M.N.V. Holdings v. 200 South

2021 UT App 76

THE UTAH COURT OF APPEALS

M.N.V. HOLDINGS LC,
Appellant,
v.
200 SOUTH LLC,
Appellee.

Amended Opinion 1
No. 20200626-CA
Filed July 9, 2021

Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 190909142

Scott O. Mercer and J. Adam Knorr,
Attorneys for Appellant
Greggory J. Savage and Gregory S. Roberts,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.

HARRIS, Judge:

¶1 M.N.V. Holdings LC (MNV) claims to own a prescriptive
easement across property owned by 200 South LLC (Developer),
and filed a lawsuit seeking recognition of that easement. The
district court dismissed MNV’s suit on summary judgment, and
MNV now appeals. We reverse and remand.

1. This Amended Opinion replaces the Opinion in Case No.
202000626-CA, issued on June 10, 2021. After our previous
opinion issued, MNV filed a petition for rehearing. We grant the
petition, and hereby amend footnote 9 as requested.
M.N.V. Holdings v. 200 South

BACKGROUND

¶2 Developer recently purchased two contiguous parcels
of property (the Property) on the northwest corner of 200
South and State Street in downtown Salt Lake City. Over
the past few decades, the Property has been occupied by a
fast-food restaurant and a surrounding parking lot. However,
Developer has received approval from municipal authorities
to construct a high-rise apartment building, known as
Kensington Tower, on the Property, and intends to begin
construction in summer 2021.

¶3 MNV owns two contiguous parcels of property (the
MNV Parcels) located along State Street immediately to
the north of the Property; one of the parcels is occupied by
a pawn shop and the other by a retail tobacco specialty
store.2 MNV has owned one of the parcels since 1995, and
it purchased the other in 2018. Both of the MNV Parcels
have storefronts abutting State Street, but have no area
for parking along State Street; the only available parking on
the MNV Parcels is found on the west side (that is, the back
side) of the parcels, where there is “limited vehicle parking and
a garbage collection area.” At any given time, “up to four
to five” cars can be parked “directly behind [the] building”
in this area. But due to the configuration of the MNV Parcels
and surrounding properties, the MNV Parcels’ rear parking
area can be accessed only by crossing someone else’s property:
either by crossing the Property’s parking lot via access from
State Street or 200 South, or by crossing another adjacent

2. Attached to this opinion as Appendix A is a visual depiction
of the four parcels and their location relative to one another, as
well as the three paths across the Property that MNV asserts
qualify as prescriptive easements.

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landowner’s property via access from a side street known as
Plum Alley. 3

¶4 MNV asserts—and we assume, given the procedural
posture of this appeal, that MNV’s assertions are true 4—that, for
at least twenty years, its employees and invitees (collectively, the
MNV Invitees) have crossed the Property’s parking lot, on more
or less a daily basis, to access the small parking area on the west
side of the MNV Parcels. However, because the Property lies on
a corner, and has at least three different curb cuts providing
public access points for automobiles, the MNV Invitees have not
always used the exact same route to cross the Property.
Sometimes, the MNV Invitees would enter the Property from a
State Street curb cut, just north of the fast-food restaurant, and
make their way west over the Property parking lot to reach the
MNV Parcels’ parking area (Route 1). Other times, the MNV
Invitees would enter the Property from a curb cut along 200
South, immediately west of the fast-food restaurant, and travel
north and then west across the Property parking lot to reach the
MNV Parcels’ parking area (Route 2). And on still other
occasions, the MNV Invitees would enter the Property from its
westernmost 200 South curb cut, and travel north across the
Property parking lot to reach the MNV Parcels’ parking area

3. MNV’s entitlement to a prescriptive easement over the other
neighbor’s property, via access from Plum Alley, is not at issue
in this case. Nevertheless, MNV asserts that its employees and
invitees accessed the MNV Parcels’ back parking area from Plum
Alley only rarely, if ever.

4. “In reviewing a district court’s grant of summary judgment,
we view the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party and recite the
facts accordingly.” Pipkin v. Acumen, 2020 UT App 111, n.1, 472
P.3d 315 (quotation simplified).

