aerial photographs with competing expert testimony" and witness testimony, which we summarize here from the district court’s findings of fact.

Historical Evidence

¶6 A 1973 aerial photograph provided the "clearest representation of the … Road as it presently exists." The court described the Road as beginning in the upper right corner of the Property as depicted in the photograph, having a number of switchbacks, and looping back up into the tree line of the Property. With this present route of the Road established, the court received evidence of the Road as it had existed over the years.

¶7 An 1897 map of the area showed several mines with "a line that [continued] in a general eastward direction that could represent a road or trail."

¶8 A 1910 map depicted the Property, surrounding areas, and a trail purported to be part of the Road. Along with the map itself, competing expert witness testimony was offered about the trail as depicted therein. The map showed various mining claims on the Property and featured a dotted line labeled "Copper Belt Trail." However, the dotted line was "quite difficult to follow," and "annotations on the map [made] it somewhat unclear if the dots" were "meant to be a continuation of the trail or another unidentified or unexplained mark on the map." The 1910 map did "not show specific characteristics of the … Road in its present form, such as the switchbacks," a "sharp curvature," and "what happens to the [Road] outside of the Property."

¶9 A 1937 map showed "a trail existing in the area of the Property." But the labeling on the map was unclear about the identification of the trail in question.

¶10 A 1943 photograph, taken at a slightly different angle, was of lower quality and more pixelated than the other photographs in evidence. While this photograph showed "white lines, presumably a road or trail," other elements of the Road, such as the switchbacks, were not clearly evident in it.

¶11 A 1953 photograph shows the Road "in substantially the same location" as depicted in the 1973 photograph and as it currently exists.

¶12 The Fautins’ expert stated that the 1910 map depicted the "general location" of the Road and opined that "other than improvements such as switchbacks," the map showed the "same road" that had historically been used to access the mining camps. The Fautins’ expert also testified the improvements to the Road were "likely" made to address safety and grade concerns. S&W’s expert noted that there were "several distortions" on the 1910 map attributable to "printing or copying errors."

¶13 In addition to the maps, photographs, and expert testimony, two fact witnesses testified about the history of the Road. Witness 1, who was born in 1934, recollected that the Road was built between 1946 and 1948, but he clarified that he was uncertain if the Road was actually built during those years or if it was just improved during that time.² Witness 2—a former archeologist with the National Forest Service—provided testimony about the use of the Property during the mining days in the late nineteenth century, but he "did not provide any testimony about the existence of the … Road prior to 1900 or otherwise."

¶14 Considering this historical evidence, the district court concluded that "[g]iven the various maps and photographs received into evidence, it would be nearly impossible for a fact finder to state that the …. Road has been entirely unchanged over the last 150 years." The court compared the current representation of the Road in the 1973 photograph to earlier sources and stated that the 1897 map did not provide "clear and convincing evidence showing that the … Road existed in a form that is substantially unchanged from its present condition and location." The court further concluded that while the trail depicted in the 1910 map crossed the Property in a "similar direction" as the Road, the court "would be required to make speculations" that the trail depicted in the 1910 map followed "the same course as the … Road presently follows." The court also found that while the Fautins’ expert "provided a thoughtful approach to what he observed" on the 1910 map, his "testimony often required the [c]ourt to infer or use supposition to reach his same conclusions." Thus, the court determined that it could not "find by clear and convincing evidence that the … Road existed in 1910 in a location and condition that is substantially unchanged from its present form." Furthermore, the court determined that the 1937 map was not of any more help than the 1910 map in that it required the court "to speculate" to find that the Road existed in 1937 "in a location and condition that is substantially unchanged from its present form." Accordingly, the court stated that the 1937 map did "not meet the clear and convincing evidence standard." Finally, the court found that the 1943 photograph, while it provided "sufficient landmarks" to allow one to "speculate" that the Road "existed in a similar configuration and location as it does today," did "not rise to the clear and convincing standard."

The Road’s Use and Access

1. Gates

¶15 Testimony and photographic evidence were also offered as proof that two gates limited access to the Road. These two gates are located on either side of an abandoned mine that marks the eastern edge of the Property.

¶16 The first gate, located on National Forest Service land north of the Property, is a chain-link fence featuring three prominent signs warning against trespassing, stating that trespassers would be prosecuted and that security cameras were in use. Dee Lynn Fautin testified that the Fautins put the signs on the gate. He explained that the gate had been there since the 1950s or 1960s and was built by Lucy DeLuke’s employees. Dee Lynn specified that the gate was...