Heber City Corp. v. Simpson

1 The history of the creation of the airport is also
relevant to this case. 	In 1947, Heber City and Wasatch County
(continued...)
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Heber City Corporation, a 	No. 960029
municipal corporation,
Plaintiff and Appellee,
v.
Lowell R. Simpson and
Sandra S. Simpson, husband
and wife, and Jay Simpson and
Glenna R. Simpson, husband and 	F I L E D
wife,
Defendants and Appellants. 	June 17, 1997
---
Fourth District, Wasatch Dep’t
The Honorable Boyd L. Park
Attorneys: 	Harold A. Hintze, Salt Lake City, for plaintiff
Brant H. Wall, Salt Lake City, for defendants
---
ZIMMERMAN, Chief Justice:
Lowell R. Simpson, Sandra S. Simpson, Jay Simpson, and
Glenna R. Simpson (“the Simpsons”) appeal a decision of the
district court finding that a road adjacent to their property and
historically used to access the airport servicing Heber City (the
“Airport Road”) was not a “public highway” as defined by section
27-12-89 of the Utah Code and was therefore properly closed by
Heber City. 	We have jurisdiction to hear this case under section
78-2-2(3)(j) of the Utah Code. 	We reverse and remand.
This controversy arose out of Heber City’s decision in
1992 to extend the length of its municipal airport’s runway and
expand the airport’s protection zone. 1 	To effect this expansion,

1 (...continued)
jointly acquired property for construction of the Heber Airport.
The Simpsons and several other property owners in the area sold
their property to be used for the airport. 	All but one of the
deeds from these property owners expressly conveyed away the
right to access their remaining property from the airport to be
built on the property conveyed by them. 	The one property owner
who did not convey away his rights-of-way across the airport
facility was Mr. Howe. 	His property was landlocked by the
airport, and therefore, he was expressly granted a right-of-way
across the airport from his property to Highway 189.
2 Heber City acquired fee title to a portion of the
Simpsons’ property and an aviation easement over an additional
portion of the Simpsons’ property.
3 For ease of reference, we have appended a map of the
Airport Road.
4 Heber City asserts that it closed the Airport Road at the
insistence of the Federal Aeronautics Administration, which had
determined that there was a risk that planes taking off or
landing would collide with vehicles or pedestrians on the road.
Heber City first closed the Airport Road in December 1988.
However, Wasatch County objected to the road closure. 	Heber City
and the County eventually worked out a compromise in which Heber
City agreed to build a new road to provide access for properties
landlocked by the closure of the Airport Road. 	The road was
closed again in 1989 and has remained closed since that time.
No. 960029 	2
Heber City sought to acquire by condemnation a portion of the
Simpsons’ property. 2 	During the condemnation proceeding, the
public nature of the Airport Road became an issue because the
Simpsons contested the adequacy of the compensation offered by
Heber City. 	Specifically, they asserted that the valuation of
the condemned property interests should take into account the
fact that the property had direct access to Highway 189 via the
Airport Road. 3 	The Simpsons argued that a purchaser of the
condemned portion of their property would have paid a premium for
its access to Highway 189 via a public highway. 	The Airport Road
connected the airport to Highway 189 and ran exclusively over
property owned by Heber City. 	Heber City, however, had
previously acted unilaterally to close the Airport Road. 4 	The
road had to be closed to satisfy the requirements of the
protection zone. 	The Airport Road had also connected the
Simpsons’ condemned property to Highway 189. 	The Simpsons were
not, however, landlocked by the closure because their remaining

