Hall v. Peterson

2017 UT App 226
THE UTAH COURT OF APPEALS
K YLE R. HALL,
Appellee,
v.
DAVID L. P ETERSON ,
Appellant.
Opinion
No. 20150459-CA
Filed December 7, 2017
Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 120600065
Kasey L. Wright and Cherylyn Egner, Attorneys
for Appellant
Troy L. Booher, Clemens A. Landau, and Russell A.
Cline, Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES GREGORY K. O RME and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	Since 1965, David L. Peterson, individually and through
his trust, has owned a large tract of recreational mountain
property east of Mount Pleasant in Sanpete County.1 Part of the
property is known as Buckhorn Flats. Between 2010 and 2013,
Kyle R. Hall purchased four lots near Buckhorn Flats. A dirt
1. Peterson passed away in June 2014. However, he is still listed
as the appellant in this matter as the trustee of the David L.
Peterson Trust. Appellant refers to the current trustees of the
Peterson estate as “Appellant” or “Peterson.” We follow this
pattern for consistency.

Hall v. Peterson
20150459-CA 	2 	2017 UT App 226
road (the Peterson Road) crosses Buckhorn Flats and is the only
access to another road (the Spur Road) that leads to Hall’s four
lots. When Peterson would not allow access across Buckhorn
Flats using the Peterson Road, Hall sued. At trial, the jury found
that the evidence established an easement by estoppel, allowing
Hall to use the Peterson Road. On appeal, Peterson argues that
the evidence at trial was insufficient to support an easement by
estoppel and that his motion for a directed verdict should have
been granted.2 Peterson also argues that the trial court erred in
not defining the scope of the easement and in its determination
of the prevailing party and award of costs. We reverse the trial
court’s denial of Peterson’s motion for a directed verdict.
BACKGROUND3
¶2 	Peterson 	owned 	Buckhorn 	Flats 	beginning 	sometime
prior to 1965. Peterson conveyed that property to the David L.
2. Although the jury accepted only the easement by estoppel
theory, 	Hall 	also 	brought 	claims 	for 	prescriptive 	easement,
easement by necessity, public road, recorded easement, and
wrongful denial of access. Only prescriptive easement, easement
by estoppel, and public road were submitted to the jury by way
of a special verdict form. The jury found against Hall on the
claims for prescriptive easement and public road.
3. “When reviewing any challenge to a trial court’s denial of a
motion for directed verdict, we review the evidence and all
reasonable inferences that may fairly be drawn therefrom in the
light most favorable to the party moved against[.]” Mahmood v.
Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (citation and internal
quotation marks omitted). The facts stated herein have been
construed in a light most favorable to Hall—the party moved
against. However, where evidence was lacking, we have noted
that absence in our factual recitation.

Hall v. Peterson
20150459-CA 	3 	2017 UT App 226
Peterson Trust in 2006. Adjacent to Buckhorn Flats is land that
has been variously owned by other entities. Hall now owns four
lots of that adjacent property. The Peterson Road, going across
Buckhorn Flats, is the only way to access those lots by vehicle.
¶3 	Sometime around 1996 Peterson built a gate that blocked
access to the Peterson Road. Hall’s family obtained a key to the
gate,4 but Peterson changed the locks around 2008. Hall first
personally asked Peterson for a key to the gate in 2010, after he
purchased property beyond Buckhorn Flats. Peterson refused,
despite Hall showing Peterson proof of ownership of property
beyond the gate. Hall then purchased other parcels even though
Peterson had denied him a key. Hall eventually brought this
action seeking access along the Peterson Road.
¶4 	One theory Hall advanced at trial, and upon which he
ultimately 	prevailed, 	was 	that 	through 	the 	predecessors 	in
interest to his properties Hall could establish an easement by
estoppel 	across 	Buckhorn 	Flats 	to 	access 	those 	properties.
Therefore, the manner in which Hall’s predecessors in interest
used the Peterson Road over the many years was at issue during
trial.
Hall’s Predecessors in Interest
¶5 	Hall purchased his four lots between 2010 and 2013—one
from Lula Jean Thomas in 2010, two from David Gobel in 2011,
and one from Alice Smith in 2013. Alice Smith had acquired her
property from her son, Ronald Smith (Smith).5 Both Thomas and
4. Hall did not personally own property at the time, but his
family has owned property nearby for some time.
5. The record does not establish when Smith sold the property to
his mother. In any case, Alice Smith did not testify at trial, and
her use of the Peterson Road, if any, is not in evidence.

Hall v. Peterson
20150459-CA 	4 	2017 UT App 226
Smith 	acquired 	their 	properties 	from 	Diversified 	Marketing
(Diversified) in the 1970s. At trial, Gobel did not testify and there
was no evidence presented showing the historical ownership of
the Gobel lots.
Predecessors’ Use of the Peterson Road
¶6 	Although Thomas and Smith only visited their respective
properties a few times over a period of many years, on the rare
occasion that they would travel to their properties, they drove to
their lots by use of a dirt road.6 Smith drove with an unidentified
Diversified representative “to what they said was [his] piece of
property” shortly after Smith agreed to buy the property. Smith
subsequently drove to his property two more times, but he had
not been to the property in roughly thirty years. Thomas visited
her lots “three, maybe four” times from the time she acquired
them in the “late ’60s, early ’70s” until she sold one of her lots to
Hall. Thomas never asked for or received permission to use the
Peterson Road.
¶7 	Diversified, the previous owner of the Smith and Thomas
lots, purchased those lots sometime prior to 1974 as part of
roughly 1,550 acres of property to the south of Buckhorn Flats.7
6. Although the witnesses did not testify that they specifically
used the Peterson Road to access their properties (most, it seems,
were unaware that they were crossing another’s property and
assumed they were on a public road), the evidence established
that the only road that provides driving access to the witnesses’
respective properties is the Peterson Road.
7. The date Diversified acquired the property south of Buckhorn
Flats is not mentioned in the briefs. The testimony at trial from
the previous land owner, Neil Jorgensen, was that he at one time
(but not at the same time) owned both Buckhorn Flats and the
(continued…)

Hall v. Peterson
20150459-CA 	5 	2017 UT App 226
Diversified began selling “little parcels” of that property. A
“spur road” was built off of the Peterson Road and provided
access to some of the lots Diversified sold, including Hall’s lots.
Hall provided the only testimony at trial about who built the
Spur Road, testifying that Diversified built it. Hall also testified,
however, that he neither saw Diversified build the Spur Road
nor 	had 	any 	supporting 	documentation 	as 	a 	basis 	for 	his
testimony.
¶8 	Three 	witnesses 	testified 	about 	the 	possible 	use 	or
presence of construction machinery on Diversified’s property,
which presumably could only have been brought there through
use of the Peterson Road. An excavating contractor, testifying as
an expert witness, opined that the Spur Road “was maybe 15 feet
across or so, and . . . [that it] would take a machine to build the
road that wide, that significant.” A second expert, a general
contractor, agreed. These witnesses did not testify about how
many machines would have been necessary or how long it
would have taken to grade the road. The third witness, Smith,
testified that after he purchased the property in the 1970s, but
before 1980, on one occasion he “saw a bulldozer south of [his]
property” where Diversified “said there would be a clubhouse”
and that Diversified had “bulldozed a short section of an area
south of [his] property[] . . . in an area which [Diversified] said
was what they were selling.” When asked about the bulldozer’s
exact location, Smith stated, “I can’t tell you how far south, but it
was south of the property.” Smith did not testify that the
bulldozer was on the Peterson Road or that it was being used for
making a road or any other improvement.
(…continued)
property to the south. Jorgensen testified that he owned and sold
Buckhorn Flats before he owned the property to the south.