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(Route 3). While all three of the Routes use different points to
access the Property, all three have the same endpoint: the
northwest corner of the Property, adjacent to the MNV Parcels’
back parking area.

¶5 Usage of the three Routes varied depending on which
direction the MNV Invitees were coming from, which direction
they were going, and the time of day; sometimes the MNV
Invitees would use one Route, and sometimes another. For
instance, one MNV employee averred that it was “easier to turn
. . . left on 2[00] South than it would be to turn left on State
Street,” and as a result she would more often use one of the 200
South entry points (Routes 2 and 3), rather than the State Street
entry point (Route 1). Another employee stated that he usually
turned left onto the Property via the State Street curb cut (Route
1) because he would often “be coming north” via State Street on
his commute. And the longtime owner of the pawn shop
maintained that customers or vendors bringing “large items” to
sell would often use Route 1 to access the MNV Parcels’ parking
area to deliver their items. But despite variations in use by
particular individuals on particular days, the MNV Invitees—
viewed in the aggregate—claim to have used all three Routes
interchangeably, regularly, and continuously for over two
decades.

¶6 After learning of Developer’s plans to construct
Kensington Tower, MNV filed this lawsuit in November 2019,
seeking a declaratory judgment recognizing the existence of a
“prescriptive easement over the [Property] and quiet[ing] title to
such easement in favor of MNV.” During discovery, several of
the MNV Invitees were deposed and testified about their own
use, and their observations of others’ use, of the Property to
access the back side of the MNV Parcels, as described above.
After completion of discovery, both parties filed motions for
summary judgment. In its motion, MNV asserted that there was
“no genuine dispute that MNV me[t] each element of its

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M.N.V. Holdings v. 200 South

prescriptive easement claim,” and asked the court to enter
judgment in its favor recognizing the easement. For its part,
Developer asserted in its motion that MNV had failed, as a
matter of law and undisputed fact, “to demonstrate a
prescriptive easement that follows a definite and certain path.”
In essence, it argued that, because the MNV Invitees had used
three different pathways over the years, rather than just one,
MNV could not prove continuous use over any particular route.

¶7 After full briefing and argument, the district court
granted Developer’s motion and denied MNV’s. The court
determined that the MNV Invitees’ use of the Property “was not
continuous . . . because they used three separate claimed paths to
or from the different curb cuts,” and concluded that therefore
“MNV’s prescriptive easement claim fail[ed] as a matter of law.”

ISSUE AND STANDARD OF REVIEW

¶8 MNV now appeals the district court’s order granting
Developer’s summary judgment motion. 5 We review a district
court’s summary judgment ruling “for correctness, giving no
deference to the [district] court’s decision.” See Bahr v. Imus, 2011
UT 19, ¶ 16, 250 P.3d 56.

ANALYSIS

¶9 The main question presented by MNV’s complaint is
whether MNV has acquired a prescriptive easement over the
Property. “To attain legal recognition of a prescriptive easement
in Utah, the claimant must prove by clear and convincing

5. As we interpret its briefs, MNV does not challenge the court’s
denial of its own motion for summary judgment, and instead
asks us only to reverse the court’s grant of Developer’s motion.

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evidence that the claimant’s use of another’s land” was (1) “open
and notorious,” (2) “continuous,” and (3) “adverse” (4) “for a
period of twenty years.” Judd v. Bowen, 2017 UT App 56, ¶¶ 10,
16–33, 397 P.3d 686 (quotation simplified), cert. review revoked,
2018 UT 47, 428 P.3d 1032 (written opinion dismissing
previously-granted certiorari petition as improvidently granted);
accord Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 28, 466 P.3d
107. The district court granted Developer’s motion for summary
judgment, ruling that MNV could not make the necessary
showing. In particular, the court grounded its ruling in the
second element listed above, and determined that, as a matter of
law, MNV could not show continuous use of any particular
route for the requisite twenty years. Because the court’s ruling
was based entirely on its belief that MNV had failed to make the
requisite showing on that second element, we focus our analysis
on that element.6