3 	No. 960029
property accessed Highway 189 via Daniels Canyon Road, which is a
public highway.
Heber City disputed whether the Airport Road was a
public highway within the definition of section 27-12-89 of the
Code, which requires continuous use as a public thoroughfare for
a period of ten years. 	In effect, the City argued that it could
close the road without compensating for the loss of direct access
it provided because it was a private road owned by the City and
running over City property.
The parties agreed that this critical point of
contention needed to be resolved before the issue of just
compensation could be determined. 	Therefore, they stipulated
that the trial could be bifurcated, separating the issue of
whether the Airport Road was a public highway from the
compensation portion of the condemnation proceedings. 	The
district court entered an order bifurcating these issues.
During the trial concerning the “public” status of the
Airport Road, the Simpsons presented numerous witnesses who
testified that they had used the Airport Road for a variety of
reasons other than for accessing the airport. 	These included
attending shooting events at a gun club on property adjacent to
the road, using it as a kind of “lover’s lane,” accessing
businesses located along the road, riding horses, picnicking, and
watching airplanes take off and land. 	The witnesses testified
that the public used the road for these purposes from the opening
of the road in 1947 until its closure in 1989.
In addition, the Simpsons presented the testimony of
Robert Mathis, who had been the Wasatch County Planner from 1976
through the time of the trial. 	Mr. Mathis testified that when he
became the Wasatch County Planner, the Airport Road was
designated on the county maps as a class B road. 	This
designation means that the road is a public road entitled to
state funds for maintenance and construction. 	See Utah Code Ann.
§ 27-12-22 (defining class B roads); id. § 27-12-127 (creating
fund for class B and C roads); Utah Admin. Code R926-3-4(1)
(establishing permissible uses of class B and C funds).
According to Mr. Mathis, Wasatch County received money from the
state for maintaining this road from sometime prior to 1976
through the time the Airport Road was closed in 1989. 	Mr. Mathis
also testified that the County and Heber City disagreed as to
whether formal proceedings to vacate the road were necessary
before the road could be closed, with Heber City taking the
position that no such proceedings were required. 	See Utah Code
Ann. § 27-12-90 (providing procedure for vacating public road).

5 Although both parties submitted proposed findings of fact
and conclusions of law, the trial court did not adopt either. 	We
therefore treat the trial court’s memorandum decision as its
findings and conclusions supporting its order.
No. 960029 	4
Following the conclusion of the trial on the public
highway issue, the district court issued a memorandum decision
finding that the Airport Road was not a public highway as defined
by section 27-12-89 of the Code. 	In its memorandum decision, the
district court stated:
The Court acknowledges that this is a close
decision. 	There is evidence of public use of
the airport roadway over an extended period
of time. 	However, in the interest of
fairness and justice, it would appear this
was simply the type of roadway that should be
exempted from the technical provisions of
U.C.A. § 27-12-89.
Thereafter, the court entered an order denying the Simpsons the
right to claim compensation for the Airport Road access to
Highway 189. 5 	The Simpsons moved for a new trial, but the
district court denied this motion. 	The parties stipulated that
the court’s order constituted a final judgment under rule 54(b)
of the Utah Rules of Civil Procedure, and the district court
entered an order to that effect. 	The Simpsons appealed to this
court.
We first state the appropriate standard of review.
Here, the district court examined section 27-12-89, made the
requisite findings of fact, and determined that the facts found
by it did not meet the statutory definition of a public highway.
We review this ultimate determination, which is a mixed question
of fact and law, for correctness. 	See State v. Pena, 869 P.2d
932, 936 (Utah 1994). 	Historically, we have given trial courts a
fair degree of latitude in determining the legal consequences
under section 27-12-89 of facts found by the court. 	See, e.g.,
Bonner v. Sudbury, 417 P.2d 646, 648-49 (Utah 1966) (upholding
conclusion that street had been dedicated to public use);
Thompson v. Nelson, 273 P.2d 720, 723 (Utah 1954) (upholding
conclusion that road was not public highway). 	Under section
27-12-89, a road is deemed “dedicated and abandoned” to the
public if it “has been continuously used as a public thoroughfare
for a period of ten years.” 	Granting discretion to the trial
court is appropriate under that section, as its legal
requirements, other than the ten-year requirement, are highly
fact dependent and somewhat amorphous. 	See Pena, 869 P.2d at