Hall v. Peterson
20150459-CA 	6 	2017 UT App 226
Other Use of the Peterson Road
¶9 	The 	jury 	heard 	testimony 	from 	other 	witnesses—
Johansen, 	Vincent, 	Seely, 	Sorensen, 	R. 	Hall, 	C. 	Hall, 	and
Matthews—that the Peterson Road had been used on isolated
instances 	over 	a 	period 	of 	decades 	without 	obstruction 	or
restriction.
¶10 	Johansen, a person familiar with the area, gave deposition
testimony that he drove on the Peterson Road in the 1970s for
hunting but at trial testified that he did not ever remember using
a vehicle while on the Peterson Road. Johansen acknowledged
that when he was deposed he had stated that he saw people
from out of state use vehicles on the Peterson Road, but at trial
he testified he did not “know of” any other vehicles using the
road back in the 1970s. An affidavit signed by Johansen was read
at trial stating that the “south roads have been used as [a] public
thoroughfare,” but Johansen did not remember asserting that
when questioned at trial. Johansen did not testify that Peterson
was present on any of these occasions.
¶11 	Vincent, a property owner in the area, testified that she
had asked Peterson for permission to use the Peterson Road, and
that from 1991 to 1996 she had “free access” to her property by
use of the road. She also testified that she saw people using
ATVs on the road during this time. Vincent in no way quantified
whether this was a single occurrence or whether she observed
ATVs frequently. Vincent did not testify that Peterson was
present on any of these occasions. Vincent did not testify one
way or the other whether the ATV riders had sought permission
to ride on the road. Peterson eventually limited her access to the
Peterson Road and she has not had access to her property since
2009.
¶12 	Seely, an owner of nearby property and a person “[v]ery
familiar” with the area, testified that, in the 1950s through 1962,
“a lot of people” used vehicles on the Peterson Road to “hunt

Hall v. Peterson
20150459-CA 	7 	2017 UT App 226
deer up there on Buckhorn Flat” and that “[t]he competition was
pretty great up there . . . [during] the deer hunt.” While Seely
testified of many other times hunting “potguts” and “plant[ing]
potatoes for [Peterson]” on other sections of Peterson’s property,
none of those other instances included use of the Peterson Road
on Buckhorn Flats. Seely reiterated that he was not in the area in
the 1970s and 1980s.
¶13 	Sorensen, another property owner in the area, testified
about his use of the Peterson Road. The first time Sorensen
visited his property, he and a real estate agent “drove as far as
[they] could, and then [they] hiked in.” After he purchased his
property in 1976, he “just drove right to” the property on “the
only [road] that [he was] aware of” “at least once a summer” for
“[t]en, twelve years or so.” Sorensen never asked permission to
use the Peterson Road and no one ever objected to him using it.
Sorensen did not testify that Peterson was present on any of
these occasions. Sorensen has been unable to access his property
since the “early to mid- ’90s” because of a “chain” or a “gate”
blocking the Peterson Road.
¶14 	R. Hall, Hall’s father and an owner of nearby property
accessible from an alternate road, testified that, from around
1977 until around 2006, he would “go up there at least once a
year, sometimes more” and drive trucks and ATVs on the
Peterson Road for recreational purposes. R. Hall testified that the
Peterson Road was “just an open road. People up there driving
around, hunting, doing activities. People from town coming up
on four-wheelers. It was just . . . open. There was no gate[], no
trespassing signs. It was always open.” C. Hall, Hall’s mother
and a person familiar with nearby property, testified about her
personal use of the road and seeing others use the Peterson Road
in a similar manner described by R. Hall.
¶15 	The deposition of Matthews, another property owner in
the area, was read into evidence during trial. Matthews had

Hall v. Peterson
20150459-CA 	8 	2017 UT App 226
driven to his property once “back in . . . 1974.” Matthews’s
deposition reads:
Q. 	Who did you go with? Who did you drive
up there with?
A. 	As I remember there was a group of us that
were owners . . . . And I remember going with, you
know, five or six other owners, Sherm Clowder
and Arden Kitchen for sure.
Q. 	Did a real estate—
A. 	And probably Paul Richards.
Q. 	I apologize.
A. 	Yeah, and probably Paul Richards too.[8]
Matthews tried to go back to the property “a couple of times,”
but was unable to reach it because “[t]here [were] fences there,
and it was a little more snowy and muddy, and [they] couldn’t
get up there because of those two problems.”
Motion for Directed Verdict
¶16 	After Hall had presented his evidence, Peterson moved
for 	a 	directed 	verdict, 	arguing 	that 	there 	was 	insufficient
evidence to support Hall’s claim for easement by estoppel. The
following argument about easement by estoppel was made on
the motion:
8. Hall later argued that a reasonable juror could infer from this
testimony that real estate agents frequently used the Peterson
Road. Paul Richards is another property owner.

Hall v. Peterson
20150459-CA 	9 	2017 UT App 226
[Attorney 	for 	Hall]: 	Mr. 	Peterson[] 	permitted
another to use his land under the circumstances in
which it was reasonable to foresee that the user
would substantially change position believing that
the permission would not be revoked.
[The Court]: So is it enough that [an owner] went
there and looked at it and then bought it? Is that
enough?
[Attorney for Hall]: Yes. . . .
[The Court]: Just because he drove to it and looked
at the property.
[Attorney 	for 	Hall]: 	Well, 	Diversified—the
Petersons knew that Diversified was crossing . . . .
¶17 	The trial court denied Peterson’s motion after reviewing
the evidence relevant to the elements of easement by estoppel.
Specifically, 	the 	court 	examined 	whether 	Peterson 	gave
permission to Hall or his predecessors in interest to use the
Peterson Road, whether it was foreseeable to Peterson that
others would rely on that permission, and whether Hall or his
predecessors in interest substantially changed position based on
a belief that permission would not be revoked. The trial court
ultimately concluded that there was sufficient evidence for the
jury to determine that there was an easement by estoppel.
Verdict
¶18 	After the conclusion of the presentation of evidence, the
jury answered the special verdict form and found that the
elements of easement by estoppel were met. The trial court
entered judgment granting Hall an easement by estoppel based
on the jury’s answers. The trial court also awarded costs to Hall,
determining that Hall was the prevailing party. Peterson filed a