¶10 The second element requires MNV to show that its use of
the Property was “continuous” during the entire twenty-year
prescriptive period. See Judd, 2017 UT App 56, ¶ 10. The district

6. Near the end of its brief, Developer discusses an additional
element, and contends that we may affirm the district court’s
decision on an alternative ground that the court did not
consider—that MNV’s use of the Property was not open and
notorious—and asserts that such a determination is “apparent
on the record.” (Quoting Compton v. Houston Cas. Co., 2017 UT
17, ¶ 13, 393 P.3d 305.) We recognize that, on remand, the parties
and the court may need to analyze whether MNV can make the
showing required by that first element, and we make no
determination here about whether it will ultimately be able to do
so. But it is not apparent, as a matter of law, from the record
before us that MNV would not be able to make that showing,
and in this case we think it best for the district court to grapple
with that question in the first instance.

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court determined, as a matter of law, that MNV’s use was not
continuous because “MNV’s use was not confined to a regular
route” but instead was dispersed over “three separate claimed
paths to or from the different curb cuts.” In reaching this
conclusion, the district court relied on Lund v. Wilcox, 97 P. 33
(Utah 1908), a case in which a prescriptive easement claimant
had established a dirt “roadway” over a neighbor’s “wild,
uncultivated, and unfenced” property, which roadway
“practically remained in the same place” over the prescriptive
period, except for a portion that was altered to avoid a
“washout” that occurred partway through the prescriptive
period. Id. at 34. Thus, the claimant used one path prior to the
washout, then used a somewhat different path after the washout,
and needed both time periods to count in order to meet the
twenty-year requirement. Id. at 34–35. In that case, our supreme
court determined that the claimant’s change of route during the
prescriptive period was “a deviation” that “destroy[ed] the
continuity of use required” to establish a prescriptive easement.
Id. at 35 (also stating that “[t]his change broke the continuity of
use by [the claimant]”).

¶11 In our view, the district court’s reliance on Lund was
misplaced. In Lund, the claimant at no point asserted that he had
used both routes during the same time period; rather, he used
one route for a period of time, then switched to the other
following the washout. See id. at 34. But he had not used either of
the two routes in question for a lengthy enough period of time to
satisfy the twenty-year requirement for either one individually,
and was therefore trying to combine his years of use over the
first route with his years of use over the second route. See id. at
34–35. This the court refused to allow, stating that “a prescriptive
right of way cannot be acquired by tacking together two distinct
periods of use of two separate ways, though one was abandoned
for the other with the consent of the landowner, and the two
periods together would amount to the prescriptive time requisite
to give a prescriptive right of way.” Id. at 35 (quotation

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simplified). 7 However, the situation presented here is
fundamentally different than the situation presented in Lund: in
this case, MNV claims to have used all three Routes for the
requisite twenty-year period, and at no point—whether due to a
“washout” or for any other reason—does it appear to have
abandoned its use of any of the Routes. Thus, Lund simply does
not speak to the question at hand: whether a claimant can satisfy
the second element of the prescriptive easement test by
continuously using multiple distinct routes across the servient
estate for the duration of the relevant prescriptive period.

¶12 We are unaware of any other Utah authority that speaks
to this question. But although Utah appellate courts have

7. As discussed in Lund v. Wilcox, chronological “tacking” of this
nature, from one path to another, is generally not allowed. See 97
P. 33, 35 (Utah 1908). However, where an easement claimant
makes only “slight deviations” to a path over time, continuity is
maintained because the route did not actually change, and
therefore no tacking is required. See Warsaw v. Chicago Metallic
Ceilings, Inc., 676 P.2d 584, 587 (Cal. 1984) (stating that “the line
of travel over a roadway which is claimed by prescription . . .
must be certain and definite,” but that “slight deviations from
the accustomed route will not defeat an easement” (quotation
simplified)). The outcome of Lund indicates at least an implicit
ruling by the court that the differences between the pre-washout
route and the post-washout route were too great to allow the
two paths to be considered the same route. See 97 P. at 35.
Similarly, in this case—although each time a particular path was
taken there might have been some “slight deviations” in the
precise line of travel—the differences between the three Routes
themselves are too great to consider any one Route a mere
“slight deviation” from another; the three Routes therefore
constitute three distinct paths. But as noted, MNV does not seek
to apply chronological “tacking” to prove its claim.