6 Though each of the three elements under section 27-12-89
for the establishment of a public highway embodies a logically
distinct requirement that must be satisfied, the elements are so
intertwined that they are not readily susceptible to separate
discussion. 	For example, it is difficult to analyze whether the
“use” has been continuous without determining at the same time
whether that “use” has been as a public thoroughfare.
Recognizing this difficulty, we acknowledge that our attempt to
give separate treatment for each of the three elements will
necessarily involve some overlap between our discussions of the
individual elements under section 27-12-89.
5 	No. 960029
938, 940. 	The issues presented under section 27-12-89,
therefore, do not lend themselves well to close review by this
court, as we would be hard-pressed to establish a coherent and
consistent statement of the law on a fact-intensive, case-by-case
review of trial court rulings. 	See id. 	Therefore, when
reviewing a trial court’s decision regarding whether a public
highway has been established under section 27-12-89, we review
the decision for correctness but grant the court significant
discretion in its application of the facts to the statute.
Finally, we “require[] proof of dedication by clear and
convincing evidence.” 	Draper City v. Estate of Bernardo, 888
P.2d 1097, 1099 (Utah 1995) (citing Thomson v. Condas, 493 P.2d
639, 639 (Utah 1972)).
The Simpsons argue that the Airport Road was a public
highway by virtue of section 27-12-89 of the Utah Code. 	That
section provides, “A highway shall be deemed to have been
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.” 	Utah Code Ann. § 27-12-89. 	Thus, for a road to become a
public highway by dedication under section 27-12-89, there must
be (i) continuous use, (ii) as a public thoroughfare, (iii) for a
period of ten years. 	To prevail on this appeal, the Simpsons
must show that the district court could not correctly conclude
that they failed to establish one or more of these three
elements. 6
We begin our analysis under section 27-12-89 with the
continuous use requirement. 	The witnesses presented at trial
testified to using or observing others using the Airport Road
frequently and without interruption from just after the road’s
construction in 1947 until its closure in 1989. 	For example, Ray
Lloyd, a local resident who had lived in the vicinity of the
Airport Road for over fifty years, testified that he drove on the
Airport Road to attend shooting events at a gun club from 1948 to
1955. 	During that time, no one ever challenged his right to

7 Mr. Lloyd testified that when the airport became
operational in 1955, the gun club was required to relocate.
No. 960029 	6
drive on the road. 7 	He further testified to observing other
people use the road over an extended period of time for various
purposes including riding horses, hauling hay, and necking.
Other witnesses testified to significant commercial
traffic on the Airport Road to various businesses located along
the road. 	The testimony of Jay Simpson reveals substantial
traffic on the Airport Road to a junkyard. 	He testified as
follows:
Q 	Did you ever see or observe a junk yard or
a used car type business or area?
A 	Oh yes.
Q 	Where was that located in reference to the
road that we are talking about?
A 	That was off from the oil, south of the
oil south of Lloyd Brothers Garage or their
yard. 	Approximately, 300 feet and they
probably had 3 or 4 acres of ground that they
had junk cars on. 	Everybody went down there
for a part, it seemed like.
Q 	And over what period of, or how many years
would you say you have observed this type of
use of the road that you have described?
A 	Early years there wasn’t that many, back
in the 40’s and 50’s there wasn’t quite that
many. 	But the late 50’s, 60’s it just kept
getting more and more and more use.
Q 	Did that use continue in the fashion you
have indicated up to the time it was closed?
A 	Yes, it did.
George Webb also testified that customers drove on the Airport
Road to his shop for his livestock transportation business.
None of the witnesses testified to any interruption of
the public’s use of the road, other than its temporary closure in
1988 and final closure in 1989. 	Indeed, Mr. Mathis, the Wasatch

8 Though the County classified the Airport Road as a class B
road, this fact alone does not compel the conclusion that the
road was a public highway under section 27-12-89. 	See Bonner,
417 P.2d at 648 (“[T]he fact that [the road in question] was
shown on the public records to be a public street” “will not
necessarily establish it as a public way[.]”). 	In this case,
Mr. Mathis admitted that he merely accepted the Airport Road’s
designation as a class B road from his predecessor. 	Therefore,
we do not know why it was initially classified as a class B road.
9 The only evidence suggesting any limitation of the
public’s use was that the gun club moved to a new location after
the airport became operational. 	This fact alone, however, is
insufficient to justify the conclusion that the road was not
continuously used. 	No other evidence suggested that any other
public use of the road was limited. 	Furthermore, the fact that
the gun club was required to move indicates that it was the
shooting activities of the gun club in the immediate vicinity of
the airport, not the public’s use of the road, that prompted
airport officials to relocate the club.
7 	No. 960029
County Planner, testified that the County considered the Airport
Road, which was in the unincorporated portion of the county, to
be a public road. 8 	Thus, the County certainly was not likely to
restrict the public’s use of the road. 	The uncontradicted
evidence demonstrates that the public “made a continuous and
uninterrupted use of” the Airport Road “as often as they found it
convenient or necessary.” 9 	See Boyer v. Clark, 326 P.2d 107, 109
(Utah 1958). 	We conclude that this evidence establishes as a
matter of law that the Airport Road was used continuously for
purposes other than reaching the airport. 	See Draper City, 888
P.2d at 1101 (emphasizing importance of preventing general public
use of road to avoid statutory dedication).
We now consider whether this “continuous use” was “use
as a public thoroughfare.” 	Perhaps our most detailed definition
of “public thoroughfare” was announced in Morris v. Blunt, 161 P.
1127, 1131 (Utah 1916), where we stated:
A “thoroughfare” is a place or way
through which there is passing or travel. 	It
becomes a “public thoroughfare” when the
public have a general right of passage.
Under [the identically worded predecessor
statute to section 27-12-89,] the highway,
even though it be over privately owned
ground, will be deemed dedicated or abandoned
to the public use when the public has