Hall v. Peterson
20150459-CA 	10 	2017 UT App 226
motion for judgment notwithstanding the verdict, which the trial
court denied. Peterson appeals the denial of his motion for
directed verdict.
ISSUE AND STANDARD OF REVIEW
¶19 	We review whether there was sufficient evidence for the
trial court to deny Peterson’s motion for a directed verdict.
When reviewing any challenge to a trial court’s
denial of a motion for directed verdict, we review
the evidence and all reasonable inferences that may
fairly 	be 	drawn 	therefrom 	in 	the 	light 	most
favorable to the party moved against, and will
sustain 	the 	denial 	if 	reasonable 	minds 	could
disagree with the ground asserted for directing a
verdict. As this Court’s standard of review of a
directed verdict is the same as that imposed upon
the trial court, we review the trial court’s decision
to 	determine 	if 	the 	evidence 	at 	trial 	raised 	a
question 	of 	material 	fact 	which 	precluded
judgment as a matter of law.
Mahmood v. Ross, 1999 UT 104, ¶ 16, 990 P.2d 933 (brackets,
citations, and internal quotation marks omitted); see also Merino
v. Albertsons, Inc., 1999 UT 14, ¶¶ 3, 8, 975 P.2d 467 (reversing the
denial of a directed verdict motion); Salt Lake City v. Gallegos,
2015 UT App 78, ¶ 5, 347 P.3d 842 (same).
ANALYSIS
I. Preservation
¶20 	As a preliminary matter, we address Hall’s argument that
most of Peterson’s arguments on appeal are unpreserved. An
issue is preserved when the issue is “presented to the trial court

Hall v. Peterson
20150459-CA 	11 	2017 UT App 226
in such a way that the trial court has an opportunity to rule on
that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801 (citation and internal quotation marks omitted). This
court generally will not review issues that are not preserved in
the trial court unless there is a showing of plain error or
exceptional circumstances. See York v. Shulsen, 875 P.2d 590, 594
(Utah Ct. App. 1994).
¶21 	Peterson 	does 	not 	argue 	plain 	error 	or 	exceptional
circumstances. We therefore must only determine if the issue—
whether 	there was sufficient 	evidence 	to 	support 	a verdict
establishing an easement by estoppel—was presented at trial in a
way that the trial court could rule on all of the elements of
easement by estoppel.
¶22 	The trial court instructed the jury as follows on the
elements of easement by estoppel:
An easement by estoppel can only be granted if it
is established by a preponderance of the evidence
that: (1) the owner or occupier permitted another to
use that land under circumstances in which it was
reasonable 	to 	foresee 	that 	the 	user 	would
substantially 	change 	position 	believing that the
permission would not be revoked; (2) the user did
substantially change position in reasonable reliance
on 	that 	belief; 	and 	(3) 	granting 	the 	user 	an
easement is necessary to avoid injustice. [9]
9. Peterson did not object to this instruction nor does he claim on
appeal that the instruction misstates the law. Our attention has
been directed to no Utah appellate court decision recognizing
easement by estoppel. The trial moved forward under this
theory and Peterson does not challenge its existence in Utah.
Accordingly, like the parties, we assume its existence. Easement
(continued…)

Hall v. Peterson
20150459-CA 	12 	2017 UT App 226
¶23 	Hall argues that the issues presented on appeal are only
partially 	preserved 	because 	Peterson 	“moved 	for 	directed
verdict with respect to only . . . reasonable reliance.” Thus, Hall
argues, Peterson is barred from challenging the sufficiency of the
evidence 	on 	any 	other 	element 	of 	easement 	by 	estoppel—
“permission by the owner, . . . reasonable foreseeability by the
owner, . . . and substantial change by [the] user.”
¶24 	The record does not support Hall’s position. The parties
argued 	permission 	by 	the 	landowner, 	the 	landowner’s
foreseeability of reasonable reliance, and substantial change of
position during the motion. See supra ¶¶ 16–17. Peterson never
conceded 	that 	any 	of 	the 	elements were 	supported 	by 	the
evidence, and the trial court made specific conclusions going to
the elements Hall claims are unpreserved.
¶25 	As to Peterson’s knowledge and implied permission to
use the road, the court determined that “it’s reasonable to
believe that [Peterson] would have known that the . . . spur road
was being built.” The court also made conclusions in its ruling
addressing reasonable foreseeability by the landowner, saying,
“It would be reasonable for him to foresee or to believe that
others intended to use [the Peterson Road] to access that spur
road that was being built.” Likewise, substantial change by the
user was also discussed extensively during argument on the
motion. Hall argued, “Peterson knew or he should have known
that Diversified and buyers and prospective buyers were coming
across his property and changing their position by building new
roads, 	changing 	their 	position 	by 	selling 	property, 	[and]
changing 	their 	position 	by 	buying 	property 	based 	on 	an
(…continued)
by estoppel has been recognized in a federal court action in
Utah. Intermountain Resources, LLC v. Jorgensen, No. 2:08–CV–80
TS, 2010 WL 4237313, at *4 (D. Utah Oct. 21, 2010).

Hall v. Peterson
20150459-CA 	13 	2017 UT App 226
assumption.” 	Thus, 	the 	record demonstrates that all 	of the
elements of easement by estoppel that Peterson challenges on
appeal10 were “presented to the trial court in such a way that the
trial court ha[d] an opportunity to rule on that issue.” See 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation
and internal quotation marks omitted). Therefore, we address all
of Peterson’s arguments.
II. Sufficiency of the Evidence
¶26 	We 	next 	review 	whether 	the 	evidence 	at 	trial 	was
sufficient to support an easement by estoppel.
Under Utah law, a party who moves for a directed
verdict has the very difficult burden of showing
that no evidence exists that raises a question of
material fact. If there is any evidence raising a
question of material fact, judgment as a matter of
law is improper. Thus, a motion for a directed
verdict is only appropriate when the court is able
to conclude, as a matter of law, that reasonable
minds 	would 	not 	differ 	on 	the 	facts 	to 	be
determined from the evidence presented.
Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933 (citations and
internal quotation marks omitted). “[T]he court is not free to
weigh the evidence and thus invade the province of the jury,
whose prerogative it is to judge the facts.” Id.
¶27 	However, even where evidence exists, that evidence must
be material and sufficiently probative to enable a factfinder to do
more than speculate before a directed verdict motion should be
10. The third element in the jury instruction, “granting the user
an easement is necessary to avoid injustice,” is not challenged on
appeal.