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apparently not yet had opportunity to encounter this situation,
courts from other states have. And those courts have determined
that a claimant’s use of “two or more routes” over the servient
estate for the duration of the prescriptive period does not defeat
the claim, but merely necessitates “the need for particular
findings concerning the nature, frequency and duration of the
use of each route.” See Roberts v. Swim, 784 P.2d 339, 344 (Idaho
Ct. App. 1989) (emphasis added); see also Leichtfuss v. Dabney,
2005 MT 271, ¶¶ 10–16, 35, 35 nn.6–7, 122 P.3d 1220 (explaining
the historic use of two separate routes over the servient estate
“for ingress and egress” to and from the dominant estate for the
prescriptive period, and considering the existence of an
easement over one route separately from the other); Tilkov v.
Duncan, Nos. 69615-7-I, 70092-8-I, 2014 WL 3741629, at *2, *4
(Wash. Ct. App. July 28, 2014) (considering prescriptive
easement claims over two adjacent pathways across the same
property to be separate claims and concluding that res judicata
did not bar consideration of the instant easement claim on the
second path because the “claims in the two cases almost
certainly involve different evidence and infringement of
different rights because the claims relate to different paths”); cf.
Jordan v. Bailey, 944 P.2d 828, 832–34 (Nev. 1997) (per curiam)
(separately considering each of three claims for prescriptive
easements over three distinct routes across the same servient
property, and concluding that the elements had not been met for
one of the claims but had for the other two).

¶13 Three such cases are particularly instructive. First, in Five
Forks Hunting Club, LLC v. Nixon Family Partnership, 584 S.W.3d
685 (Ark. Ct. App. 2019), a lower court recognized “two
separately defined prescriptive easements” over both a road and
a ditch across the servient estate, finding that the claimant used a
road (by car or foot) to access its property most of the time, but
also regularly and continuously used a ditch (by boat) whenever
the servient property was flooded. Id. at 688, 692–93. On appeal,
the servient estateholder argued that the lower court had

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committed error by recognizing easements over both the road
and the ditch, but the appellate court was unconvinced,
determining that the lower court’s ruling was proper, and that
the claimant had demonstrated continuous use of both routes, as
conditions dictated, and was therefore entitled to an easement
over both of them. Id. at 699–700. Similarly, in Roberts v. Swim,
the claimant presented evidence that he had continuously “used
two or more routes” to access his ranch via “two creek roads”
across the servient estate. See 784 P.2d at 341–42, 344. The
appellate court remanded the matter back to the lower court
with instructions to analyze each claimed route separately,
stating that such “circumstances . . . suggest the need for
particular findings concerning the nature, frequency and
duration of the use of each route for which a claim of easement is
made.” Id. at 344; see also id. at 345 (stating that, on remand, the
lower court should “make a determination” about “whether [the
claimant] used one line of travel or both for the requisite
prescriptive period” (emphasis added)). Finally, in Vivian Scott
Trust v. Parker, 2004 S.D. 105, 687 N.W.2d 731, the court was
presented with facts strikingly similar to those at issue here: the
claimant presented evidence that its invitees had continuously
used two entrances and two routes to cross a parking lot on the
servient estate to reach its property. Id. ¶ 2. The lower court
recognized a prescriptive easement in that situation, and the
appellate court affirmed, despite the fact that two routes had
been used to cross the parking lot during the prescriptive period.
Id. ¶¶ 5–8.