No. 960029 	8
continuously used it as a thoroughfare for a
period of 10 years, but such use must be by
the public. 	Use under private right is not
sufficient. 	If the thoroughfare is laid out
or used as a private way, its use, however
long, as a private way, does not make it a
public way; and the mere fact that the public
also make use of it, without objection from
the owner of the land, will not make it a
public way. 	Before it becomes public in
character the owner of the land must consent
to the change.
See also Thompson, 273 P.2d at 723 (quoting same passage with
approval). 	This definition establishes four general
requirements: 	(i) There must be “passing or travel,” (ii) the
“use must be by the public,” (iii) use by permission does not
constitute use as a public thoroughfare, and (iv) “[b]efore [the
road] becomes public in character the owner of the land must
consent to the change.” 	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. 	See, e.g., Thurman, 626 P.2d at 449.
Regarding the class of individuals who constitute “the public,”
we stated in Draper City that
our case law has distinguished between use of
a road by owners of adjoining property and by
the general public. 	“Such property owners
cannot be considered members of the public
generally, as that term generally is used in
dedication by user statutes.” 	Petersen, 438
P.2d at 546. 	This is because adjoining
owners may have documentary or prescriptive
rights to use the road or their use may be by
permission of the owners of the fee of the
road.
888 P.2d at 1099; see also Petersen v. Combe, 438 P.2d 545, 547
(Utah 1968).
Having established the general legal principles of what
it means to use a road as a public thoroughfare, we proceed to
examine the evidence to determine whether this legal standard was
satisfied. 	Several witnesses testified to use that could qualify

10 Under the facts of the instant case, the public’s use of
the Airport Road simply to go to and from the airport is of the
permissive nature that will not lead to a dedication and
abandonment to the public, as this is precisely how Heber City
wanted the road used. 	See Gillmor v. Carter, 391 P.2d 426, 428
(Utah 1964) (finding owners’ “agreement with duck clubs granting
permission to use” road across their land to be inconsistent with
statutory requirements for dedication of public highway).
Therefore, evidence regarding this use of the road is irrelevant
to our consideration of whether the Airport Road was used as a
public thoroughfare.
9 	No. 960029
as use as a public thoroughfare. 10 	For example, Mr. Lloyd, while
testifying about the shooting events at the gun club, stated:
“We always had a lot of spectators [sic] would always drive out
on the weekends and watch the shoots or family people and stuff
that [sic] was interested in it. 	It was a lot of the community
that came out there.” 	As we noted above, other witnesses
testified that numerous customers used the Airport Road to reach
the various businesses located along that road. 	Moreover, there
was testimony indicating additional public uses of the Airport
Road as a “lover’s lane” and also as a place to ride horses.
There is no indication in the district court’s
memorandum decision that it found any of the above evidence
incredible. 	To the contrary, the district court specifically
referred in its findings of fact to some of these public uses.
Furthermore, when the court concluded its memorandum decision by
“acknowledg[ing] that this is a close decision,” the court
stated, “There is evidence of public use of the airport roadway
over an extended period of time.” 	Indeed, no evidence to the
contrary was presented. 	Moreover, Heber City never argued at
trial or on this appeal that these uses were not by the “public.”
Because Heber City does not challenge the accuracy of the trial
court’s finding that “[t]here is evidence of public use of the
airport roadway,” we do not review whether all of these uses were
indeed by individuals who qualify as members of the public. 	When
a party fails to challenge a factual finding and marshal the
evidence in support of that finding, we “assume[] that the record
supports the findings of the trial court and proceed[] to a
review of the accuracy of the lower court’s conclusions of law
and the application of that law in the case.” 	Saunders v. Sharp,
806 P.2d 198, 199 (Utah 1991) (per curiam) (citing Grayson Roper
Ltd. Partnership v. Finlinson, 782 P.2d 467, 470 (Utah 1989);
Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985)).
The evidence establishes that the public used the
Airport Road for whatever purposes they deemed “convenient or