Hall v. Peterson
20150459-CA 	14 	2017 UT App 226
denied. Salt Lake City v. Gallegos, 2015 UT App 78, ¶ 11, 347 P.3d
842 (reversing the denial of a directed verdict motion where the
jury’s verdict required speculation). For example, in Mahmood,
after the denial of a motion for a directed verdict, a jury had
returned 	a 	verdict 	in 	favor 	of 	a 	plaintiff 	on 	the 	issues 	of
causation and mitigation of damages. In reversing, our supreme
court explained:
Proximate cause is generally determined by an
examination of the facts, and questions of fact are
to be decided by the jury. Thus, courts should
refuse to grant a directed verdict on issues of
causation if there is any evidence which might lead
a 	reasonable 	jury 	to 	find 	a 	causal 	connection
between 	a 	breach 	and 	a 	subsequent 	injury.
However, this does not mean that a jury is free to
find a causal connection between a breach and
some subsequent injury by relying on unsupported
speculation. Although juries may make deductions
based 	on 	reasonable 	probabilities, 	the 	evidence
must do more than merely raise a conjecture or
show a probability. Where there are probabilities
the 	other 	way 	equally 	or 	more 	potent 	the
deductions are mere guesses and the jury should
not be permitted to speculate. The rule is well
established 	in 	this 	jurisdiction 	that 	where 	the
proximate cause of the injury is left to conjecture,
the plaintiff must fail as a matter of law.
Mahmood, 1999 UT 104, ¶ 22 (citations and internal quotation
marks omitted). After reviewing the evidence, the court 	in
Mahmood concluded there was insufficient evidence of causation
and held that the issue of causation should not have been
submitted to the jury. Id. ¶ 29. The Mahmood court then similarly
reviewed the evidence and found it insufficient to submit the

Hall v. Peterson
20150459-CA 	15 	2017 UT App 226
issue of mitigation of damages to the jury and held that the
directed verdict should have been granted. Id. ¶¶ 37, 39.
¶28 	With this standard in mind, we proceed to review the law
of easement by estoppel and the sufficiency of the evidence in
support of that claim in this case. As noted above, supra ¶ 22
note 9, no Utah state court decision has recognized easement by
estoppel, but we assume its existence for purpose of this appeal.
Notwithstanding 	the 	lack 	of 	recognition 	for 	easement 	by
estoppel, estoppel itself is a well-recognized legal principle.
¶29 	The 	estoppel 	asserted 	here 	is 	an 	equitable 	estoppel
because it arose from the parties’ conduct, not from a record or
contract. See Youngblood v. Auto-Owners Ins. Co., 2005 UT App
154, ¶ 12, 111 P.3d 829 (“Utah courts define equitable estoppel as
conduct by one party which leads another party, in reliance
thereon, to adopt a course of action resulting in detriment or
damage if the first party is permitted to repudiate his conduct.”
(citation 	and 	internal 	quotation 	marks 	omitted)); 	31 	C.J.S.
Estoppel & Waiver § 1 (2017) (defining equitable estoppel as “all
forms of estoppel not arising from a record, from a deed, or from
a 	written 	contract”). 	“The 	gravity 	of 	a 	judicial 	means 	of
acquiring 	an 	interest 	in 	land 	of 	another 	solely 	by 	parol
[evidence] 	requires 	that 	equitable 	estoppel 	be 	strictly
applied, and the estoppel should be certain, precise and clear.”
McClung v. Ayers, 352 S.W.3d 723, 729 (Tex. App. 2011) (footnote,
citations, and internal quotation marks omitted).
To prevail on a claim of equitable estoppel, a party
must establish three elements. First, there must be
a statement, admission, act, or failure to act by one
party 	inconsistent 	with 	a 	claim 	later 	asserted.
Second, 	estoppel 	requires 	reasonable 	action 	or
inaction by the other party taken or not taken on
the basis of the first party’s statement, admission,
act or failure to act. Third, there must be injury to
the second party that would result from allowing

Hall v. Peterson
20150459-CA 	16 	2017 UT App 226
the 	first 	party 	to 	contradict 	or 	repudiate 	such
statement, admission, act, or failure to act.
Salt Lake City Corp. v. Big Ditch Irrigation Co., 2011 UT 33, ¶ 41,
258 P.3d 539 (citations and internal quotation marks omitted).
¶30 	The 	parties 	based 	the 	jury 	instruction 	outlining 	the
elements of easement by estoppel on language found in the
Restatement 	(Third) 	of 	Property, 	generally 	tracking 	the
requirements for equitable estoppel outlined above:
If injustice can be avoided only by establishment of
a 	servitude, 	the 	owner 	or 	occupier 	of 	land 	is
estopped 	to 	deny 	the 	existence 	of 	a 	servitude
burdening the land when:
(1) the owner or occupier permitted another to use
that land under circumstances in which it was
reasonable 	to 	foresee 	that 	the 	user 	would
substantially change position believing that the
permission would not be revoked, and the user
did substantially change position in reasonable
reliance on that belief[.]
Restatement (Third) of Prop.: Servitudes § 2.10 (Am. Law Inst.
2000). The three elements argued at trial, and thus the elements
that 	we 	review 	here, 	are 	(1) 	permission 	granted 	by 	the
landowner, (2) reasonable foreseeability by the landowner that
the user would rely on the permission he or she has been
granted, and (3) substantial change of position by the user based
on the permission by the landowner.
¶31 	The first element, permission, is a question of fact. See
Home of Economy v. Burlington N. Santa Fe R.R., 2010 ND 49,
¶¶ 21–22, 	780 	N.W.2d 	429 	(reviewing 	the 	representation
communicated to the promisee as a factual finding). Permission
need 	not 	be 	expressed 	in 	writing; 	but 	generally 	some

Hall v. Peterson
20150459-CA 	17 	2017 UT App 226
representation must be communicated by the landowner. See
id. ¶ 21 (“To establish a valid claim for an easement by estoppel,
the party claiming the existence of the easement must show a
representation 	was 	communicated 	to 	the 	promisee, 	the
representation was believed, and there was a reliance upon the
communication.” 	(citation 	and 	internal 	quotation 	marks
omitted)); S & G Associated Developers, LLC v. Covington Oaks
Condo. Owners Ass'n, 361 S.W.3d 210, 216 (Tex. App. 2012) (“The
elements for an easement by estoppel are: (1) a representation
communicated, either by word or action, to the promisee; (2) the
communication was believed; and (3) the promisee relied on the
communication.”); 25 Am. Jur. 2d Easements & Licenses § 19
(2017) (stating the permissive element of easement by estoppel
as “a representation communicated, either by word or action, to
the 	promisee”). 	Permission 	can 	take 	the 	form 	of 	silence.
However, “for silence to work an estoppel, there must be a legal
duty to speak, or there must be something willful or culpable in
the 	silence 	which 	allows 	another 	to 	place 	himself 	in 	an
unfavorable 	position 	by 	reason 	thereof.” 	First 	Inv. 	Co. 	v.
Andersen, 621 P.2d 683, 687 (Utah 1980) (citation and internal
quotation marks omitted). “The duty to speak does not arise
until the silent party is himself aware of the facts.” Martin v.
Cockrell, 335 S.W.3d 229, 238 (Tex. App. 2010) (citation and
internal quotation marks omitted).
¶32 	The second and third elements, reasonable foreseeability
by the landowner and substantial change by the user, are also
questions of fact. See, e.g., B.R. ex rel. Jeffs v. West, 2012 UT 11,
¶¶ 25–26, 275 P.3d 228 (noting that foreseeability with respect to
proximate cause presents a question of fact); Timothy v. Keetch,
2011 UT App 104, ¶ 10, 251 P.3d 848 (“Reasonable reliance is
generally a factual matter[.]”); Kapp v. Norfolk S. Ry. Co., 350 F.
Supp. 2d 597, 612 (M.D. Pa. 2004) (discussing substantial change
of 	position 	as 	“a 	factual 	determination”). 	Both 	reasonable
foreseeability and substantial change must be based on the first
element, 	permission. 	See 	Restatement 	(Third) 	of 	Prop.:

Hall v. Peterson
20150459-CA 	18 	2017 UT App 226
Servitudes § 2.10 (Am. Law Inst. 2000) (indicating that equitable
estoppel may be invoked “under circumstances in which it was
reasonable to foresee that the user would substantially change
position believing that the permission would not be revoked, and the
user did substantially change position in reasonable reliance on
that belief” (emphases added)).
¶33 	The 	elements 	for 	an 	easement 	by 	estoppel, 	being
questions of fact, are generally to be determined by a jury. Thus,
courts should refuse to grant a directed verdict on easement by
estoppel if there is any evidence which might lead a reasonable
jury to find the elements are met. Mahmood v. Ross, 1999 UT 104,
¶ 22, 990 P.2d 933. However, a jury may not find such elements
are met by relying on unsupported speculation. Id.
¶34 	The trial court denied Peterson’s motion for a directed
verdict 	on 	the 	basis 	that 	the 	jury 	could 	make 	reasonable
inferences based on the evidence to reach its verdict.
[T]he distinction between reasonable inference and
speculation is intensely fact-based. When evidence
supports only one possible conclusion, the quality
of the inference rests on the reasonable probability
that the conclusion flows from the proven facts.
When 	the 	evidence 	supports 	more 	than 	one
possible 	conclusion, 	none 	more 	likely 	than 	the
other, the choice of one possibility over another can
be no more than speculation; while a reasonable
inference arises when the facts can reasonably be
interpreted 	to 	support 	a 	conclusion 	that 	one
possibility is more probable than another.
State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d 1096 (citation
and 	internal 	quotation 	marks 	omitted). 	While 	this 	general
premise is true, it fails to support the verdict here.

Hall v. Peterson
20150459-CA 	19 	2017 UT App 226
¶35 	We hold that evidence does not exist in the record that
supports the needed inferences to establish an easement by
estoppel through Hall or any of his predecessors in interest.
Because Hall essentially concedes that he cannot personally
establish 	an 	easement 	by 	estoppel,11 	we 	examine 	the
shortcomings of the evidence as they relate to his predecessors in
interest, namely, Diversified, Gobel, Smith, and Thomas.12
A. 	Diversified
¶36 	Diversified is arguably a predecessor in interest to all of
Hall’s properties.13 The trial court denied Peterson’s directed
verdict motion based on its conclusion that the evidence showed
that Peterson “would have known” that the Spur Road was
being built and that the Peterson Road was being regularly and
frequently used to facilitate that work. Peterson asserts that
insufficient evidence exists to support such an inference. In
11. Hall cannot individually establish an easement by estoppel
because he purchased all of his parcels after Peterson installed
the gate and changed the locks. Therefore, Hall could not have
substantially changed position on a belief that permission to use
the road would not be revoked because he bought the parcels
knowing he did not have Peterson’s permission to use the
Peterson Road.
12. The trial court concluded that “tacking” applies to easement
by estoppel such that Hall is entitled to an easement if he shows
that one of his predecessors in interest satisfies the requirements
for 	the 	easement. 	Because 	Peterson 	does 	not 	appeal 	this
determination, we have no occasion to review it.
13. Hall argues that, although Gobel did not testify and there
was no 	evidence 	on 	the 	historical 	ownership 	of 	the 	Gobel
properties, the evidence was enough to allow a jury to infer that
Gobel also received his property from Diversified.

Hall v. Peterson
20150459-CA 	20 	2017 UT App 226
support of the trial court’s ruling, Hall claims that the evidence
demonstrates that Peterson “gave express or implied permission
to [Diversified] to use his road to develop hundreds of acres of
otherwise 	landlocked 	property 	to 	the 	south 	of 	[Peterson’s]
property.” This conclusion is based on the premise that Peterson
“allowed the developer to use [Peterson’s] road to move heavy
machinery to build new roads and facilities, and stood by as the
developer subdivided the property to the south into numerous
small 	lots 	and 	marketed 	and 	sold 	those 	lots 	to 	countless
individual 	purchasers, 	all 	of 	whom 	had 	no 	access to 	their
property 	but 	for 	[the 	Peterson 	Road].” 	Hall 	argues 	that
permission to Diversified is further supported because “there
was also evidence from which the jury could infer that real estate
agents and prospective purchasers of [Diversified’s] property
frequently used the road.” Hall also argues that reliance by
others was both foreseeable to Peterson and was reasonable.
¶37 	We disagree. To begin, there is no evidence anywhere in
the record that Peterson gave Diversified express permission to
use the road and Hall points to none. Instead, Hall relies on
Peterson’s silence, arguing that the use of the road was so
pervasive—Diversified 	allegedly 	used 	the 	Peterson 	Road 	to
“transport heavy machinery, sales staff, and potential buyers to
the property”—that the jury could reasonably infer that Peterson
“would have known” that the Spur Road was being built and
that the Peterson Road was being regularly and frequently used
to facilitate that work.
¶38 	Peterson does not argue on appeal, nor did he argue at
trial, that the permission element for an easement by estoppel
cannot exist here because there was no overt act by Peterson
granting implied permission. We therefore have no occasion to
reverse on that particular ground, and we presume for purposes
of this appeal that permission may be granted by silence. See
supra ¶ 31. Even so, the evidence presented at trial does not
show that Peterson “would have known” about Diversified’s

Hall v. Peterson
20150459-CA 	21 	2017 UT App 226
use, as the trial court determined, and thus permitted Diversified
to repeatedly use the Peterson Road to develop properties that it
sold to “countless individual purchasers.”
¶39 	The evidence going to Diversified’s construction activity
beyond Buckhorn Flats is: (1) the existence of a Spur Road,
which would take a machine to grade, that provides some access
to lots Diversified sold; and (2) Smith’s testimony that, on a
single occasion, he saw a bulldozer in an area where Diversified
said it was selling lots.14 Neither documentary evidence nor
testimony from any Diversified witness was presented at trial
demonstrating 	that 	Diversified 	built 	the 	road 	or 	brought a
bulldozer to its property by use of the Peterson Road. No one
testified that they saw construction equipment actually doing
any work. This evidence, viewed in a light most favorable to the
verdict, at best shows that it is likely that Diversified conducted
some activity beyond Buckhorn Flats. And because the only road
access to the area is the Peterson Road, Diversified would likely
have used the Peterson Road to conduct that activity.
¶40 	But even assuming, based upon the scant circumstantial
evidence here, that Diversified built the Spur Road and brought
up a bulldozer by using the Peterson Road, an inference that
Peterson 	gave 	Diversified 	implied 	permission 	to 	use 	the
14. Hall testified that Diversified built the Spur Road. However,
Hall did not “see them build” the Spur Road, nor did Hall have
any documentation showing that Diversified built the Spur
Road. Hall’s testimony is speculative, see Speculation, Black’s Law
Dictionary (10th ed. 2014) (“The act or practice of theorizing
about matters over which there is no certain knowledge.”), and
provides 	“no 	competent 	evidence 	that 	would 	support” 	an
inference either that Diversified built the road or that Peterson
understood the purpose for which it was built, see Merino v.
Albertsons, Inc., 1999 UT 14, ¶ 3, 975 P.2d 467.