¶14 We find the analysis applied in these cases not only
persuasive, but also consistent with existing pronouncements of
Utah appellate courts regarding the “continuous” element of the
prescriptive easement test. For instance, we have stated that

the continuity required to establish a prescriptive
easement does not entail frequent or constant use.
Rather, all that is necessary is that the use be as

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M.N.V. Holdings v. 200 South

often as required by the nature of the use and the
needs of the claimant. Thus, the frequency of use is
not critical, and continuity can be established if the
claimant can show that he made use of the
landowner’s property whenever desired or
required under the circumstances.

Judd v. Bowen, 2017 UT App 56, ¶ 16, 397 P.3d 686 (quotation
simplified), cert. review revoked, 2018 UT 47, 428 P.3d 1032. In
addition, our supreme court has recognized that “there ‘are two
aspects to the requirement that a prescriptive use be continued
for the prescriptive period: one mental, the other physical.’”
Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 29, 466 P.3d 107
(quoting Restatement (Third) of Prop.: Servitudes § 2.17 cmt. i
(Am. Law Inst. 2000)). And the Restatement comment relied on
in Harrison further clarifies that “[t]he physical aspect . . . does
not require that actual physical use be made constantly, or even
frequently.” Restatement (Third) of Prop.: Servitudes § 2.17 cmt.
i. 8 Indeed, “[s]easonal uses, intermittent uses, and changing uses

8. Developer points us to comment h in this Restatement section,
and specifically its statement that “[c]laims for rights of way
must be based on uses that are substantially confined to a
regular route.” See Restatement (Third) of Prop.: Servitudes
§ 2.17 cmt. h (Am. Law Inst. 2000). However, comment h relates
to the “open and notorious” element of a prescriptive easement
claim, not the “continuous” element, compare id., with id. cmt. i,
and the reason offered for the quoted rule is “so that the
landowner [can] be aware that an adverse use is being made,”
consistent with the “open and notorious” element, see id. cmt. h.
As noted, supra note 6, this opinion generally does not concern
itself with the “open and notorious” element. And in any event,
the three Routes at issue here are all distinct regular paths that
can be plotted on a map, see Appendix A; see also supra note 7,
and MNV’s use was confined to the three discrete Routes and
(continued…)

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all may meet the continuity requirement so long as they are open
or notorious.” Id.; accord Five Forks, 584 S.W.3d at 699–700
(recognizing the ability to establish continuity over two separate
routes when the claimant shows that it “historically used either
[route], depending on the circumstances and conditions”).

¶15 Accordingly, we conclude that, under Utah law, a
claimant’s use of multiple distinct routes over the servient estate
does not, by itself, operate to defeat the claimant’s ability to meet
the “continuous” element of the prescriptive easement test. In
such a situation, the court should analyze each claimed route on
its own merits, and if the claimant can establish continuous use
of at least one route for the requisite prescriptive period, then the
continuity element will have been met for at least that route.

¶16 However, even if a claimant is able to show continuous
use of more than one route over the servient estate for the
requisite number of years, that claimant is not necessarily
entitled to multiple easements. In that situation, the court may,
as a matter of equity, choose to designate only one of the proven
routes as the defined prescriptive easement, or redefine the path

(…continued)
was not “indiscriminate over an entire area,” see 28A C.J.S.
Easements § 32 (June 2021 update) (stating that the prescriptive
easement requirements are “not satisfied when the use is
indiscriminate over an entire area”). Therefore, despite
Developer’s argument to the contrary, comment h is not
inconsistent with our conclusion that multiple “regular route[s]”
may be alleged, each of which the claimant uses consistently
depending on the circumstances, “so long as there is sufficient
continuity that the servient owner would not reasonably be led
to believe that one use had been abandoned and a new one
begun.” See Restatement (Third) of Prop.: Servitudes § 2.17,
cmt. h.