11 The sole evidence to the contrary was that the gun club
relocated after the airport became operational. 	For the same
reasons we discussed above, see supra note 9, this fact alone is
insufficient to justify the conclusion that the Airport Road was
not used as a public thoroughfare.
12 The fact that the road has not been used since 1989 does
not change its status as a public highway. 	In Western Kane
County Special Service District No. 1 v. Jackson Cattle Co., 744
P.2d 1376, 1377-78 (Utah 1987), we held that a highway which had
been dedicated and abandoned to the public by the public’s use of
it “from 1919 until 1931, when the highway was relocated and
public use of the . . . road stopped,” still maintained its
status as a public highway though half a century had passed since
(continued...)
No. 960029 	10
necessary.” 11 	See Boyer, 326 P.2d at 109. 	On the basis of this
evidence, we find as a matter of law that the public used the
Airport Road as a public thoroughfare.
Having concluded that the first two elements under
section 27-12-89 were satisfied, we turn to the final requirement
in section 27-12-89: 	Continuous use as a public thoroughfare
must occur for at least ten years. 	As we discussed above, the
uncontroverted facts establish that the public continuously used
the Airport Road as a public thoroughfare from essentially its
moment of creation in 1947 until Heber City placed a barricade
across it in 1989. 	This amounts to over forty years of
continuous use as a public thoroughfare, easily satisfying the
ten-year requirement. 	We conclude therefore that the facts
compel the conclusion that the ten-year requirement was satisfied
as a matter of law.
Our conclusion that all three elements under section
27-12-89 for the establishment of a public highway were satisfied
is supported by the district court’s memorandum decision. 	After
acknowledging in its memorandum decision that “[t]here is
evidence of public use of the airport roadway over an extended
period of time,” the court added, “However, in the interest of
fairness and justice, [the Airport Road] should be exempted from
the technical provisions of U.C.A. § 27-12-89” (emphasis added).
The plain language of section 27-12-89, however, does not support
granting such an exception for the Airport Road. 	Once the
technical provisions of that section have been satisfied, the
road is a “public highway.” 	The court has no discretion to
ignore that fact. 	We hold that the court erred in concluding
that the Airport Road was not a public highway when closed by
Heber City in 1989. 12

12 (...continued)
the road was used by the public. 	See also Clark v. Erekson, 341
P.2d 424, 425-26 (Utah 1959) (requiring property owner to remove
encroachments, which included buildings, fences, and trees, from
public road though some encroachments had been in place for
thirty years). 	Furthermore, the City’s placement of a barricade
across the road does not change the public status of the road.
Memmott v. Anderson, 642 P.2d 750, 753 (Utah 1982).
Section 27-12-90 of the Code provides the only method for
eliminating the “public” status of a public highway. 	That
section states, “All public highways once established shall
continue to be highways until abandoned or vacated by order of
the highway authorities having jurisdiction over any such
highway, or by other competent authority.” 	Utah Code Ann.
§ 27-12-90. 	The court found that Heber City had not formally
abandoned or vacated the Airport Road under that section, and the
City does not dispute this finding. 	Consequently, the Airport
Road is still a public highway.
11 	No. 960029
We reverse the district court’s decision that the
Airport Road was not a public highway under section 27-12-89, and
we remand for further proceedings to determine the just
compensation to be paid by Heber City as a result of its
condemnation of the Simpsons’ property.
---
Justice Howe, Justice Durham, Justice Russon, and Judge
Taylor concur in Chief Justice Zimmerman’s opinion.
Having disqualified himself, Associate Chief Justice
Stewart does not participate herein; District Judge Stanton M.
Taylor sat.

No. 960029 	12
May 2, 1985, aerial photograph of Heber Airport and
surrounding area. 	This photograph was altered to
add street names and the boundaries of the Simpsons’
property.
Appendix: 	Map of Airport Road