Hall v. Peterson
20150459-CA 	22 	2017 UT App 226
Peterson Road is unsupported because the evidence does not
show that Diversified’s alleged use of the road was sufficiently
pervasive to permit an inference that Peterson would have
known about the activity and acquiesced in it. See generally
Martin v. Cockrell, 335 S.W.3d 229, 238–39, 238 n.15 (Tex. App.
2010) (holding that the evidence was insufficient to show that a
landowner had a duty to make any representation, and therefore
was insufficient, as a matter of law, to support an easement by
estoppel where there was no evidence that a landowner was
aware 	of 	a 	user’s 	reliance 	on 	a 	pasture 	road 	to 	make
improvements to property beyond the road). We acknowledge
that 	mere 	silence 	can 	constitute 	implied 	permission 	for 	an
estoppel, but where silence is the basis for implied permission
the circumstances must be compelling, showing either “a legal
duty 	to 	speak,” 	or 	“something 	willful 	or 	culpable 	in 	the
silence.”15 See First Inv. Co. v. Andersen, 621 P.2d 683, 687 (Utah
15. Several cases have reviewed silence as a basis for estoppel
and held that, as a matter of law, it did not establish estoppel.
See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2003 UT 5,
¶¶ 11–12, 73 P.3d 320 (holding, in a case where a party argued
that IHC should have been estopped from requiring on-time rent
payments, 	that 	inaction 	for 	one 	month 	was 	insufficient 	to
establish 	estoppel 	because 	more 	than 	inaction 	or 	silence 	is
required); First Inv. Co. v. Andersen, 621 P.2d 683, 687–88 (Utah
1980) (holding that the defendants’ failure to respond to the
plaintiff’s three demand letters and threat of collection services
over roughly one and a half years did not establish a basis to
invoke estoppel); see also Storms v. Tuck, 579 S.W.2d 447, 450–53
(Tex. 1979) (holding that, in the context of an expanded use of an
existing easement, silence did not create an easement by estoppel
where, 	despite 	the 	fact 	that 	a 	landowner 	saw 	construction
equipment building a road, evidence did nothing to indicate
whether the landowner understood the planned use of the road);
Ramsey v. Champion, No. 10-12-00394-CV, 2014 WL 1882758, at
(continued…)

Hall v. Peterson
20150459-CA 	23 	2017 UT App 226
1980) (citation and internal quotation marks omitted). Again, it is
no small thing to acquire an interest in the land of another
through equitable estoppel, and the circumstances supporting
the estoppel should be certain, precise, and clear. See McClung v.
Ayers, 352 S.W.3d 723, 729 (Tex. App. 2011).
¶41 	First, the existence of the Spur Road provides no evidence
about the volume of traffic or pervasiveness of Diversified’s
alleged use. Despite the fact that the excavating contractors
agreed and testified that “it would take a machine” to build the
road, they did not testify that it would take more than a single
machine or more than a single day or even a few hours to cut a
dirt road, much less that it could only have been built by
Diversified as opposed to one or more of its buyers, for example.
It would be crucial for a factfinder to weigh how often machines
were 	moving 	across 	the 	Peterson 	Road, 	whether 	Peterson
actually observed this activity, or how often Peterson would
have been in a position to notice the construction activity. None
of these facts are in evidence. For all the evidence shows, the
Spur Road may have been a months-long project or may have
been built in a day (or in hours) when Peterson was not there to
object. And while we view the evidence in a light most favorable
to the jury verdict, we do not infer facts unsupported by the
evidence. See State v. Cristobal, 2010 UT App 228, ¶ 16, 238 P.3d
1096 (“When the evidence supports more than one possible
(…continued)
*4–5 (Tex. App. May 8, 2014) (holding that facts supporting
easement by estoppel were legally insufficient because, even
though the landowners saw improvements being made beyond
their property by use of a road, a duty to speak did not arise
where the user “has equal access to the facts” regarding rights of
access.); cf. Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d
935, 942 (Utah 1993) (announcing the standard for waiver and
that “the intent to relinquish a right must be distinct”).

Hall v. Peterson
20150459-CA 	24 	2017 UT App 226
conclusion, none more likely than the other, the choice of one
possibility over another can be no more than speculation[.]”).
¶42 	We 	next 	examine 	the 	evidence 	of 	a 	bulldozer 	on
Diversified’s property. Even assuming that Diversified used the
Peterson Road to deliver a bulldozer to the lots it was selling,
there is no evidence that Peterson was aware of it. And because
Hall relies on implied knowledge, there must be a showing that
Diversified’s use of the Peterson Road was so significant or
pervasive 	that 	Peterson 	would 	have 	known 	about 	it 	and
therefore 	implicitly 	granted 	permission 	by 	his 	silence. 	This
single bulldozer sighting, even in light of the existence of the
Spur Road, does not demonstrate pervasive use such that it can
be inferred that Peterson gave Diversified permission to use the
Peterson 	Road. 	On 	the 	contrary, 	it 	is 	equally 	likely 	that
Diversified simply used the road without permission.
¶43 	Next, the record does not support a finding that “real
estate 	agents 	and 	prospective 	purchasers 	of 	[Diversified’s]
property frequently used the road.” Smith testified that he had
an unidentified representative from Diversified drive him to his
property one time. Aside from that testimony, there are only two
possible references to real estate agents in evidence, neither of
which support the proposition Hall asserts.
¶44 	The first is from Sorensen, who testified that the first time
he visited his property with his real estate agent, he “hiked in,”
not that he drove directly to his property. Because he “hiked in”
to the property, there is no basis to conclude that he must have
used the Peterson Road. Therefore, Sorensen’s testimony does
not support an inference that sales staff and real estate agents
frequently used the Peterson Road.
¶45 	The second possible reference to a real estate agent is
from the deposition testimony of Matthews that was read at
trial. There, the questioning attorney interjected “Did a real
estate” during Matthews’s answer to a question about who was

Hall v. Peterson
20150459-CA 	25 	2017 UT App 226
present on a trip to visit property beyond the Peterson Road.
Even assuming that the attorney was asking whether a real
estate 	agent 	accompanied 	Matthews 	when 	he 	visited 	his
property, Matthews’s response was not an affirmative response
to that question because it did not include the name of a real
estate agent but the name of another property owner. Matthews
was simply remembering which owners were present.
¶46 	Thus, only Smith testified of a single instance where a
representative from Diversified drove him to the property, and
that 	testimony 	does 	not 	support 	Hall’s 	assertion 	that
Diversified’s real estate agents and sales staff frequently used the
road, much less that they did so with Peterson’s knowledge and
tacit 	permission. 	Smith’s 	testimony 	never 	mentioned 	seeing
Peterson, and therefore establishes nothing about the likelihood
that 	Peterson 	ever 	knew, 	or 	“would 	have 	known,” 	that 	a
representative from Diversified drove Smith to his property once
in the 1970s.
¶47 	Finally, no other testimony about the use of the Peterson
Road 	supports 	an 	inference 	of 	Diversified’s 	“extensive
development 	and 	sales 	campaign,” 	as 	Hall 	asserts. 	The
testimony at trial showed that other people—not Diversified—
used trucks or ATVs on the road for recreational purposes, for
the deer hunt back in the 1950s, and for sporadic visits to access
property beyond the Peterson Road. There is no testimony from
which a jury could reasonably infer that the Peterson Road was
regularly used by Diversified’s sales staff and potential buyers.
¶48 	The mere showing that the Spur Road exists and appears
to provide access to some of the lots that Diversified sold, that a
bulldozer was seen one time south of Peterson’s property, and
that a Diversified representative drove Smith to his property
once does not support an inference that Peterson permitted
Diversified to use the Peterson Road to build the Spur Road as

