Opinion
Case No. 20040948-CA.
Filed January 12, 2006. (Not For Official Publication).
Appeal from the Fourth District, Provo Department, 020405580, The Honorable Gary D. Stott.
Phillip E. Lowry, Provo, for Appellants.
M. Dayle Jeffs, Provo, for Appellees.
Before Judges Billings, Orme, and Thorne.
MEMORANDUM DECISION
Dean and Donna Hall and David Gashler (collectively, the Halls) appeal from a decision of the trial court granting summary judgment in favor of Robert and Janice Peay (the Peays). The Halls present three arguments on appeal: (1) the trial court incorrectly ruled that the Peays' grant of permission to Norman Smith and his family to use the roadway also constituted permission to the Halls; (2) the trial court erred in finding that the Halls' use of the roadway was interrupted regularly; and (3) the trial court erred in denying the Halls a new trial based on newly discovered evidence. We affirm.
"Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Alvey Dev. Corp. v. Mackelprang, 2002 UT App 220, ¶ 8, 51 P.3d 45 (alteration omitted) (citation and quotations omitted). "In reviewing a grant of summary judgment, we view the facts in the light most favorable to the losing party. Further, we review the trial court's summary judgment decision for correctness." Green v. Stansfield, 886 P.2d 117, 119 (Utah Ct.App. 1994) (citation omitted).
First, the Halls argue that they fulfilled the requirements for establishing a prescriptive easement and that the trial court erred in determining that their use of the roadway was not adverse. "The requirements for establishing a prescriptive easement are open, notorious, adverse and continuous use of property for a period of twenty years." Homer v. Smith, 866 P.2d 622, 626 (Utah Ct.App. 1993); see also Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984); Jensen v. Brown, 639 P.2d 150, 152 (Utah 1981). The trial court correctly concluded that there was no adverse use where the Peays' grant of permission to Norman Smith's family to use the road also constituted permission to Donna Hall — Norman Smith's daughter — and her family. The Halls assert that it is erroneous to infer "permission by chromosome," arguing that permission to an owner is not permission to a successor in title, even where the owner and successor are related. This argument is flawed, however, because a use that is initially permissive remains permissive unless the predecessor in interest "renounces openly his claim under the license." Lunt v. Kitchens, 123 Utah 488, 260 P.2d 535, 537 (1953).
"An antagonistic or adverse use of a way cannot spring from a permissive use. . . . It cannot be adverse when it rests upon a license or mere neighborly accommodation." Jensen v. Gerrard, 85 Utah 481, 39 P.2d 1070, 1073 (1935). Thus, where a use begins as permissive "it is incumbent upon the party asserting that it has afterward become adverse to show at what point this occurred." Lunt, 260 P.2d at 539; see also Green, 886 P.2d at 120-21; Savage v. Nielsen, 114 Utah 22, 197 P.2d 117, 123-24 (1948) (applying Jensen to similar facts). For example, inGreen, property owners seeking a prescriptive easement argued that a permissive use became adverse when the original owner died "because ownership of the property automatically transferred to his heirs, who never granted [the claimants] permission to use the ditch." 886 P.2d at 120. Despite the transfer, this court determined that "[t]he proponent of a change from permissive to adverse use must assert such a right to the [new] owner. Without such an assertion, adverse use cannot arise." Id. at 121.
In the present case, there was uncontroverted evidence that the Peays had given permission to the Smiths to use the roadway. Norman Smith eventually transferred his property to his daughter Donna Hall and her husband. The Halls used the roadway with the implied permission of the Peays, both before and after the transfer of title. Nothing about the passage of the property from father to daughter made the use of the Peays' roadway adverse, and the Halls never asserted how or when this permissive use of the roadway became adverse. The Halls have clearly not shown that their use ever became adverse, and summary judgment in favor of the Peays was appropriate.
Because we find that the use was not adverse, and therefore no easement by prescription existed, we do not address the Halls' argument regarding the interruption of land use.
The trial court also correctly held that a new trial based on newly discovered evidence was not warranted.
To succeed on such a motion, a party must establish: (1) the existence of newly discovered evidence which is material and competent; (2) that by due diligence the evidence could not have been discovered and produced before trial; and (3) that the evidence is not merely cumulative or incidental, but is substantial enough that with the evidence there is a reasonable likelihood of a different result.
ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 253 (Utah Ct.App. 1997). The Halls claim that after the hearing they discovered that a 1992 deed demonstrated that the Peays did not own the road when the Peays granted permission to the Smiths.
The Halls' argument that this evidence entitled them to a new trial fails because the evidence is not newly discovered. Indeed, the Halls attached a copy of the 1992 deed to their initial discovery disclosures. The Halls, by due diligence, could have discovered which property was included in the deed and presented this evidence to the court at the hearing. Thus, the evidence does not qualify as newly discovered evidence for new trial purposes, and the trial court did not commit error in refusing to grant a new trial.
The judgment of the trial court is affirmed.
WE CONCUR: Judith M. Billings, Judge and Gregory K. Orme, Judge.