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to avoid unduly burdening the servient estate. 9 See, e.g., Bedik
Corp. v. Herrick Road Holdings LLC, 90 N.Y.S.3d 839, 840, 843
(N.Y. Sup. Ct. 2018) (finding that the plaintiff had established
“an easement by prescription over” the servient estate through
use “by trucks delivering and receiving goods to and from” the
plaintiff’s property, and recognizing that, “given the varying
paths used by the trucks, equity dictates . . . that the right-of-way
be limited to the area necessary for the purpose of the
easement”); see also Five Forks, 584 S.W.3d at 693–94, 699–700
(affirming a court’s equitable ability to grant access via either of
two routes, “depending upon the circumstances and
conditions”). After all, easement claims are governed by
equitable principles, see Jensen v. Brown, 639 P.2d 150, 151 (Utah
1981) (recognizing that a prescriptive easement claim “is a suit in
equity”), abrogated on other grounds by RHN Corp. v. Veibell, 2004
UT 60, 96 P.3d 935, and courts may apply such principles to limit
the scope of the defined easement or otherwise accommodate the
servient estate, see SRB Inv. Co. v. Spencer, 2020 UT 23, ¶¶ 21 n.32,
22, 463 P.3d 654 (“Even though courts will almost always
consider the physical dimensions of the land used, as well as the
frequency and intensity of that use, the ultimate criterion in
determining the scope of a prescriptive easement is that of
avoiding increased burdens on the servient estate. So courts
should consider any and all factors that may contribute to that
burden.” (quotation simplified)).

9. Indeed, MNV is only asking for any one of the Routes to be
decreed as the designated route in its easement, stating in its
brief that it “would be satisfied with a single, defined access
route.” And at oral argument before this court, MNV reiterated
that it only “need[s] to access [its] parking lot via one path,” and
is willing to “accommodate” changes to the designated route, as
long as Kensington Tower is built “in such a way that [MNV]
can continue to have [its] access.”

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CONCLUSION

¶17 A prescriptive easement claimant who has used more
than one distinct path across a servient estate is not disqualified
from meeting the second element of the prescriptive easement
test—continuity—merely because it used multiple paths. Each
distinct path or route should be evaluated individually, on its
own merits. The district court therefore erred by determining as
a matter of law that MNV is unable to demonstrate the requisite
continuity. Because that was the only basis upon which the court
granted Developer’s motion and dismissed MNV’s claim, we
reverse the grant of summary judgment in Developer’s favor
and remand the case for further proceedings consistent with this
opinion. 10

¶18 To be clear, we stop short of conclusively determining
that MNV can demonstrate the requisite continuity—or any
other element of the prescriptive easement test—at trial; as noted
above, see supra note 5, MNV has not challenged the district
court’s denial of its motion for summary judgment. We hold
only that MNV’s prescriptive easement claim should not have
been dismissed as a matter of law on summary judgment on the

10. We are aware of MNV’s motion, filed with this court on April
26, 2021, asking us, “pending [our] decision” in this case, “to stay
[Developer]’s construction efforts to avoid a mootness issue.”
However, now that we have decided the case, the motion to stay
filed with this court is now itself moot, and any decision about
staying construction of Kensington Tower will need to be made
by the district court in the first instance. See Koyle v. Davis, 2011
UT App 196, ¶ 7, 261 P.3d 100 (per curiam) (recognizing that our
resolution of a case on appeal “renders the motion to stay
moot”); see also Utah R. App. P. 8(a) (stating that motions to stay
a judgment pending appeal “must ordinarily be made in the first
instance in the trial court”).

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basis offered by the district court. The determination of whether
a claimant’s “use was continuous . . . require[s] [a] highly-factual
inquir[y],” Judd v. Bowen, 2018 UT 47, ¶ 15, 428 P.3d 1032, and a
decision as to whether MNV has met its burden to show
continuity will require “particular findings concerning the
nature, frequency and duration of the use of each route,” see
Roberts v. Swim, 784 P.2d 339, 344 (Idaho Ct. App. 1989). On
remand, the court will need to engage in the necessary factual
inquiry and make particular findings with regard to each Route
before it can be established that MNV continuously used any (or
all) of the three Routes.

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Parking Jeanie's Smoke

Parking Pawnbrokers

Developer
Parcel Route 1

Developer Parcel

Carl's Jr.

Route 3 Route 2