Hall v. Peterson
20150459-CA 	26 	2017 UT App 226
well 	as 	other 	“facilities”16 	as 	part 	of 	a 	new 	development.
Accordingly, there was insufficient evidence that Peterson gave
permission, implied or otherwise, for Diversified to use the
Peterson Road. Because all three elements of an easement by
estoppel must be proven, the claim fails for this reason alone and
the 	directed 	verdict 	should 	have 	been 	granted. 	However,
because the trial court addressed all three elements of easement
by estoppel, and in the event of further review, we proceed to
review the sufficiency of the evidence on the other elements as
well.
¶49 	Hall relies on the above arguments not only to show
implied 	permission 	by 	Peterson, 	but 	also 	to 	establish 	that
Peterson could foresee that Diversified would reasonably rely on
the 	purported 	permission 	and 	that 	Diversified 	would
substantially 	change 	its 	position 	reasonably 	believing 	that
permission would not be revoked.
¶50 	Consistent 	with 	the 	analysis 	above, 	we 	are 	similarly
unconvinced that the evidence shows circumstances where it is
foreseeable by Peterson that Diversified would substantially
change circumstances, believing that permission would not be
revoked.
¶51 	Hall does not argue that Peterson had a duty to notify
Diversified (or anyone else) that they could not use the Peterson
Road. Where, as here, a party relies on permission by silence, an
analysis of the reasonableness of that reliance must take into
account that it is silence, not an express grant oral or otherwise,
16. There was no evidence adduced at trial of any facilities
whatsoever beyond Buckhorn Flats. The testimony at trial was
that 	whatever 	dirt 	road 	exists 	beyond 	Buckhorn 	Flats 	is 	a
mountain road, overgrown by trees and brush. In particular, no
witness testified that the Spur Road showed evidence of frequent
use.

Hall v. Peterson
20150459-CA 	27 	2017 UT App 226
being relied upon. Because Peterson had no apparent duty to
restrict access to his land, it was unreasonable for Diversified to
rely 	on 	Peterson’s 	silence. 	See 	RJW 	Media, 	Inc. 	v. 	CIT
Group/Consumer Fin., Inc., 2008 UT App 476, ¶ 34, 202 P.3d 291
(“Because 	CIT 	had 	no 	duty 	to 	inform 	RJW 	of 	a 	possible
procedural defect, not only was it unreasonable for RJW to rely
on CIT’s silence, but CIT’s silence cannot be construed as an
inconsistent 	act 	sufficient 	to 	establish 	an 	equitable 	estoppel
claim.”). Consequently, the trial court erred in concluding that it
would be reasonable to foresee that Diversified would rely on
Peterson’s failure to restrict use of the Peterson Road, because
Peterson was under no obligation to act.
¶52 	Also, 	no 	one 	from 	Diversified, 	through 	hearsay 	or
otherwise, testified that it relied on the Peterson Road for access.
Further, there is no evidence that Peterson was aware that
Diversified or anyone else used the road. For it to be reasonably
foreseeable that the users would rely on implied permission, the
traffic on the Peterson Road would have had to have been so
significant that, although Peterson was not aware of any of it, he
should have been aware under the circumstances. See Martin v.
Cockrell, 335 S.W.3d 229, 238 (Tex. App. 2010) (citation and
internal quotation marks omitted) (“The duty to speak does not
arise until the silent party is himself aware of the facts.”). This
showing of pervasiveness is exactly what is lacking here. The
evidence does not demonstrate a bustling real estate enterprise,
but instead shows, at best, and construing the evidence in Hall’s
favor, meager use by Diversified coupled with sporadic and
recreational use by entities other than Diversified. The mere
existence of the Spur Road and the paltry use of that road
demonstrated 	at 	trial 	are 	insufficient 	to 	show 	both 	that
Diversified relied on the Peterson Road and that Peterson could
foresee that Diversified would change its position based on that
reliance.

Hall v. Peterson
20150459-CA 	28 	2017 UT App 226
¶53 	In sum, the evidence shows (1) the existence of a Spur
Road, which would take a machine to grade, that provides some
access to lots that Diversified sold, (2) that Smith saw a bulldozer
in an area south of Peterson’s property once in the 1970s, and
(3) that an unidentified representative from Diversified drove
Smith to his lot once in the 1970s. To conclude, based on this
evidence, that Peterson gave permission to Diversified to use the
Peterson 	Road 	to 	build 	and 	develop 	a 	new 	mountain
community, and thus to diminish Peterson’s property rights by
estoppel, is not reasonable. We conclude, as a matter of law,
“that reasonable minds would not differ on the facts to be
determined from the evidence presented.” See Mahmood v. Ross,
1999 UT 104, ¶ 18, 990 P.2d 933 (citation and internal quotation
marks omitted). Therefore, Peterson’s motion for a directed
verdict should have been granted with regard to Diversified. See
id. We acknowledge that, while trying to view the evidence in a
light favorable to Hall, the trial court concluded that “[i]t would
be hard for [Peterson] not to know [the Spur Road was] being
built” 	and 	that 	based 	on 	that 	knowledge, 	“[i]t 	would 	be
reasonable for him to foresee or to believe that others intended
to use that road to access that spur road that was being built.”
However, even when viewed in a light favorable to Hall, the
evidence cannot support those conclusions.
B. 	Gobel
¶54 	Peterson asserts, correctly, that there was no evidence
presented at trial showing the historical ownership of the Gobel
properties. Hall argues in response that the jury could infer from
the 	evidence 	that 	Gobel 	purchased 	his 	properties 	from
Diversified. Further, Hall argues that “[e]ven though [Gobel] did
not testify at trial, a jury could nevertheless reasonably infer that
[Hall] had established his easement by estoppel claim with
respect to [Gobel’s] lots through [Diversified].” We disagree. The
paucity of evidence 	leaves no room for such 	an 	inference.
Moreover, given our disposition on the easement by estoppel

Hall v. Peterson
20150459-CA 	29 	2017 UT App 226
through Diversified, see supra Part II.A., we likewise conclude
that, even if it were established that Diversified sold the lots to
Gobel, the easement by estoppel claim through Gobel as a
predecessor in interest fails.
C. 	Smith
¶55 	The evidence does not support an easement by estoppel
through Smith. Hall argues that “[t]he Smiths purchased their
property from [Diversified], and [Peterson] was on notice that
[Diversified] was developing and marketing lots within the
development to individual[s] such as the Smiths. This evidence
allowed the jury to reasonably infer that [Peterson] granted
express or implied permission to the Smiths to use the [road].”
Not really. There is no evidence to support such an inference.
Rather, 	this 	is 	a 	repackaged 	argument, 	turning 	on 	the
proposition 	that 	Peterson’s 	implied 	permission 	to 	Smith 	is
dependent on the implied permission allegedly given to Smith’s
predecessor in interest, Diversified. Given our analysis of the
insufficiency of the evidence as it relates to Diversified, see supra
Part II.A., we reject Hall’s argument here as well.
¶56 	Hall primarily relies on Diversified to show that Peterson
gave Smith implied permission to use the Peterson Road. But
insofar as Hall relies directly on Smith, the evidence does not
show that Smith had an easement by estoppel. Smith visited his
property three times after acquiring it in the early 1970s; he
drove 	there 	once 	with 	someone 	from 	Diversified 	just 	after
agreeing to purchase the property, and he drove there twice
more 	before 	roughly 	1985. 	Smith 	did 	not 	testify 	that 	he
purchased the property relying on permission from Peterson, or
that he even knew he was crossing Peterson’s property.17 There
17. Smith and others may have believed that they had a right to
drive all the way to their respective lots, but that has nothing to
(continued…)

Hall v. Peterson
20150459-CA 	30 	2017 UT App 226
is no evidence that Peterson ever gave permission to Smith or
even that Peterson knew that Smith existed. These three visits
over a span of roughly forty years cannot show that Peterson
implicitly gave permission to Smith to use the Peterson Road,
much less that it would be foreseeable to Peterson that Smith
would rely on that permission. We conclude, as a matter of law,
“that reasonable minds would not differ on the facts to be
determined 	from 	the 	evidence 	presented,” 	and 	therefore
conclude that Peterson’s motion for a directed verdict should
have been granted with regard to the lots owned by Smith. See
Mahmood v. Ross, 1999 UT 104, ¶ 18, 990 P.2d 933 (citation and
internal quotation marks omitted).
D. 	Thomas
¶57 	Our analysis of the evidence pertaining to Thomas as a
predecessor 	in 	interest 	is 	identical 	to 	our 	above 	analysis
pertaining to Smith. Hall again argues the jury could reasonably
infer implied permission given to Thomas as a successor to
Diversified. No such inference is reasonable.
¶58 	Like Smith, Thomas’s own use of the road similarly fails
to 	establish 	an 	easement 	by 	estoppel. 	Thomas 	visited 	the
property “three, maybe four” times since the 1970s. There is no
evidence that Peterson ever gave permission to Thomas or ever
knew that Thomas existed. Thomas did not testify that she
purchased the property relying on permission from Peterson,
nor that she even knew she was crossing Peterson’s property.
Her visits are not evidence of circumstances suggesting that
Peterson implicitly gave permission to use his land, or that it
would 	be 	foreseeable 	that 	Thomas 	would 	rely 	on 	that
permission, such that Peterson’s property rights are diminished
(…continued)
do with permission granted by Peterson, nor Peterson’s ability to
foresee reliance on that privately held belief.

Hall v. Peterson
20150459-CA 	31 	2017 UT App 226
by the creation of an easement. “[R]easonable minds would not
differ 	on 	the 	facts 	to 	be 	determined 	from 	the 	evidence
presented,” and Peterson was entitled to a directed verdict. See
Mahmood, 1999 UT 104, ¶ 18 (citation and internal quotation
marks omitted).
E. 	Cumulative Effect of the Evidence
¶59 	The sum of the evidence shows, at best, (1) the existence
of an simple dirt road, which would take a machine to grade,
with no evidence of how long it would take to grade it, that
provides access to some lots that Diversified sold, (2) that an
unidentified representative from Diversified drove Smith to his
lot once in the 1970s, (3) that Smith saw a bulldozer in an area
south of Peterson’s property once in the 1970s, and (4) that
people have variously used trucks or ATVs on the road for
recreational purposes, for the deer hunt back in the 1950s, and
for isolated and sporadic visits to access property beyond the
Peterson Road. The above analysis shows that the elements
argued at trial for easement by estoppel—(1) permission, (2)
foreseeability by the landowner that the user will rely on that
permission, and (3) substantial change of position by the user
based on the belief that permission will not be revoked—can
neither be met by the evidence concerning Hall’s own use of the
Peterson Road, nor by his predecessors’ use of the Peterson
Road. 	Particularly, 	the 	evidence 	cannot 	show 	that 	Peterson
granted permission, express or implied, to Hall or any of his
predecessors in interest to access property beyond Buckhorn
Flats because the evidence does not establish actual permission
and, as to implied permission, the evidence demonstrates that
the use was so minimal over the last forty years that implied
permission cannot reasonably be inferred.18
18. If pervasive use had been shown, it might be reasonable to
infer that Peterson gave permission, at least impliedly, as it
(continued…)

Hall v. Peterson
20150459-CA 	32 	2017 UT App 226
¶60 	To 	suggest 	that 	an 	easement 	by 	estoppel 	is 	legally
supported through a showing of various entities’ cumulative use
of property that was generally open for many years, the notion is
misguided under the facts of this case. As noted above, “[t]he
gravity of a judicial means of acquiring an interest in land of
another 	solely 	by 	parol 	[evidence] 	requires 	that 	equitable
estoppel be strictly applied, and the estoppel should be certain,
precise and clear.” McClung v. Ayers, 352 S.W.3d 723, 729 (Tex.
App. 2011) (footnote, citations, and internal quotation marks
omitted). An easement by estoppel was not created merely
because Peterson, as an owner of recreational property, failed to
post guards or otherwise preclude trespassers from traversing
his property when no evidence suggests he was present to
object. It is unreasonable to interpret Peterson’s silence here as
permission, and it would be unreasonable to hold that the
sporadic use of the Peterson Road, as demonstrated by the
evidence, is “certain, precise and clear” enough to establish an
easement. See id. (citation and internal quotation marks omitted).
III. Remaining Claims
¶61 	Peterson 	also 	appeals 	the 	trial 	court’s 	ruling 	as 	to
(1) Peterson’s 	denied 	judgment 	notwithstanding 	the 	verdict,
(2) the scope of the easement, and (3) the prevailing party at trial.
Because we hold that the trial court erred in denying Peterson’s
directed verdict, the issue of a judgment notwithstanding the
verdict is moot. Likewise, we need not review the scope of the
easement. And because we reverse the trial court’s denial of
Peterson’s motion for a directed verdict, Hall is no longer the
prevailing party.
(…continued)
would be fair to assume he saw traffic on multiple occasions on
the Peterson Road and never said anything about it, thereby
impliedly giving permission to its continuation.

Hall v. Peterson
20150459-CA 	33 	2017 UT App 226
CONCLUSION
¶62 	The evidence at trial was insufficient to establish an
easement by estoppel as to Hall or any of his predecessors in
interest. We reverse the trial court’s denial of Peterson’s directed
verdict motion and remand to the trial court for proceedings
consistent with this ruling.